Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243579

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: February 2, 2023

March 7, 2023

April 4, 2023

May 3, 2023

June 13, 2023

July 22, 2023

August 28, 2023

October 19, 2023

Actual Record Close Date: December 5, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

February 2, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

March 7, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

April 4, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

May 3, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

June 13, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

July 22, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

August 28, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

October 19, 2023

For the Student:

REDACTED Parent Attorney

REDACTED Parent/Father

For the Department of Education:

REDACTED DOE Attorney

INTRODUCTION

On January 23, 2023, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about December 9, 2022. The DPC is carried under New York City (“NYC”) Case No: 243579. The impartial hearing was held over a series of dates, to complete the record on October 19, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on December 5, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a student classified by the NYC DOE as a student with “Other Health Impairment” (Exhibit A). She is diagnosed with Attention-Deficit/Hyperactivity Disorder, Predominant Inattentive Type ("ADHD"); Specific Learning Disorder, with impairment in reading, phonological and orthographic processing (Dyslexia); Development Disorder of Scholastic Skills: Visual Perceptual Learning Disability (Visual-Motor Integration and Visual Memory); Specific Learning Disorder, with impairment in mathematics: number sense, learning arithmetic facts, math reasoning, and performing fluent calculations (Dyscalculia); and an Unspecified Anxiety Disorder. REDACTED presents with notable variability in her cognitive skills, which range from the "Extremely Low" to the "High Average" range. She presents with deficits in the areas of: executive functioning, cognitive flexibility, processing speed, working memory, visual processing, visual motor integration, decoding (phonological awareness and fluency), reading comprehension, writing, and mathematics. REDACTED further presents with notable anxiety and has a history of engaging in selfharm behaviors, as well as verbal aggression. She struggles with a low frustration tolerance, low selfesteem/self-confidence, and social/emotional skills (Exhibits A and M).

From Kindergarten (2016/17 school year) through fifth grade (2021/22 school year) REDACTED attended a district run public school (P.S. 3) experiencing an array of academic struggles. However, she was not identified as a possible student with a disability until November 2021 (Exhibit A and T @ 51). Parents became concerned about their child's academic and social/emotional needs and arranged for her to be privately evaluated April-May 2021 (Exhibit M). This report was subsequently provided to P.S. 3. REDACTED found that REDACTED met the diagnostic criteria for ADHD; Specific Learning Disorders, a Visual Perceptual Learning Disability, and Unspecified Anxiety Disorder. It was recommended that she be placed in a small classroom with a supportive student-to-teacher ratio. REDACTED further recommended that REDACTED be provided with reading instruction based in scientifically proven educational methods, and be provided with other supports, services and accommodations to address the full range of her academic, social/emotional, and executive functioning needs (Exhibits A and M). It was not until on or about November 1, 2021, that the SBST/CSE at P.S. 3 convened to develop an IEP for REDACTED and she was classified as a student with a disability, specifically: “other health impairment” for the first time (Exhibit A). The team recommended that for the 2021/22 school year REDACTED attend an Integrated Co-Teaching Services ("ICT") class for ELA, Math, Sciences, and Social Studies. While REDACTED attended 5th grade at P.S.3, Parents allege the program proved to be wholly inappropriate and insufficiently supportive and REDACTED as she continued to experience academic and social/emotional struggles. REDACTED "aged out" of P.S. 3 at the end of the 2021/22 school year. On or about June 21, 2022, REDACTED 's parents requested a reconvene to recommend an appropriate special education program and related services for REDACTED for the 2022/23 school year. However, the SBST/CSE failed to convene prior to the start of the 2022/23 school year and as a result, the November 2021 IEP continued to control REDACTED 's education.

The Parent alleged numerous procedural violations and substantive inadequacy and claimed a deprivation of FAPE for the 2022/23 school year (Exhibit A). The Parents allege giving notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of their intent to absent an appropriate educational program they would enroll REDACTED at the REDACTED (REDACTED) for the 2022/23 school year (Exhibit B). Subsequently, the Parent filed a DPC and now seeks reimbursement for REDACTED’s unilateral placement at REDACTED for the 2022/23 school year (Exhibit A, T @ 52), waiving all other relief initially sought in the DPC (T @ 52-53, 62).

In an effort to support their position, the parent presented a documentary exhibit package consisting of thirteen pieces of evidence (Exhibits A-M), including the affidavit testimony of REDACTED, Director of Academic Support at REDACTED (Exhibit K) and the live testimony of REDACTED, parent/father (T @ 53-61).

At the hearing, the DOE’s representative waived an opening statement, represented it would not be presenting documentary or evidence or witness testimony to overcome its burden of proof; opted not to cross-examine any of parent witnesses and waived a closing statement (T @ 37, 47, 49 and 60).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. 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 R. and Dianne R. 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 R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, as the DOE failed to present a Prong I no further analysis is required as a FAPE denial is deemed conceded.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “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).

Herein, I credit the evidence and testimony (Exhibits F-H, K and T @ 59) submitted by Parent and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which she was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, multi-sensory instruction, modifications and supports and specialized scientifically based reading instruction required by REDACTED to make progress. Related services are provided and incorporated into the academic program (Exhibit K).

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that she received a highly individualized instruction that enabled her to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits F-H, K and T @ 59).

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not raise any equity concerns and I find there are no the equity considerations for the 2022/23 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2022/23 school year. REDACTED’s Parents timely put the DOE on notice of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibit B). The record supports via the credible testimony of REDACTED that Parents intended to place REDACTED in a public school setting if offered an appropriate program and placement by the DOE and only signed a contract with REDACTED as if provided an escape clause (T @ 58 and Exhibit I).

I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2022/23 school year. Based upon the foregoing,

ORDER

It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse Parents all costs associated with the student's tuition at the REDACTED for the 2022/23 school year in the amount of $71,500.

All payments shall be supported by the presentation of appropriate documentation.

This Order excludes any sessions that may have been previously paid by the DOE pursuant to any Pendency Agreement.

Dated: December 10, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON October 19, 2023

A. Parent: Impartial Hearing Request, 12/09/22 -7pp

B. Ten Day Notice and Confirmation, 06/21/22 -4pp

C. The REDACTED Program Description for Middle School, Undated -1pp

D. The REDACTED Semester 1 Schedule, 2022/23 -2pp

E. The REDACTED Semester 2 Schedule, 2022/23 -2pp

F. The REDACTED Instructor/Teacher Classroom Report, 05/01/23 -5pp

G. The REDACTED Speech-Language Report, 2022/23 -2pp

H. The REDACTED Counseling Report, Spring 2023 -2pp

I. Enrollment Contract, 2022/23 – 3pp

J. Tuition Affidavit, 08/28/23 -2pp

K. Affidavit of REDACTED, 10/10/23 – 8pp

L. Proof of Payment, Miscellaneous -8pp

M. Comprehensive Evaluation Report, 04/08/21;04/15/21;04/23/21 and 05/04/21 -44pp