New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 242678

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED] (Parent)

Record Close Date: September 15, 2023

Hearing Officer: Natasha Pierre, Esq.

On November 22, 2022, the parent, [REDACTED] (the “Parent”), of [REDACTED] (the“Student”) filed a due process complaint (DPC) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “District”). I was appointed as the impartial hearing officer (“IHO”) on January 13, 2023. Hearings went forward on February 15, 2023, March 16, 2023, April 13, 2023, and June 14, 202. The District was represented by [REDACTED]. The Parent was represented by [REDACTED]

The District submitted a documentary evidence package. The District did not present witness testimony.

The Parent submitted a documentary evidence package and presented affidavit testimony from three witnesses: [REDACTED]; Pediatric Neuropsychologist, [REDACTED]; Academic Dean at [REDACTED] and [REDACTED]; the Parent.

Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

BACKGROUND AND POSITIONS OF THE PARTIES

[REDACTED] is an [REDACTED] student with a disability classification of Other Health Impairment. The Student is diagnosed [REDACTED]. The Student has a history of [REDACTED]. The Student has weaknesses in attention and academics. He started receiving special education services in Early Intervention when he was two years old, and continued special education services throughout his educational career. Despite receiving special education services and having strong cognitive abilities, the Student struggled academically while in public school. The Student has difficulties with receptive language and expressive language. The Student struggles with transition, self-regulation, inattention, and language processing. This proceeding pertains to the Parent’s claim for tuition reimbursement for the 2022-2023 school year, and compensatory educational services for the 2021-2022 school year.

For the 2021-2022 and 2022-2023 school year, the Committee on Special Education (CSE) recommended an Integrated Co-Teaching Classroom (ICT), with the related service of Speech and Language Therapy. The CSE added paraprofessional services to its 2022-2023 recommended program. The Parent maintains that the CSE meetings held to develop an Individual Education Program (IEP) for the Student for the 2021-2022 and 2022-2023 school years, and the subsequent IEPs that were developed are substantively and procedurally flawed and deprived the Student a free appropriate public education (FAPE). The Parent maintains that the District’s recommended program for the 2021-2022 and 2022-2023 school years was inappropriate and insufficient to meet the Student’s needs. The Parent maintains that the District disregarded the findings in the Student’s private neuropsychological reports which show that the Student needed to be placed in a special classroom with no more than 12 students with similar needs, and recommended a program that does not confer educational benefit on the Student. The Parent maintains that the Student’s management needs were not addressed; that there were no goals to address the Student’s attention, distractibility, and hyperactivity; and that the IEPs do not address the Student’s risk of regression.

The Parent seeks a finding that the District failed to provide the Student with a FAPE for the 2021-2022 and 2022-2023 school years; an order directing the District to fund and reimburse the tuition for the unilateral placement at [REDACTED] (hereinafter, “Private School”) for the 2022-2023 school year; an order directing the District to fund one hundred eighty (180) hours of compensatory educational services in the form of after school tutoring and/or executive functioning coaching to remedy the lack of appropriate instruction for the 2021-2022 school year . In addition, the Parent seeks an order directing the District to fund transportation services for the Student for the 2022-2023 school year (Tr. 64-68).

The District did not defend the Parent’s claim that the District failed to provide the Student FAPE for the school years at issue. The District contends, however, that the unilateral placement is not appropriate for the Student.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP.

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii). School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship-seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

Here, the District conceded to a denial of FAPE (Tr. 28). In addition, it is clear from the record that the District failed to recommend an appropriate program and placement for the 2021-2022 and 2022-2023 school years. I, therefore, find that the District failed to provide the Student with a FAPE for the 2021-2022 and 2022-2023 school years. The Parent has, therefore, met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the 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. Gagliardo. 489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).

The District asserted that the Student’s writing and literature instructors at the Private School do not have a New York state license (Tr. 59). A private placement, however, need not provide certified administrators or teachers because they are not held to the same state education requirements as a school district placement. Frank G. ., 459 F.3d 356, 364 [2d. Cr. 2006]. Furthermore, there is no indication in the record that the lack of certification had an adverse impact on the Student’s educational needs. The District asserted that the Private School is not the least restrictive setting (Tr. 60). However, parental unilateral placements are not required to follow the least restrictive requirements that are applicable to school Districts. Frank G. ., 459 F.3d 356, 364 [2d. Cr. 2006]. Therefore, the District’s contentions are unfounded.

The testimony ( which was uncontroverted) and documentary evidence overwhelmingly support the Parent’s contention that the Private School placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit him to benefit from instruction (Tr. 31-58, Parent Ex. D, E, F, G, H, I, J, N, O, P, Q). Specifically, the Private School has small class sizes and individualized instruction . The teachers at the Private School provide significant targeted instruction, which the Student needs (Parent Ex. G, H, O). The Student struggled academically and emotionally at the public school and made little to no progress (Parent Ex. Q). At the Private School, the curriculum is designed to support the Student’s strong cognitive potential and address his academic deficits and social-emotional challenges. As recommended by the neuropsychologist, the Private School’s evidence-based academic curriculum is tailored to students with disabilities similar to the Student. At the Private School, the Student made significant progress with individualized support and instruction (I, O, Q). Therefore, the evidence establishes that the Student did, in fact, make meaningful progress at the Private School.

The Parent has, therefore, met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a Parent’s claim for tuition reimbursement hinges, in large part, on whether or not the Parents cooperated with the CSE. By all accounts the Parent cooperated with the CSE. The Student’s parent, REDACTED , attended the CSE meetings and shared private neuropsychological evaluations with the CSE. The Parent also provided the District with timely and appropriate written notice of their intent to unilaterally place the Student at the Private School. The IHO finds that the Parent did not engage in any actions (or inactions) that impeded, interfered with, or delayed the CSE program development and placement process in any way.

Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition funding and reimbursement for the 2022-2023 school year. The Parent has, therefore, met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement for the cost of the Student’s 2022-2023 Private School placement.

The Parent has requested that it be reimbursed for monies it has already paid toward tuition at the Private School and the District directly fund any outstanding monies owed for the Student’s enrollment at the Private School for the 2022-2023 school year.

Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011). The District did not oppose the request for direct funding. The request that the balance of tuition payments for the 2022-2023 school year be made directly to the Private School is, granted.

COMPENSATORY SERVICES

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

In this case, the Parent seeks a total of one hundred eighty hours of tutoring services and/or executive functioning coaching to remedy the denial of FAPE for the 2021-2022 school year. There is substantial evidence in the record to support the Parent’s claim for compensatory services for the year at issue. The IHO finds that the Student is entitled to compensatory tutoring and/or executive functioning coaching to address his academic challenges and remedy his FAPE deprivation for the 2021-2022 school year.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of the Student’s 2022-2023 school year placement at the Private School, by (a) reimbursing the Parent, within thirty (30) days of the submission of a copy of proof of payment, for any payments made, and (b) directly funding the Private School for any tuition amount owed for the 2022-2023 school year and it is further

IT IS HEREBY ORDERED that the New York City Department of Education shall fund the following compensatory services: one hundred eighty hours (180) hours of 1:1 tutoring and or executive functioning coaching at a market rate by a provider of the Parent’s choosing.

IT IS HEREBY ORDERED that the New York City Department of Education shall fund the cost of transporting the Student and from the Private School placement for the 2022-2023 school year.

September 22, 2023

Natasha Pierre

Impartial Hearing Officer

District Exhibit List # Document Description Date Page Count 1 May 2021 Individualized Education Program (IEP) 05/20/2021 19

2 June 2021 Prior Written Notice 06/22/2021 4 3 September 2021 IEP 09/27/2021 28 4 June 2022 Prior Written Notice 06/10/2022 4 5 Classroom Observation 05/16/2022 3 6 Social History Update 05/10/2022 4 7 Teacher Report 05/16/2022 4 8 Speech and Language Progress Report 06/06/2022 7 9 Special Education Recovery Services 03/05/2022 3 10 2021-2022 School Year Final Report Card 2021-2022 2 11 Due Process Complaint 11/21/2022 10

Parent Exhibit List

LETTER DATE DOCUMENT No. Of Pages

A 11/21/22 Hearing Request 9

B 8/23/22 Ten Day Notice 3

C 8/23/22 Ten Day Notice Confirmation 1

D 6/17/21 Neuropsychological Evaluation 21

E 5/23/23 Psychoeducational Evaluation 10

F 2022-2023 [REDACTED] Enrollment Contract 7

G Undated [REDACTED] Program Description 1

H 2022-2023 [REDACTED] Class Schedule 1 [REDACTED] Winter Progress Report

I 2022-2023 8

J 2/26/19 Office Visit Notes 4

NYSED Memorandum: Compensatory Services for K June 2021 Students with Disabilities as a Result of the 8

COVID-19 Pandemic

DOE Academic Recovery- Special Education

L Undated 8

Guidance

M 10/14/22 Request for Medical Accommodations 1

N 6/3/22 Psychiatrist Recommendation Letter 1

O 6/3/22 Affidavit of Testimony: [REDACTED] 5

P Undated Affidavit of Testimony: [REDACTED] 7

Q Undated Affidavit Testimony: [REDACTED] 4

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 Officer (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 Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.