New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 592799 - NYC: 243326

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 7, 2023 and April 24, 2023

Actual Record Closed Date: May 5, 2023

Date of Decision: May 16, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 7, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 24, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Parent Student

[REDACTED], Head Teacher

For the Department of Education:

[REDACTED], Esq.

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 December 6, 2022. A pre-hearing conference was held on January 5, 2023, following the resolution period. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. A status conference was held on February 10, 2023. The hearing commenced on March 7, 2023, and counsel for both parties appeared, entered documents into evidence and delivered opening statements. April 19, 2023 was scheduled for the District to present its witnesses. Via email on March 15, 2023, Mr. [REDACTED] advised he decided not to present a case, but reserved his right to cross-examine the Parents’ witnesses. The hearing continued on April 24, 2023 with the Parents’ case.

Three extensions of the compliance date were granted at the request of the parties. The District entered into evidence Exhibits 1-6. The Parents entered into evidence exhibits A-F and H-O.^[3] Two witnesses testified on behalf of the Student, including the Student’s father. Counsel for both parties made closing statements on the record. The record was closed on May 5, 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. He was classified by the District’s Committee on Special Education (“CSE”) as a student with a speech or language impairment. A CSE annual review meeting was held on June 23, 2022 to develop an Individualized Education Program (“IEP”) for the 2022-23 school year. The CSE recommended Integrated Co-Teaching (“ICT”) for math, ELA, social studies and science. The IEP also provided counseling, occupational therapy (“OT”) and speech language therapy (Ex. D-1-25). The Parents rejected the IEP and unilaterally placed the Student at the [REDACTED] (hereinafter referred to as “the private school”).

ISSUES

The Parents raise in the DPC numerous procedural and substantive challenges to the DPC regarding the appropriateness of the IEP including:

• He requires a small full-time special education class in a specialized school setting to meet his academic and emotional needs.

• The CSE failed to adequately consider information before it.

• An ICT class is too large, and the frequency of the support does not meet his needs.

• The IEP calls for too many transitions and does not provide support for engaging in group activities.

• The IEP does not provide sufficient support to manage his social/emotional challenges.

• The Parents were not able to meaningfully participate in the process.

• The IEP does not properly outline his present levels of performance and needs and is largely copied from the prior school year.

• The District did not evaluate him in all areas of suspected disability and failed to include parents in the evaluation process.

• IEP goals are inappropriate, and parents were not involved in their development.

• The IEP does not support his sensory challenges, language-based learning challenges or attention and executive functioning challenges.

• The IEP management needs are vague and cannot be implemented in the program.

• The CSE did not consider other options as indicated on IEP, nor did the IEP provide an adequate basis for recommendations and the other options considered section does not make sense.

• The IEP does not provide for peer-reviewed methods or a reading program.

• The IEP is insufficient to meet the Student’s needs and does not provide for assistive technology.

• The proposed peer group is inappropriate.

The DPC seeks reimbursement of tuition for the Parents’ unilateral placement at the private school. 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 a very motivated, empathetic, friendly child who loves his friends, family and sports teammates and is a pleasure to be around. He becomes frustrated when he is not good at something and would routinely resist engaging in anything difficult such as reading (T:106-08). The Student attended pre-school through first grade at the [REDACTED], an independent general education school. He was classified as a preschool student with a disability by the Committee on Preschool Education (hereinafter referred to as “the CPSE”) and received related services pursuant to an IEP. During first grade he received District speech/language and occupational therapy at [REDACTED], but the recommended counseling was not provided (Ex. P-C-4).

In September of 2021, during the first half of first grade, the learning specialist at [REDACTED] advised the Parents that the Student was struggling with expressive and receptive language based learning, including reading and writing and suggested he be evaluated (T:110). Private neuropsychological testing and classroom observations of the Student took place from December 10, 2021 through February 7, 2022. A report was generated by [REDACTED] (hereinafter referred to as “the psychologist”). The Student’s full-scale IQ was in the superior range. His composite scores ranged from average on verbal comprehension (conceptualization and elaboration of verbal concepts, such as understanding the meaning of words, connecting word meanings and explaining information in a verbally clear way) to very superior on fluid reasoning (rationally understanding/reasoning in novel situations).

On academic testing, he scored at a late kindergarten/early first grade level in reading and writing. His spelling score was at an early kindergarten level. His math skills were at grade level. The Student met the criteria for a Learning Disability in Reading and Writing. A comprehensive speech and language evaluation was recommended (Ex. P-C-19).

Based upon clinical assessment and parent and teacher measures, his attentional vulnerabilities did not rise to the level of an attention deficit hyperactivity disorder. Psychologically and socially emotionally, the Student was found to be an endearing boy with many personal strengths such as his friendly demeanor, perseverance and cooperative work ethic. Most of the scores on the rating scales were found to be within normal limits, with minimal signs of anxious behavior (Ex. P-C-18, 20).

The psychologist recommended special education teacher support services (SETSS) for reading and writing, speech and language therapy, occupational therapy and counseling. He stated that the Student’s performance would need to be monitored closely and that he may ultimately require a specialized school for bright learners with language based learning needs (Ex. P-C-20-21). The report also contained recommendations for his management needs (Ex. P-C-21-23). The Parents provided the District with a copy of the report in April of 2022 in preparation for his annual review meeting (T:111).

A school report form from [REDACTED] in January of 2022 indicated that the Student’s reading and writing was below average and math skills were average, consistent with academic testing (Ex. P-F-1). He had speech challenges in comprehension, expression and articulation. He was described as happy and polite, but often argumentative and disruptive (Ex. P-F-2). The reports described him as having memory challenges, trouble sequencing and trouble connecting to others. He was easily distracted and not working on grade level (Ex. P-F-3-5).

In February of 2022, the Student’s speech and language needs were assessed by a private agency. The Student was diagnosed with a moderate mixed receptive-expressive language disorder characterized by difficulty with comprehending and forming simple and complex sentence structure, using appropriate sentence-level grammar, comprehending narratives, producing narrative and following directions. He also demonstrated an articulation disorder (Ex. P-E-11). The evaluation recommended individualized speech language therapy to facilitate functional communication skills (Ex. P-E-13). The report was provided to the District prior to the annual review meeting and to the private school (T:124-25).

On April 9, 2022, the Parents received an email from staff at [REDACTED] recommending increasing speech and language to 3 x 45 minutes per week, adding SETSS, push-in support for writing, small group reading outside of the classroom with the Reading Specialist, summer support for speech and language and exploration of a new school for the Student (Ex. P-G). After reviewing the neuropsychological report, [REDACTED] advised the Parents that the Student should be in a more supportive alternative learning environment (T:116). The Parent signed a contract with the private school on May 19, 2022 (Ex. P-I-8). The total cost for tuition for the 2022-23 school year was $75,730 (Ex P-I-3). The Parents paid the tuition in full (Ex. P-M).

On May 26, 2022, the psychologist wrote a letter to whom it may concern, documenting previous diagnoses and providing an update based upon consultation with the family over the prior few months. She stated it had become apparent that the Student required a small special education school for bright students with language-based learning disabilities, as she alluded to in her evaluation report. She opined that he required evidence-based strategies and approaches to treat language-based learning disabilities with wrap around intervention during the school day in order to prevent academic and social-emotional regression (Ex. P-D). The Parents provided the District with a copy of the letter along with his school reports prior to the annual review meeting in June (T:112).

The Parents convened with the CSE on June 23, 2022. The CSE recommended an ICT program with related services (Ex. D-1). The Parents did not advise the District at the meeting that they had signed a contract with the private school (T:114). The Parent testified that if the District had recommended an appropriate program, the deposit made to the private school was fully refundable (T:115).

On or about July 28, 2022, the Parents receive a school location letter from the District indicating the Student’s public school placement would be at [REDACTED] (T:115). The Parents replied on August 11, 2022 that the IEP received did not contain any reference to the psychologist’s May 2022 letter. The District replied that the letter was used to assist with the IEP (Ex. P-H). The Parent testified that they were advised by the principal that the ICT class could have up to 28 students (T:122). By letter dated August 22, 2023, the Parents gave the District notice of their intent to unilaterally place the Student at the private school and seek tuition reimbursement (Ex. P-B).

[REDACTED] is the Student’s head teacher at the private school for the 2022-23 school year. She has been a head classroom teacher since 2017 and is certified by the New York State Education Department in childhood education grades^[1] through 6 and special education grades

During the 2022-23 school year, the Student’s schedule includes daily morning meeting ^[4], reading and math. It also includes periods of writing, music, art, science, independent work and social studies. One period per week is reserved for technology, library, language, community values, handwriting, RULER, mindfulness and red common/park (Ex. P-J).

In homeroom, there are eleven students, two full-time special education teachers, as well as push-in support from the speech language pathologist, one time per week for explicit language support and three times per week for writing (T:61-62). His reading teacher is duly certified in elementary and special education grades 1 through 6 and has Orton-Gillingham certification (T:68). He receives writing in a small group of 3 students (T:74).

His mid-year report stated he made tremendous growth in his confidence as a reader and writer. He began to decode unfamiliar words and engaged in writing activities with greater independence. The structure provided supports his executive functioning, language development and regulation, as it helped him independently recall where materials belonged, independently transition from one task to another and to meet expectations for various academic tasks. He benefits from previews of changes to routines, working in smaller groups with targeted instruction, opportunities to share his thinking, consistent prompting and receipt of immediate feedback. He also benefits from explicit instruction that was sequential, recursive and multisensory. He requires concrete materials and familiar/preferred topics to introduce new concepts, as well as extended time (Ex. P-K-1).

Targeted language supports are critical to helping him. Access to content-specific word walls, familiar sentence frames displayed on the board and reminders to “stop and think” improved his language organization. He practices strategies in his speech language pull-out that are consistently reinforced in the classroom. To address his distractibility and difficulties with impulse control, the private school provides consistent nonverbal cues, reward tickets and appealed to his developed perspective-taking skills (Ex. P-K-2).

In reading and spelling, he is provided instruction utilizing the Orton-Gillingham methodology, along with teacher modeling and scaffolding. He made progress in his accuracy and automaticity at both the word and sentence level and read with greater fluency. Reading comprehension was addressed with phonetically-controlled texts, and he made notable progress in self-correcting, sequencing, recognizing characters, settings, problems and solutions, building vocabulary and predicting and inferencing (Ex. P-K-3-6, T:71-73). In writing, using the private school’s writing program he focused on identifying the basic elements of a sentence and writing expanded sentences. Notable progress was made in generating complete sentences and using correct capitalization and punctuation (Ex. P-K-6-8, T:75-76). His math teacher uses concepts from both the Singapore math and Stern Math programs, and the math language, particularly with word problems, is broken down to meet his language needs (T:79-80).

His mid-year speech remediation report indicates that he received whole group, small group and push-in services to address receptive language and expressive language. His schedule reflects one 30-minute language session per week. The report indicates that he also receives push-in support during writing (Ex. P-L-2). His articulation issues are not being addressed specifically, but some strategies and technique building are incorporated (T:97).

The Parent testified that based upon his review of the midyear progress reports, regular communication with the teachers and conversations with the Student, he believes the private school is providing the student with an appropriate education (T:119)

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 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 (T:126). Based upon the District’s failure to present any defense of its 2022-23 IEP 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 District argues that the Parents have not met their burden to demonstrate that the program provided by the private school was proper. The District argues that the Parents have not demonstrated that the private school is implementing all of the recommendations of the private neuropsychological evaluation. While this is not the legal standard set forth under Prong II of the Burlington/Carter test, the record reflects that the school was providing small group targeted instruction in reading and writing, speech language therapy and a positive reinforcement plan, all recommended by the neuropsychological evaluation.

The District argues further that the private school does not offer enough social/emotional support, citing to the IEP’s recommendation for counseling for 30 minutes three times per week (T:128). There is no indication in the record that the Student requires counseling three times per week. The Head Teacher testified that the Student participates weekly in the RULER class provided by the school psychologist and initially participated in a social skills group. The private school found the social skills group was no longer necessary after a few sessions. His needs are now addressed through a consultation model (T:96).

The District also argues that the private school fails to provide the Student with articulation services. This concern was initially raised by the IHO based upon recommendations made in the private evaluations. The Head Teacher testified that although his articulation issues are not being addressed specifically, some strategies and technique building are incorporated into his services (T:97). In any event, a parent need not show that a private school offers every service in order to meet his or her burden. The record indicates that the private school is addressing his expressive and receptive language needs.

Finally, with regard to the equities, the District argued that the Parents failed to advise the CSE that it had entered into a contract with the private school for a small class placement in the private school (T:129). While I agree that the Parents could have been more open with the CSE regarding their plans, the Parents asserted that they could have been relieved of their obligations under the contract had the District offered an appropriate program. The District makes no argument that its program was appropriate. It is the District’s obligation to recommend an appropriate program regardless of whether or not the Parents shared this information. The Parents provided all evaluations and school reports to the CSE and did not thwart the process in any meaningful way that would have otherwise prevented the CSE from making a defensible recommendation.

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 his unique special education needs during the 2022-23 school year. The uncontroverted testimony and evidence as set forth above reflects that the private school provided him with specific strategies to address his difficulties with reading, writing, expressive and receptive language and executive functioning in a small, supportive, structured environment. Finally, I find that the equities weigh in the Parents’ favor.

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 2022-23 school year.

SO ORDERED.

DATED: May 16, 2023

Lisa Rusk, 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 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. Date Pages Due Process Request 12/5/22 6 pages

B. Notice of Placement 8/22/22 2 pages

C. Neuropsychological Evaluation 12/4/21-2/7/22 39 pages

D. Letter from [REDACTED] 5/26/22 2 pages

E. Speech and Language Assessment 2/2022 14 pages

F. School Report Form 1/10/22 5 pages

H. Email re: school location letter 8/11/22 7/2/22 2 pages

I. Enrollment Contract 5/19/22 8 pages

J. Daily Schedule 2022-23 1 page

K. Mid-Year Report 1/27/23 19 pages

L. Mid-Year Speech Language Report 2022-23 2 pages

M. Payment Affidavit 1/18/23 1 page

N. Ten Day Notice Response 9/11/22 1 page

O. Email re: Student 7/18/22-2/20/22 4 pages

DISTRICT EXHIBITS

1. IEP 6/23/22 32 pages DOE

2. Prior Written Notice 7/28/22 11 pages DOE

3. Teacher Progress Report Undated 11 pages DOE

4. Speech and Language Report 3/24/22 4 pages DOE

5. Speech and Language Report 6/15/22 4 pages DOE

6. Occupational Therapy Progress Report 2/23/22 2 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.

[1] through 6 (T:56-57). She testified that the Student presents with below grade level reading and writing skills that are addressed in small-group instruction. He also presents with expressive and receptive language challenges that are addressed in language dyads and intervention woven throughout his school day across academic domains. With regard to expressive language, the private school works on word retrieval, using clear language, providing context and building advanced vocabulary. For receptive language, they are working on processing auditory information, and multi-step directions. He has responded well to the highly structured environment (T:58-61). Socially, the private school works on reducing conflict and dealing with emotions (T:58- 59). The school also supports his challenges with distractibility and impulse control through direct interventions that have increased his focusing and minimized his calling out (T:66). The classroom utilizes a token reward system, and he benefits from the behavior reinforcement system (T:81-82). The school psychologist pushes in weekly for a Yale-based social-emotional program, RULER (T:83-84).

[4] The Student arrives at 8:05 am and has a routine and activities that he works on prior to morning meeting (T:91).