New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243355

Student's Name: REDACTED

District: REDACTED

Hearing Requested By: Parent

Record Closed Date: August 7, 2023

Hearing Officer: Dora M. Lassinger

On December 5, 2022, the parent filed a due process request challenging an IEP developed on June 13, 2022, alleging a denial of a Free Appropriate Public Education (“FAPE”) for the 2022/2023 school year, and requesting funding for her unilateral placement of the student at REDACTED (hereinafter “the private school”) . (Par. Ex. A).

I was designated to hear this matter on May 13, 2022. A pre-hearing telephone conference was held on December 6, 2022. The compliance date was extended while the Department of Education (“DOE”) investigated this matter for a possible settlement; and when a settlement did not occur, a hearing on the merits proceeded on June 16 and August 2, 2023.

Department of Education (“DOE”) Position

The DOE presented documentary only at the hearing, and argued that those documents establish that it provided that the student was provided with a FAPE. It also argued that the parental placement was not appropriate; because it did not include basic subjects of social studies and science, which are typical of a middle school curriculum. In the alternative, the DOE argued that the parent should not be awarded funding for the religious portion of the student’s program . (Tr. pp. 85-88).

Parent’s Position

The parent argued that the DOE failed to meet its burden of proving that it provided the student with a FAPE, that the parental placement is appropriate and that full funding should be awarded, as only a de minimus amount of religious instruction has been provided. She further argued that if there is any reduction for religious instruction, it should be limited to a 16.15 percent reduction. (Tr. pp. 80-81). The parent noted that the DOE did not place any evaluations into evidence that would support its recommendations. (Tr. p. 76).

Prior Proceedings

The student was the subject of a prior impartial hearing before me which resulted in a decision dated November 24, 2022, finding that the DOE failed to provide the student with a FAPE, that the parental placement at the private school was appropriate, and that the DOE was required to fund eight-seven percent (the non-religious portion of the student’s instruction) of the student’s tuition for the 2021/2022 school year. (Par. Ex. D). 1

Based upon that order, the parties agreed that the student was entitled to funding at the private school effective with the date of filing of this complaint (December 5, 2022), and during the pendency of due process. (Par. Ex. R).

Evidence at Hearing

The student began attending the private school during the 2020/2021 school year, and has remained there since. His mother testified that the student has diagnoses of ADHD, ODD, anxiety disorder and Celiac disease. She testified that she participated in a June 13, 2022 CSE review, but that no additional assessments were conducted in preparation for that meeting. (Par. Ex. AA).

On June 13, 2022, the student was classified with Other Health Impairment and recommended for placement in a Special Class (12:1+1) 25 periods per week (for academic subjects) with related services of Counseling,^[1] x 30 individually and 1 x 30 in a group; and Occupational Therapy (“OT”) 2 x 30, individually. (DOE Ex. 2-17). The only evaluations referred to in the IEP are teacher progress reports and input. At the time of the CSE meeting, the student was attending a REDACTED class in the private school. His teachers reported that he was functioning on a fourth-grade level academically. His class had six students and wo teacher’s assistants. It was reported that the student was receiving math instruction on a one-to-one basis; and ELA in a group of two student. It was further reported that he was making progress academically, but continued to need 1:1 or 2:1 support in all core subjects. (DOE Ex. 2-2).

It was reported that the student was receiving Speech services at the private school. The student’s mother was advised to request a Speech Evaluation from the Committee on Special Education, due to concerns about the student’s difficulties with expressive, receptive and pragmatic language skills.(DOE Ex. 2-2). There is no indication, however, that such an evaluation was ever performed.

It was reported that the student had diagnoses of ADHD, ODD and Celeac (sic) disease, for which he receives medication. His counselor reported that the student struggles with social skills and maintaining friendships; and that he benefits from social groups which he participates in at school. It was reported that he can be impulsive and has difficulty with transitions. (Ex. 2-3). The CSE determined that the student does not require a behavior intervention plan. (Ex. 2 at 5).

The only formal testing referred to in the IEP is a test of motor proficiency performed by the student’s OT provider. (DOE Ex. 2 at 4). The private school’s educational director stated that he would like the mother to follow up with a neuropsych (sic) evaluation as the student is “an enigma cognitively”. (DOE Ex. 2 at 2).

The student’s mother testified that she disagreed with the CSE’s recommendation, because her son required a smaller class size and more behavioral support.

A Prior Written Notice and was sent to the parent on August 11, 2022 . The prior written notice refers to a Psychoeducational Assessment dated April 24, 2020, which was not made part of the record, or cited in the IEP. It also makes reference to various progress reports submitted by the school. (DOE Ex. 4).

On the same date, the parent was sent a School Location Letter, designating a public-school placement where the services recommended in the IEP would be provided. (DOE Ex. 4).

The student’s mother called the recommended school on several occasions, but was unable to reach anyone. (Par. Ex. AA-3).

On August 23, 2022, the parent, through her attorney, wrote to the CSE stating that she had been unable to visit the recommended site. She wrote she would enroll the student at the private school, and seek public funding for the tuition, if she determined that the recommended site was not appropriate. . (Par. Ex. B). On October 14, 2022, the parent, through her attorney, wrote a follow up letter stating that she spoke with personnel at the recommended site and determined that the school could not meet the student’s needs. She wrote that the student would continue to attend the private school, and that the parent would seek public funding for the tuition. (Par. Ex. C).

On August 31, 2022, the parent entered into a Letter of Agreement with the private school, agreeing to pay tuition in the amount of $95,000 for the 2022/2023 school. year (Par. Ex. N). As of March 20, 2023, the school had received no payment at all toward the tuition. (Par. Ex. P). The parent presented proof that her income consists solely of Supplemental Security Income, and that she is unable to pay anything toward the tuition and seek reimbursement. The parent is seeking direct tuition funding for the school. (Par. Ex. Q, AA).

She testified that the school has not demanded any payment from her for the student’s tuition, for the current school year. Nor has she made any payment at all for the prior year’s tuition. (Tr pp. 68-69). She testified that the outstanding balance has not been forgiven; and that she has established a payment plan to pay the balance owed, which consists of helping raise the funds. (Tr. pp. 69, 73).

The principal of the private school testified that he has a Master’s Degree in Educational Leadership and Administration and is licensed as a school administrator. He also has certification in a behavior training program. The private school serves students, in grades kindergarten through eight, with average cognition; who struggle in a mainstream setting, due to behavioral and social challenges. The school has two Board Certified Behavior Analysts (“BCBA”’s) on staff, and utilizes Applied Behavior Analysis (“ABA”) for behavior management. The school staff also includes certified special education teachers, and licensed social workers.

During the 2022/ 2023 school year, the school had approximately 50 to 55 students. The student began attending the private school during the 2020/2021 school year, due to his difficulty in a mainstream environment; and remained at the private school during the 2022/2023 school year .

At the start of the school year, he had difficulty with focus, would become distracted, and would distract his peers, by calling out. He also would avoid work. His class had six students, one lead teacher, and two assistant teachers. He received a great deal of behavioral support, and instruction individually or in a small group; with other students within a one-year age range.

The student also received direction instruction in social skills, in social skills groups. He worked on improving his hygiene skills, initiating and maintaining a conversation, selfregulation skills, and becoming a better friend. The student progressed in his hygiene, in his ability to listen and show empathy, and in his ability to raise his hand, rather than call out.

The student received individual and small group instruction for reading, and progressed , through a fifth-grade curriculum, in his comprehension, decoding and encoding skills. He progressed from a fifth grade to a sixth-grade level in reading and writing. In math, he progressed from a fourth grade to a fifth-grade level.

The student received related services of OT, Speech/Language Therapy (“SLT”), and ,. Counseling two times each week. All of the student’s therapists were licensed.

Through his counseling sessions, the student improved in his ability to deal with his frustrations appropriately and remain focused on academics. In SLT, he worked on improving his receptive, expressive and pragmatic language skills. OT sessions focused on improving his sensory processing, flex integration and his upper extremity coordination. (Par. Ex. BB).

In a June 2023 progress report, the student’s teacher reported his teacher reported mastery of long-term goals related to comprehension, spelling/phonics and vocabulary; writing and grammar, and math computation and problem solving. (Par. Ex. U). Continuation of goals related to executive functioning, sensory processing and upper extremity coordination, receptive, expressive and pragmatic language skills was recommended. (Par. E. V, W). Continuation of various social skills goals was recommended, with mastery reported of some personal hygiene skills, conversational skills and friendship skills. (Par. Ex. Y).

According to the principal of the private school, religious instruction consisted of morning prayer five times each week for 30 minutes (150 minutes); Gemara (Talmud) three times each week of 30 minutes (90 minutes) and afternoon prayer, four times each week for 15 minutes (60 minutes), and Bible study (10 minutes) once each week.^[2] The principal stated that there were 1920 minutes of instruction each week; however, based upon the schedule in evidence there were actually 1,860 minutes (31 hours) of instruction in the school week. According to his calculation, 16.15 percent of the school week was devoted to religious content.^[3] (Par. Ex. M; Tr. p. 52). Academic instruction in the school includes spelling/grammar, Math, and Writing. The rest of the student’s time at school is devoted to Lunch, two period of recess (which includes structured physical activity) Prayer, Social Skills, Related Services, Religious Instruction, Specials (sports, cooking, science lab on alternative weeks and other extracurricular activities, with a focus on social skills and organization skills), General Studies (this can include current events, as well as instruction in financial matters such as credit cards and banking). The student does not receive specific instruction in social studies or history, and his instruction in science occurs once every other week. (Par. Ex. M, Tr. pp. 51-57). The principal testified that the language arts curriculum incorporates the writing and analytic skills that are typically taught in history classes. (Tr pp. 65-66).

He testified that the 12:1+1 class recommended in the student’s IEP was not appropriate because it would not provide sufficient behavioral or academic support. In addition, he testified that the recommended program was deficient because it did not include SLT or specific social skills instruction. (Par. Ex. BB).

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 his circumstances. Id. at 1002.

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 be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

In these proceedings, the DOE presented no clinical data to support its recommendations. In making its recommendations, it relied exclusively on reports from the private school about the student’s academic functioning. There is no information in the record regarding the student’s cognitive ability; and the IEP indicates that while SLT was not recommended; the CSE felt that a speech evaluation was warranted, based upon reports from the school.

The parent presented evidence that the student required a small class, individual and small group instruction, SLT and behavioral support, in order to progress. I credit the private school principal that the student would not have been sufficiently supported academically or behaviorally in the recommended program. Therefore, the DOE failed to meet its burden of proving the appropriateness of its recommendations.

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).

Although there is a lack of evaluative data in the record, it is the school district that is held accountable for any lack of information regarding the student’s needs. Application of the New York City Department of Education, Appeal No. 20-131, citing A.D. v. Bd. Of Educ of City Sch. District. Of New York, 690 F. Supp. 2d 193 (S.D.N.Y. 2010). The student was delayed by two years academically, and had difficulty with focus, behavior and in social skills.

The private school met the student’s unique needs, by providing a program which included a small class with a high teacher to student ratio, behavioral support, direct instruction in social skills and related services of OT, SLT and Counseling. Academic instruction was provided individually and in small groups. The student progressed in reading, writing and math. He also progressed in his hygiene skills, and in his social interactions. His behavior was managed through an ABA based program.

Although it would be desirable for the student to receive more instruction in social studies and science, some elements of both were incorporated into the Specials, General Studies, and ELA; and the private school appropriately focused on the student’s deficit areas.

For all of the foregoing reasons, I find that the parent met her burden of proving the appropriateness of the parental placement.

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).

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998).

In these proceedings, the parent provided notice of her disagreement with the CSE’s recommendations and her intention to unilaterally place the student and seek funding. The parent participated in the disputed IEP meeting and communicated with the proposed site. The parent presented proof that she was unable to pay any portion of the tuition up front and seek reimbursement.

I agree with the DOE , that the portion of the day which consists of religious instruction (16.66 percent) should not be funded by the DOE, as this would have the effect of advancing religion. cf. Agostini v. Felton, 473 U.S. 402 (1997). Contrary to the parent’s argument, religious instruction was more than a de minimus amount of the overall curriculum.

Therefore, I will order the DOE to pay the private school $79,173.00, (83.34 percent of $95,000), on account of the student’s tuition for the 2022/2023 school year.

Evaluations

The record contains very limited clinical information, and indicates that testing was last performed by the DOE in April 2020. According to the IEP in evidence, both the private school and the CSE have indicated that additional testing is warranted. Furthermore, a triennial evaluation is overdue, if it has not yet been performed. See 8 NYCRR 200.4(b)(4). Therefore, if a triennial evaluation has not yet been conducted, it should be conducted expeditiously.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows: (1) The DOE shall pay the private school $79,173.00, on account of the student’s tuition for the 2022/2023 school year, by August 28, 2023; (2) The DOE shall conduct a triennial evaluation, including a speech/language evaluation of the student by October 9, 2023 (to the extent that any of the required testing has not already been conducted).

Dated: August 8, 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 EXHIBIT

EXHIBIT DATE NAME PAGES

1. Due Process Complaint 12/5/2022 7 pages DOE

2. Individualized Education Program 6/13/2022 25 pages DOE

3. Attendance Page 6/13/2022 1 page DOE

4. Prior Written Notice (Notice of Recommendation) 8/11/2022 11 pages DOE

PARENT’S EXHIBITS

REDACTED

Footnotes

[1] My prior decision resulted in a balance owed by the parent, in the amount of $11,050.00.

[2] The student received only 10 minutes each week of the forty-minute Bible Study, because he attended OT during that time period. (Par. Ex. M).

[3] According to my calculation, 16.66 percent of the school week is devoted to religious content. (310 divided by 1,860= 16.66).