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CASE NUMBER: 592764 - NYC: 243291
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: December 5, 2022
Dates of Hearing: March 6, 2023, April 5, 2023 and May 5, 2023
Actual Record Closed Date: May 10, 2023
Date of Decision: May 24, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 6, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 5, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], CSE Liaison
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 5, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], CSE Liaison
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated December 5, 2022. (Ex. P-A) [2]. The record does not contain any evidence of a response by the New York City Department of Education (hereinafter referred to as “the District”). This IHO was appointed on January 20, 2023. A pre-hearing conference was held on January 26, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. Status conferences were held on February 7, 2023 and February 17, 2023 as the parties attempted to resolve the case. [REDACTED] appeared on behalf of the Parents, and [REDACTED] appeared on behalf of the District. The hearing commenced on March 6, 2023, and counsel for both parties appeared, entered documents into evidence and delivered opening statements. The District conceded that it would not be presenting a case (T:33). The hearing continued with witnesses for the Parents on April 5, 2023 and May 5, 2023. The District did not cross examine the Parents’ witness from the private school (T:80).
Four extensions of the compliance date were granted at the request of the parties. The District entered into evidence Exhibits 1-10. The Parents entered into evidence exhibits A-J. [3] Two witnesses testified on behalf of the Student, including the Student’s mother. Counsel for both parties made closing statements on the record. The record was closed on May 10, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student was REDACTED years old at the time of the filing of the DPC. She was classified by the District’s Committee on Special Education (“CSE”) as a student with a learning disability. A CSE meeting was held on December 10, 2020 to develop an Individualized Education Program(“IEP”). The CSE recommended Integrated Co-Teaching (“ICT”) for math, ELA, social studies and science special education teacher support services (SETSS) for ELA and math, counseling and speech language therapy (Ex. D-10-13-14). Both Parents were in attendance. The CSE next met over a year later on March 30, 2022 and again recommended Integrated Co-Teaching (“ICT”) for math, ELA, social studies and science special education teacher support services (SETSS) for ELA and math, counseling and speech language therapy (Ex. D-3-11). The Parents advised the District, by letter, dated August 25, 2021 that they were unilaterally placing the Student at [REDACTED] (hereinafter referred to as “the private school”) for the 2021-22 school year (Ex. P-B).
ISSUES
The Parents raise in the DPC numerous procedural and substantive challenges to the appropriateness of the District’s recommendations including:
• The District’s recommended program is inappropriate.
• The District disregarded the recommendations of the educational and clinical staff familiar with the Student.
• The Student requires 1:1 support, and the recommended program cannot provided the necessary support and services.
• The recommended program does not provide the Student with a suitable peer group.
• The District failed to consider all her needs and failed to assess her in all areas of disability.
• The IEP’s present levels of performance are inaccurate.
• The IEP’s annual goals, management needs, language support and social/emotional support are not appropriate.
• The District failed to consider the concerns of the parents and private school staff.
• The District did not prepare a program for remote learning.
• The District did not recommend an appropriate reading program for the Student.
• The District did not recommend a placement that was capable of meeting her needs.
The DPC seeks reimbursement of tuition for the Parents’ unilateral placement at the private school for the 2021-22 school year. As stated above, the District did not provide a written response to the claims raised in the DPC.
FINDINGS OF FACT
The Parent described the Student as outgoing, confident, industrious and hard working. She has become a leader, extremely responsible and independent (T:94). Her dyslexia causes her to struggle with reading, writing, some executive functioning and working memory (T:95). The Student began attending the private school in the fourth grade (T:53). Prior to that, she was receiving special education teacher support services (SETSS) daily in a private regular education school and was really struggling (T:95,108-09). The Parents signed a contract with the private school for the 2021-22 school year in April of 2021 (Ex. P-D). On August 25, 2021, the Parents sent a notice of unilateral placement to the District’s CSE (Ex. P-B-1). The Parent testified that the Student has responded well to the interventions at the private school and that she has made tremendous progress socially and emotionally. The private school provided a lot of assistance during the 2021-22 school year in math, writing, reading and executive functioning, and she made progress in all areas (T:96-105). The Parents have paid the tuition in full (Ex. PI).
[REDACTED] testified that she has been employed by the private school as the CSE Liaison since January 2022. She holds a Master’s of Science in clinical literacy from REDACTED and is certified to teach Level 1 of Wilson Fundations reading program (T:49). She worked as a teaching assistant for 2 years in the District. She worked as a literacy specialist and director of academic resources at private schools, as well as a private literacy clinician for 1 year. In her current role, she coordinates activities between the District and the private school in preparation for CSE meetings (T:50).
The private school is a coeducational school for students with language-based learning disabilities in grades kindergarten through 12. During the current school year, there are 402 students in attendance (T:51-52). The CSE Liaison testified that she is familiar with the Student in that she saw her frequently in the hallways and has been in her classroom (T:52). She has spoken with her teachers regarding her skills, strengths and weaknesses. The Student struggles primarily with language, reading comprehension and math language (T:52-54).
Her schedule at the private school includes Advisory, Flex, Word Study [4], English, Science, Math, Art, History, Physical Education, Music and HHR (health and human relations) (Ex. P-F). All of her classes had 12 students and two teachers (a head teacher and assistant teacher) (T:56,61,84). The CSE Liaison testified that she believed the 12:2 ratio was necessary for the Student to get the proper instruction she required (T:76-77). Her teachers were in constant communication with each other regarding her needs. The seventh-grade team met at least weekly (T:79).
The CSE Liaison testified that the Student’s advisory period was a sort of homeroom period where students work on their executive functioning skills (T:55, 57). Flex period was a structured class where she would work on executive functioning skills or a discrete skill, such as writing (T:57-58). Her executive functioning skills improved in all of her classes (T:78-79). She had an iPad with access to graphic organizers to structure her writing and educational apps. She also had headphones so she could listen to text (T:59).
Her head teacher in ELA and math was a New York State certified special education teacher. The head teacher and assistant teacher were able to break the students into small groups for instruction. The students in her ELA class were heterogeneous to provide a richer classroom experience (T:64). The Student’s skills placed her in the middle of the group (T:83-84) The class followed a 7th grade New York State curriculum (T:64). The speech language therapist would push into the ELA class as needed to confer with the Student and to ensure she was understanding the text of the novel she was reading (T:65-66).
She also attended a word study group based upon her decoding needs (T:60-63). The word study group utilized the REWARDS curriculum which is structured and systematic, and the Student was very responsive to it (T:65). Her Fountas and Pinnell decoding level was beginning 5th grade, and her comprehension was mid-5th grade in 2021-22 (T:64).
The CSE Liaison testified that the Student made progress in her self-editing skills, writing in complete sentences, using proper capitalization and grammar (T:67). She decreased the frequency of word omissions in her reading while reading aloud and increased her use of grade level vocabulary during reading and writing (T-67-68).
For math, she was placed in the private school’s fastest paced grouping. She followed a 7th grade curriculum at a slower pace than what would be taught in a regular school (T:69-70). She responded well to the highly structured curriculum. She became more confident in her math skills (T:71).
The private school provided the management needs listed on her progress report (Ex. D-4). She benefited from sitting near positive peer models. She also benefited from directions being read, repeated and rephrased in light of her language difficulties (T:72-73).
The private school addressed her social/emotional needs as well. The private school’s counseling program (HHR) was provided by the middle school psychologist one time per week in a small group, and developmentally appropriate topics were discussed. The Student became more confident and more aware of dealing with other students’ differences (T:74-75).
The Student was evaluated by the [REDACTED] in March and April of 2022. Overall, she presented with average cognitive abilities. She, however, demonstrated vulnerability in basic reading and math skills inconsistent with her intellectual functioning. She was diagnosed with Specific Learning Disorder with Impairment in Reading and Specific Learning Disorder with Impairment in Mathematics, presumptive. Continued specialized reading and math instruction was recommended. The report recommended a structured classroom with low student to teacher ratio housed in a small school environment that could provide specialized instruction throughout the day (Ex. P-C-18-19).
Her end of year report card documented her improvement in writing, culminating in her writing a five-paragraph analytical essay on an assigned reading. She demonstrated progress/strength in interpreting text, making inferences and predictions, supporting claims with text evidence and participating during class discussions. (Ex. P-G-2). In math, she demonstrated an increase in her self-advocacy and ability to independently prepare for assessments, using resources like her notes and a study guide (Ex. P-G-6). The speech language therapist indicated that she frequently participated in class academic discussions and continued to make progress in language comprehension and expository writing (Ex. P-G-13).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a 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 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, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, 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 or payment for services 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)). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the parent in order to meet his or her burden 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).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District did not present a case to prove that it met its obligation to provide the Student with a FAPE. Based upon the District’s failure to present any defense of its recommendations for the 2021-22 school year and/or a description as to how it would meet the Student’s special education needs, I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s recognized failure to meet its burden, I do not find it necessary to consider all of the specific challenges to the IEP raised in the DPC.
Turning to the private school program selected by the Parents, the Parents argue that the selected program appropriately addressed the Student’s needs and that they have met their burden under Prong II of the Burlington/Carter test. The District in its closing argument asked the IHO in considering the equities under Prong III of the Burlington/Carter test that no assessments were conducted of the Student during the 2021-22 school year, particularly in math. The District also argued under Prong III that the CSE Liaison did not observe the Student in any classroom during the 2021-22 school year (T:117-18).
First, the arguments regarding the appropriateness of the private school’s actions or inactions are more properly considered under Prong II of the Burlington/Carter test. Second, in reviewing the arguments raised, it is the District’s obligation to ensure there are adequate evaluations of the Student in all areas of suspected disability (see A.D. v. Bd. of Educ., 690 F. Supp.2d 193, 206 [S.D.N.Y. 2010][finding that a unilateral private school placement was appropriate even where the private school’s reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student’s needs lies with the district]). The CSE Liaison testified that she was familiar with the Student, had been in her classroom and had reviewed her skills, strengths and weaknesses with her teachers. This testimony was undisputed.
Based upon a thorough review of the testimony and evidence, I find the Parents met their burden that the private school provided the Student with specific individualized instruction and services to meet her unique special education needs during the 2021-22 school year. The uncontroverted testimony and evidence as set forth above reflects that the private school provided her with specific strategies to address her documented difficulties with reading, writing, language and executive functioning.
With regard to the equities, there is no evidence in the record that the Parents thwarted the process in any meaningful way that would have otherwise prevented the CSE from making a defensible recommendation for the 2021-22 school year. The Parents gave the District timely notice of their dissatisfaction with the District’s actions and their intention to unilaterally place the Student at the private school and seek reimbursement (Ex. P-B). As such, the equitable considerations weigh in favor of the Parents, and the Parents are entitled to an award of tuition reimbursement.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the District shall within thirty (30) days of the date of this decision reimburse the Parents for tuition paid to the private school for the 2021-22 school year.
SO ORDERED.
DATED: May 24, 2023
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 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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 12/5/22 3 pages
B. Notice of Unilateral Placement (10-Day Notice) 8/25/21 3 pages
C. Evaluation Report 8/26/22 42 pages
D. Enrollment Contract 4/29/21 5 pages
E. Program Description – [REDACTED] undated 1 page
F. Daily Schedule 2021-2022 2 pages
G. End of Year Report Card 2021-2022 13 pages
H. Payment Affidavit 12/6/21 1 page
I. Payment Affidavit 7/12/22 1 page
J. Ten-Day Notice Response 9/16/21 1 page
DISTRICT EXHIBITS
1. Number Document Date Number of Pages Due Process Complaint 12/05/2022 4 pages DOE
2. Prior Notice Package for Placement 06/30/2022 10 pages DOE
3. Individualized Education Program 03/30/2022 18 pages DOE
4. Progress Reports (Education) 03/30/2022 5 pages DOE
5. Progress Reports (Education) 12/20/2021 4 pages DOE
6. Level 1 Vocational (Teacher Assessment) 09/20/2021 2 pages DOE
7. Level 1 Vocational (Student Interview) 10/20/2021 2 pages DOE
8. Ten Day Notice 08/25/2021 3 pages DOE
9. Prior Notice Package for Placement 03/14/2021 13 pages DOE
10. Individualized Education Program 12/10/2020 19 pages DOE
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] The CSE Liaison testified that the schedule contained an error, and the Student attended Word Study during both the first and second semester (T:115).