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Case Number: 592772 – NYC: 243299
FINDINGS OF FACT AND DECISION
NYS Case Identifier Number: N/A
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: Parent
Date of Hearing: 2/9/23
3/15/23
4/11/23
5/3/23
6/7/23
Record Close: 6/22/23
Hearing Officer: Nancy M. Lederman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 9, 2023
For the Student:
NONE
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 15, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 11, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 3, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 7, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], Lead Teacher, [REDACTED]
[REDACTED], Director, Day Services, [REDACTED]
For the Department of Education:
[REDACTED], ESQ., District Representative
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] ([REDACTED]) is [REDACTED]-year-old student, whose parent [REDACTED] [REDACTED] ([REDACTED], [REDACTED], parents, or parent) has brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] a free appropriate public education (FAPE) for the 2021-2022 school year. Ex. A. The hearing convened on February 9, March 15, April 11, May 3, and June 7, 2023. Extensions were granted in accordance with regulations, resulting in a final compliance date of July 15, 2023.
DISTRICT AND PARENT POSITIONS
The due process complaint notice (DPCN) in this case, dated December 2, 2022, claimed that the district failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2021-2022 school year, claiming that the district had failed to create a valid IEP for the school year citing multiple procedural and substantive errors, including inappropriate program and placement recommendations, as well as inadequate consideration of evaluations and documentation in support of recommendations. As relief, the parent requested the DOE to provide funding or reimbursement for tuition and related services at the student’s placement at [REDACTED] for the 2021-2022 school year. Ex. A.
At hearing on March 15, 2023, the district representative stated that the district had no case regarding Prong 1 of a Burlington-Carter analysis. At hearing on May 3, 2023, the district addressed Prong 2, asserting the parent’s burden of showing that the school was appropriate for the student, but also stating that on behalf of the district, he was not taking any position on the school or the services provided to the student. In regard to be true for Prong 3, he stated that he didn't see anything, basically waiving challenge on that issue as well. [1]
FINDINGS OF FACT
[REDACTED] is s student with Down syndrome classified as having an intellectual disability. Ex. M. Her father, [REDACTED] described [REDACTED] as “the love of my life,” stating that she was an exceptional, cute girl, very bright, very happy, good with her homework and very good socially. He testified about early efforts seeking help when the parents realized that she had some issues that goes with Down syndrome. She attended preschool, including [REDACTED], a public school where she received special education services, including feeding help, occupational therapy, and physical therapy. The school year 2020-2021 was the last year that [REDACTED] attended the [REDACTED] program; it was remote that year, and it didn't work out well for her. For the 2021-2022 school year. [REDACTED] was placed at the [REDACTED] for the2021-2022 school year. Tr. 96-101. [REDACTED], a master teacher at the [REDACTED], described the school as serving children with Down syndrome. The school serves only children Down syndrome, which she stressed the benefit of seeing each other as the same, and able to relate with each other well. They care for each other, and they understand their disability together, with the group. Tr. 53-83; Ex. H. [REDACTED], an administrator at the school, estimated that there were about 40 students are in the school, from age 5 to about 11 or 12. There are about seven or eight classes in the school. Tr. 89-94. [REDACTED], who is certified in special education, described the curriculum used at the school in reading, handwriting, spelling, and math. These include Orton-Gillingham methodology for reading, the My Math program, and Handwriting Without Tears, as well as a program called VAKT, a visual, kinesthetic, auditory, and tactile handwriting methodology. [REDACTED] described how the reading skill was taught, sit at a table all together, and then once the learning skill was taught, the students would be divided into different groups. There were four adults in [REDACTED]’s classroom, [REDACTED] and three paraprofessionals (all with high school diplomas). Students are divided academically when they're working on specific goals. [REDACTED] was assigned to [REDACTED]’s. group of three students in a class of six students; [REDACTED] was together with two other students in her math and reading groups. [REDACTED] struggles with being able to concentrate in a learning environment, and classroom work focused on making sure she was reached. Modifications included groups separated by cubicles, and different sensory modalities incorporated into her learning, such as specific books, shaving cream, rice, chalk for handwriting, as well as different movement activities, including jumping on a trampoline and playing a game of hopscotch. In addition to the academic curriculum and related services of speech, occupational therapy, and speech language therapy, the school provided a social-emotional Social Thinking program with a BCBA to monitor behavior. [REDACTED] described [REDACTED]’s progress, saying she came in reading 18 basic CVC words, and was learned to read words with 20 different endings; she came in with no ability to be able to write actual letters and learned to write 10 letters perfectly; and with limited understanding and able to count one-to-one correspondence, she ended the school year able to add based off an addition story. She cited the individualized learning and related services that helped [REDACTED] reach her learning goals. She also noted progress in the social-emotional part, noting [REDACTED]’s frustrations and tantrums, and the success of the classroom behavior plan and the BCBA was always onboard to be able to monitor any of her behaviors. Tr. 53-83. Progress reports concerning education and occupational therapy also reflect concerns and progress during the 2021-2022 school year. Exs. C, D. [REDACTED] testified that he was satisfied with [REDACTED]’s placement at the [REDACTED] during the 2021-2022 school year. He stated that she became very good at spelling, reading, writing, and math, very good across social and academic areas. Tr. 96-101.
Contract. The enrollment contract with [REDACTED] for the 2021-2022 school year provides a tuition charge of $120,000. An affidavit from [REDACTED] dated November 3, 2022 confirmed payment of $250 from the parent, and a balance due of $119,750. In testimony he clarified there would be no additional costs to the parent concerning the instant hearing. Tr. 89-94; Exs. I, K. [REDACTED] testified that he was not able to afford the full cost of the tuition and had no assets to sell to pay for the cost of that tuition; he agreed that he was responsible for the remaining balance owed 23 to the [REDACTED] should the DOE not be ordered to fund the remaining cost. Tax statements from the parents confirm inability to pay the full charges. Tr. 96-101; Ex. L.
CONCLUSIONS OF LAW
The decision in a case of this nature would normally rest on a determination of the threepronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
In this case, however, the district representative conceded that FAPE had not been provided, and further waived any argument concerning equities. Thus, there is no evidence that the district offered appropriate services, nor was there any evidence that equitable considerations did not support the parent’s claim, compelling the ruling that the district failed to provide FAPE to [REDACTED] and there is no obstacle to an award for parents based on equities.
The only remaining consideration is whether the services selected by the parent were appropriate. Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard also, I note that the district again offered no position. I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED]. I credit [REDACTED]’s description of the program, including individualized and small group instruction, specific curriculum in various subject areas and multi-sensory teaching approach and strategies, as well as the work and progress noted in the child’s reports for the school year. I also note the parent’s testimony concerning [REDACTED]’s progress.
For the reasons noted above, I find that the [REDACTED] provided a program for [REDACTED] designed to meet her special education needs. In this case, [REDACTED]’s testimony and the parents’ tax statements confirmed that they didn’t have the means to pay the full tuition, warranting an order for prospective tuition funding.
ORDER
1. The DOE shall reimburse the parents $250 for the deposit on tuition paid by the parents for [REDACTED]’s tuition at the [REDACTED] the 2021-2022 school year.
2. The DOE shall provide funding for the student’s placement at [REDACTED] for the 2021-2022 school year, at a full cost not to exceed $119,500.
IT IS SO ORDERED.
Dated: July 5, 2023
___Nancy Lederman______
NANCY M. LEDERMAN
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 proceedings 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.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
None
PARENT EXHIBITS
A. Hearing request, 12/2/22, 6 pages
B. TDN, 8/17/21 5 pages
C. OT progress report, 2/8/22, 5 pages
D. Educational progress report, 2/23/22, 3 pages
E. End of Year therapy report, 2021/2022, 3 pages
F. End of Year report, 2021/2022, 3 pages
G. OT annual assessment, 6/7/22 7 pages
H. [REDACTED] program description, 2021/2022, 6 pages
I. Enrollment contract, 9/14/21, 8 pages
J. Class schedule, 2021/2022, 1 page
K. Tuition affidavit, 11/3/22, 1 page
L. W2 form, unidentified date, 2020, 2 pages
M. IEP, 12/2/20, 21 pages
N. Affidavit, [REDACTED], 4/27/23, 3 pages
Footnotes
[1] Of five scheduled hearing days, there were three hearing days on which a party failed to appear; the parent failed to appear once; the district failed to appear twice and appeared briefly on the final day of hearing and was excused before all witnesses were heard.