New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 5900074 NYC: 241045

FINDINGS OF FACT AND DECISION

Student's Name: REDACTED

School District: REDACTED

Hearing Requested By: Parent

Record Closed Date: June 6, 2023

Hearing Officer: Dora M. Lassinger

The student’s parents filed a request for an impartial hearing on October 26, 2022 challenging the Department of Education’s (“DOE”) failure to provide the student with a Free Appropriate Public Education (“FAPE”) for the 2021-2022 and 2022-2023 school years, and requesting funding for tuition and related services at the REDACTED School (hereinafter “the private school”), transportation and compensatory education. (Par. Ex. A).^[1] I was designated to hear this matter on December 23, 2022.

An amended due process complaint also dated October 26, 2022 was filed on December 15, 2022, with similar allegations and requests for relief; and was consented to on January 26, 2023.

A pre-hearing conference was held on January 31, 3023, and the compliance date was extended for trial preparation and due to extensive testimony/issues. (IHO Ex. III). A hearing on the merits commenced on March 22, 203 and concluded on May 15, 2023. Department of Education (“DOE”) Position

The DOE’s position is that it provided the student with a FAPE for both of the school years at issue, and that therefore the parents are not entitled to any of the relief requested. (IHO Ex. II). Parent’s Position

The parents’ position is that the DOE failed to provide the student with a FAPE for either school year, that the unilateral placement is appropriate (for the 2022-2023 school year) and that equitable considerations support their request for reimbursement for tuition.

The parents argue that the DOE delayed in implementing the student’s existing IEP during the 2021/2022 school year; that the program provided was inadequate to meet the student’s needs, and that compensatory education consisting of 400 hours of tutoring is warranted. (IHO Ex. III; Tr. pp. 67-69).

Evidence at Hearing

The student attended public schools through her eighth-grade year. She experienced academic difficulty during her fifth-grade year, and her family provided a tutor. She initially performed well in middle school , with support from a private tutor for math; but experienced difficulty with remote learning. A neuropsychological evaluation was performed in July 2020. The student was diagnosed with an Executive Function Disorder, an Anxiety Disorder and Specific Learning Disorders with Impairment in Reading, Math, and Written Expression. It was recommended that she receive an IEP with an ICT placement for the seventh grade, and that she work privately with a learning specialist, to help develop her math, written expression and executive function skills. It was further recommended that she continue to receive outside therapy, and that an academic update be performed in one year. (DOE Ex. 11).

Subsequently, the family relocated to the REDACTED, and the student attended school there during the 2020-2021 school year. An IEP was developed on May 14, 2021, to be implemented in September 2021. The student was classified with Other Health Impairment, and recommended to receive daily receive room services, in a group of five students, for 44-minute sessions, including support for organizational skills. (Par. Ex. M, Q).^[2] The family returned to New York City in August 2021 (Tr. p. 207). According to the parent, the teachers at REDACTED were attentive and supportive, but the student became further discouraged and depressed. (Par. Ex. M).

On July 14, 2021, the parent contacted the parent/teacher coordinator at the New York City public school which the student last attended; and advised that the student had received an IEP. The parent provided the evaluation and the May 14, 2021 IEP. (Par. Ex. P35; Tr. p. 226).

The student attended first day of school within the DOE, which was on or about September 13, 2021. Even though the DOE had not yet developed an IEP for the student, she was placed in ICT classes. (Tr. pp. 209, 241). Nevertheless, the parent did not believe the student was receiving interventions she needed for math. (Tr pp. 241-242). On September 29, 2021, the school district scheduled a social history. On October 6, 2021 consent for evaluation was obtained. (Par. Ex. P42).

An IEP meeting was held on November 5, 2021, and the parent attended. The student was classified with a Learning Disability, and recommended for placement in Integrated CoTeaching (“ICT”) classes for academics. (DOE Ex. 2; 11).

Prior to the IEP meeting, on October 20, 2021, the parent wrote to the student’s teachers, requesting help for her daughter in math. (Par. Ex. S). She testified that the student performed poorly during the 2021-2022 school year, with grades of C’s or D’s, which the parent felt were inflated. During a November parent-teacher conference, she was informed that the student was extremely distracted and a bit detached. (Tr. pp. 227-228, 231). The student told the mother that she could not keep up with her school work. The parents provided the student medication for ADHD, but that was not helpful. (Tr. pp. 229, 233).

A licensed Social Worker (hereinafter “the social worker”) employed by the school district testified that she became involved with the student’s case when she was referred for an initial evaluation during the 2021-2022 school year. The social worker performed a social history and a classroom observation, and participated in the November 2, 2021 IEP meeting. (Tr. p. 82). No updated academic testing was performed in preparation for the IEP meeting. (Tr, p. 137).

According to the social worker, at the time of the IEP meeting, the student was doing well academically except for math, which was an area of difficulty. Her social/emotional functioning was seen as an area of strength, as the teachers reported that she adjusted well upon returning to the school community, and the parent did not report any concerns regarding her social development. In a classroom observation, the student participated appropriately. The social worker felt that the ICT program, which provided a second teacher in the room, provided good support for the student, in the least restrictive environment. The social worker testified that since no social emotional concerns warranting counseling were identified at the meeting, the team would not want her to miss class time to go to counseling. (Tr. pp. 83-84; 91-94; 155-156).

Subsequent to the November 2021 IEP meeting, the student was assigned an “at risk” paraprofessional, due to the student’s frequent absence from classes; and in an effort to encourage her to stick to her schedule. Door-to-door busing was also provided to encourage her to come to school. The school gathered data to see if the paraprofessional should become part of her IEP. (Tr. pp. 85, 88, 141-142; DOE Ex. 12 at 13). According to the social worker, the students attendance improved following the addition of the paraprofessional. (Tr. p. 89).

On March 23, 2022, the parent requested a meeting to review the student’s IEP, due to concerns about her academic progress. (Tr. p. 140). At that time, the parent did not share information about the student’s hospitalization. (Tr. p. 144). Information about a January hospitalization was shared for the first time with the DOE, when a social history was performed on May 6, 2022. (Tr. p. 145; DOE Ex. 10). ^[3]

On April 4, 2022, the student’s ELA teachers reported that her attendance was fair and her homework completion poor. Decoding and phonics were not an issue for her; however, she struggled to complete material which was more abstract. She was described as distractible, impulsive easily frustrated, restless and bizarre. While she was described as very engaged with the content, and enjoying engaging with her classmates and teachers; she had days when she came in very upset and seemed to be under the influence of substances. Her relationships with adults and peers were described as satisfactory. She was described as astute and quick witted. (DOE Ex. 4). Her science teacher also described her attendance and homework completion as poor. (DOE Ex. 5). Despite her problems with attendance and homework, the student received final grades passing all academic subjects, ranging from 65 in Math to 85 for language arts. During the first marking period, she was failing Spanish, Math and Living Environment. She continued to have a failing grade in math in the second marking period. (DOE Ex. 6).

The social worker performed a social history assessment (update) on May 6, 2022. At that time, the parent shared that her biggest concern was the student’s keeping up with academics. She reported that the student had a private tutor. It was reported that while the student initially resisted the paraprofessional who was assigned to support her, she accepted the support and has been more focused in class. It was further reported that the student was seeing a psychiatrist, and was taking various medications, and that she was hospitalized for 10 days, in January 2022, following an incident of self-harm. It was reported that the student benefited form the paraprofessional, but that she required additional academic support.(DOE Ex. 10).

On May 26, 2022, the parent sent an email to the social worker, requesting a neuropsychological evaluation. (Par. Ex. P44). On May 27, 2022, the parent signed a consent for additional assessments. (Par. Ex. P1). On June 8, 2022, the DOE issued an authorization for the parent to obtained an independent Neuropsychological Assessment at school district expense. (Par. Ex. P27). On the same date, another classroom observation was performed in the student’s ELA class. The student was observed to follow the structure of the class and participate appropriately. (DOE Ex. 8). After the neuropsychological evaluation was authorized, the CSE was waiting for the testing results.( Tr. p. 86). The results of the updated testing were not received until the following school year. (Tr. p, 87).^[4] No IEP meeting was held subsequent to the request for re-evaluation made in March 2022, as the student was not attending regularly, and the team needed to gather more information, including review of the neuropsychological evaluation which had been requested by the parent. (Tr. pp. 160-164).

The student was offered a placement at a different ICT setting; however, the parent rejected the offer because she felt it would be inadequate, based upon the updated neuropsychological testing. (Tr. pp. 235-236).

On September 5, 2022, the parents, through their attorney, provided notice that they were rejecting the ICT placement; and that they would be seeking funding for the private school for the 2022/2023 school year. (Par. Ex. C).

On September 21 and 22, 2022, the parents signed a contract with the private school for the student to attend for the 2022-2023 school year, with a tuition of $72,000.00. The tuition included one-on-one support from an educational psychologist intern, provided through the REDACTED, three times per week at a cost of $18,000. When it was determined that the student no longer required this support in the second semester, her tuition was reduced to $63,000 for the school year, which the parent paid in full (Par. Ex. W; Tr. pp. 238, 244-245). ^[5]

Prior to June 8, 2022, the parent advised the social worker that the that student was unable to cope with academics, and was struggling mentally. She asked for the school’s assistance in having school materials sent to the treatment facility. (Tr. pp. 215-216). She testified that the student did not present with these issues at the start of the school year. (Tr. p. 232).

In her affidavit, the parent described the difficulty the student was having prior to that time. REDACTED. She testified that in February and March 2022, the student struggled to go to school and engage. She stated that the school assigned a temporary paraprofessional, but that the student continued to struggle. REDACTED. (Par. Ex. M ). While she attended regularly in the fall, her attendance became a problem in the winter and spring. (Tr. p. 234).

The Dean and Director of Learning Support of the private school testified (by affidavit) that she is a certified teacher of English Language Arts, and is the process of obtaining New York State Certification in Students with Disabilities. She has training and experience as an Orton-Gillingham teacher. The private school provides support for students with disabilities. It has an enrollment of approximately 62 students, in grades 9-12.

The student began attending the school during the 2022-2023 school year, and is enrolled in the Learning Strategies program. She is scheduled to meet four times each week for 40-minute sessions, with her Learning Strategist, who works acts a coach and advocate. Her learning strategy sessions include instruction in time management, study skills, organization, reading comprehension, writing, computational processes and reasoning, and other areas. Within these sessions, the student receives support for identifying her assignments, organizing them by priority, and creating a timeline to work toward completion. The Learning Strategies classes have up to five students, with one teacher, and additional support from a psychology fellow. (Par. Ex. L; Tr. pp. 198-199).

The student also meets with an advisor two to three times each week, in a group, to discuss any other areas of concern. (Tr. pp. 199-200).

The student presented with many challenges. She was often anxious, angry, unmotivated and unfocused. While she continues to struggle with executive functioning, math, reading and writing; she is able to complete the work assigned, and be an active class participant. Her schedule includes Journalism, Storytelling and Elements of Great writing, Algebra 1, Biology, Spanish 1 and Human Geography.

When she entered the school, she met with a Psychology Fellow three times per week for 40-minute sessions, to learn strategies to manage her emotions and her workload. As the student progressed in her self-advocacy skills, in or about January, she asked to discontinue those sessions, but continue with her Learning Support classes; and the school team agreed with her request. (Par. Ex. L, Tr. p. 202).

The student has demonstrated meaningful progress academically, socially, behaviorally and emotionally during the 2022-2023 school year. (Par Ex. L). She passed all of her classes in the first semester, with grades of B’s and C’s. (Tr. p. 203).

The student’s classes have up to eight students. (Tr. pp. 195-196).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).

In the case of a student with a disability who had an IEP that was in effect in New York State, and who transfers from one school district and enrolls in a new school district within the same school year; the new school district is required to provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations. 8 NYCRR 200.4 (e)(8)

2021/2022 School Year

I find that the DOE failed to meet its burden of proving that it provided the student with a FAPE for the 2021/2022 school year.

I find that based upon 8 NYCRR 200.4(e)(8) the student was entitled to daily Resource Room Services (44-minute sessions) from the first day of attendance within the DOE, until the date of the first IEP meeting. While the recommendation for ICT classes was consistent with the recommendations of the most recent neuropsychological evaluation available at the time of the IEP meeting; the student’s November 2021 IEP did not include additional academic support, which was also recommended in the neuropsychological evaluation. The record indicates that the student was struggling in math, and that the parent was requesting additional math support for her daughter as early as October 2021. The student failed math in the first two marking periods; and was also failing in Spanish and Living Environment during the first marking period. For the foregoing reasons, I find that the CSE’s recommendation for ICT classes, without additional supports, was not appropriate, and that the student should have received additional special education teacher support. Compensatory Remedy

In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE. The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (quoting Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005).

I find that an appropriate compensatory award for the denial of FAPE during the 2021/2022 school year should be based upon the resource room/ special education services which the student should have received on a daily basis (5 x 44 minutes, or 3.66 hours per week). The State Review Officer has held that for purposes of calculating a compensatory award for a ten-month school year, the appropriate measure is 36 weeks, Application of a Student with a Disability, Appeal No. 22-145; Application of Student with a Disability, Appeal No. 21-022 Application of Student with a Disability, Appeal No. 21-169. Therefore, I find that the student is entitled to 132 hours of compensatory special education services.

In making this award, I have considered the fact that the student’s academic difficulties and failure to attend, during the 2021/2022 school year were due, in part, to psychiatric difficulties which were not shared with the school district until May 2022. I have also considered that the student was provided with ICT classes, throughout the school year; and that CSE provided additional paraprofessional support to the student, when she had difficulty attending classes.

2022-2023 School Year

I find that the CSE’s recommendation for ICT services only continued to be inappropriate in the 2022/2023 school year. Clearly, the student had significant academic and emotional difficulties, which resulted in hospitalizations, lack of attendance, and poor academic performance. The fact that the CSE was waiting for the results of the independent evaluation did not excuse it from reviewing the student’s program, as requested by the parent, in March 2022. As of May 6, 2022, the CSE was aware of the student’s January psychiatric hospitalization; and was subsequently made aware of her June hospitalization.

For the foregoing reasons, I find that the CSE failed to meet its burden of proving that it provided the student with a FAPE for the 2022/2023 school year.

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir.

2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

The private school met the student’s unique needs by providing small classes, learning support four times per week, meetings with an advisor two to three times per week, and psychological support three times each week. The student progressed academically and emotionally; and by the second semester, did not require the additional psychological support, as she was able to advocate for herself.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012 ).

In these proceedings, the parents shared their private evaluation, attended IEP meetings and provided notice of their intention to unilaterally place the student and seek funding. Furthermore, the parents had already enrolled the student in the recommended program, and only withdrew her from it after determining that it was not meeting her needs. Accordingly, equitable considerations support their request for tuition reimbursement.

I also find that the student was entitled to public transportation to and from the private school, for the duration of the 2022/2023 school year. While the student should have been provided with a MetroCard, I will not order that one be issued for the current school year, as the school year is now coming to a close. Instead, I will order that the parents be reimbursed for their expenses in paying the student’s subway fare to and from school, upon presentation of proof of payment thereof, in the form of affidavits and receipts or such other proof as may be reasonably required.

For all of the foregoing reasons, it is hereby ordered that the DOE shall:

1. Reimburse the parents $63,000, on account of the student’s tuition at the private school for the 2022/2023 school year, upon presentation of proof of payment thereof;

2. Fund 132 of compensatory one-to-one tutoring with a certified special education teacher or another qualified provider, at a reasonable market rate previously accepted by the DOE’s Implementation Unit within the last six months of the date of the decision/order;

3. Reimburse the parents for their expenses in paying the student’s subway fare to and from school, during the 2022/2023 school year, upon presentation of proof of payment thereof, in the form of affidavits and receipts or such other proof as may be reasonably required.

Dated: June 7, 2023 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Office (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State.

DOCUMENTATION ENTERED INTO THE RECORD

IMPARTIAL HEARING OFFICER EXHIBITS

I. Subpoenas, various dates, 3 pp. II DOE’s Closing Brief, undated, 6 pp. III Parent’s Memorandum of Law, 6-6-23, 15 pp. IV Orders of Extension, various dates, 4 pp. Department of Education

1. DPC 10.26.22 9 pages DOE

2. IEP 11.05.21 18 pages DOE

3. Report Card 11.04.21 1 page DOE

4. Teacher Report REDACTED 04.04.22 3 pages DOE

5. Teacher Report REDACTED 04.04.22 4 pages DOE

6. Report Card 06.22.22 1 page DOE

7. Transcript 06.23.22 1 page DOE

8. Classroom Observation 06.08.22 2 pages DOE

9. Classroom Observation 10.27.21 2 pages DOE

10. Social History Assessment 05.06.22 3 pages DOE

11. Neuropsychological Evaluation 07.23.20 27 pages DOE

12. Neuropsychological Evaluation Report 09.06.22 20 pages DOE

13. Special Education Recovery Services Parents 02.21.22 3 pages DOE

REDACTED

V Parent email: RE address change 9/12/2022 1

W Testimony of Affidavit of REDACTED 4/27/2023 2

Footnotes

[1] The student has been taking the subway at the parents’ expense; and the parents are requesting issuance of a MetroCard, and reimbursement for their out-of-pocket expenses for the subway. (Tr. pp. 239-240).

[2] According to the REDACTED IEP, academic testing indicated that the student had below average ability in math computation and fluency and low average ability in problem solving. For math, she required reteaching of materials and checks for understanding. (Par. Ex. Q4).

[3] On May 6, 2022, the parent reported to the school that the student was seeing a psychiatrist, and was taking various medications, and that she was hospitalized for 10 days, in January 2022, following an incident of self-harm.(DOE Ex. 10).

[4] In the updated testing the student was again diagnosed with Anxiety Disorder and Specific Learning Disorders with Impairment in Reading, Math, and Written Expression; with additional diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Major Depressive Disorder. It was recommended that she be placed in a therapeutic school with intensive emotional, social and academic support embedded throughout school day. Compensatory one-to-one academic tutoring was also recommended (in an unspecified amount). (DOE Ex. 12). At the hearing, the neuropsychologist recommended 400 hours of compensatory tutoring, calculated at two hours per day for a 40- week school year. (Par. Ex. X; Tr. p. 267). The neuropsychologist testified that this is what the student should have received, and is needed to put her back in the place where she should have been, and for her to keep up with her peers. (Tr. pp. 267-271)

[5] Other than the parent’s testimony, proof of tuition payment was not provided at the hearing.