New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 000000 - NYC: 000000

CASE NUMBER: 245124

FINDINGS OF FACT AND DECISION

Case Number: 245124

Student’s Name: REDACTED REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: January 19, 2023

Date(s) of Hearing: January 31, 2023

February 9, 2023

March 7, 2023

April 20, 2023

Actual Record Closed Date: May 17, 2023

Date of Decision: May 30, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 31, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

February 9, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

March 7, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

April 20, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

REDACTED REDACTED, Principal, REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about January 19, 2023. Ex. A. 1 On January 19, 2023, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement or direct funding for tuition for REDACTED’s placement at the REDACTED program at REDACTED (“REDACTED”) for the 2021-2022 school year. Ex. A.

I conducted a prehearing conference on January 31, 2023. Counsel` appeared on behalf of REDACTED’s parent; no one appeared on behalf of the Department. Counsel confirmed that REDACTED’s parent was seeking tuition reimbursement for REDACTED for the 2021-2022 school year. Counsel requested a pendency hearing. I scheduled the pendency hearing for February 9.

On February 9, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. A pendency hearing was conducted; Parent’s Exhibits A and B were admitted in evidence; and an Order on Pendency was subsequently issued. The hearing was scheduled for March 7.

On March 7, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Counsel for REDACTED’s parent presented an opening statement.

On April 20, counsel appeared on behalf of REDACTED’s parent and on behalf of the Department. Department Exhibits^[1] through 3 were admitted in evidence. The Department did not present the testimony of witnesses and rested its case. Parent’s Exhibits C through K were admitted in evidence..

Counsel requested extensions of the compliance date, and written Orders of Extension were issued, on March 7 and April 20, 2023. The reasons for granting the extensions are set forth in the Orders.

The record closed on May 17, upon the Hearing Officer’s receipt and review of the transcript of the final day of hearing.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.

Parent consented to conducting the hearing via videoconference and to the transmission of this written decision via email. Tr. 39.

ISSUES

REDACTED’s parent requests funding for tuition and related services costs owed to REDACTED for REDACTED’s enrollment at REDACTED for the 2021-2022 school year. At the hearing, the Department did not defend the special education program that it offered to REDACTED for the 2021-2022 school year. The issues to be resolved are:

1. Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2021-2022 school year?

2. Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

1. REDACTED is a now REDACTED-year-old girl who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as autism. Ex. A at 1.

2. REDACTED is diagnosed with REDACTED and REDACTED. Ex. 1 at 1; Ex. J at ⁋ 14.

3. REDACTED experiences challenges with focus and attention, communication skills, organization, executive functioning, fine and visual motor skills, sensory processing, and academics. Ex. 1 at 1-2, 5-6; Ex. J at ⁋ 15. She is functioning significantly below grade level in all areas of academics. Ex. 1 at 2.

4. As a preschool student, REDACTED received CPSE services, including SEIT, speech therapy, and occupational therapy. Tr. 58-59.

5. REDACTED entered REDACTED in September 2019. Tr. 59; Ex. J at 10.

6. REDACTED is a nonpublic educational program for students with disabilities. It special education classes are housed in general education schools. Ex. H; Ex. J at ⁋ 4.

7. The CSE convened an IEP meeting for REDACTED on January 19, 2021; REDACTED’s mother attended this meeting. Ex. 1 at 1, 25, 27.

8. The CSE recommended that REDACTED attend a 12:1:1 special education class in a District 75 special education school and receive the related services of speech-language therapy, occupational therapy and counseling. Ex. 1 at 20-21; Ex. 2 at 1.

9. The Department offered REDACTED a placement at P.S. REDACTED in Brooklyn. Ex.

2 at 5.

10. REDACTED’s mother submitted a “ten-day” notice letter to the Department on August 27, 2021. Ex. D. In the letter, REDACTED’s mother informed the Department that, and that she would be placing REDACTED at REDACTED and seeking tuition funding from the Department. Ex. C.

11. REDACTED attended REDACTED for the entirety of the 2021-2022 12-month school year. REDACTED was a REDACTED grade student during the 2021-2022 school year.

Ex. G

12. REDACTED’s class included nine students with one teacher and two full-time assistants. There was also a “rotating” assistant who would push-in to the classroom during some subjects to provide additional 1:1 support. Tr. 43-44.

13. REDACTED needed teacher support and 1:1 support in the classroom due to her focusing and language processing difficulties; she needed a small class, repetition of instruction, skills broken down, and prompting. REDACTED’s classroom teacher and the assistants provided these interventions and supports. Tr. 53; Ex. J at ⁋⁋ 17, 19, 21.

14. REDACTED’s school schedule included prayers, daily law, Bible studies, morning routine, reading, reading centers, reading comprehension, homework instruction, REDACTED language, lunch, phonics, vocabulary, math, writing, social studies, current events, and geography. The schedule also included REDACTED’s related services sessions for occupational therapy (four 30-minute sessions per week), speech therapy (two 30-minute sessions per week) and counseling (one 30-minute session per week). Ex. G; Tr.

46-47.

15. Related services were provided by appropriately licensed therapists. Tr. 46-47.

16. In reading, REDACTED needed much work in phonics; during phonics time, REDACTED worked on both decoding and encoding. Tr. 48; Ex. J at ⁋ 23.

17. During reading comprehension, REDACTED worked on comprehension on a literal level, answering “WH” questions, and answering higher level comprehension questions involving identifying the main idea, predictions, and making inferences. Tr. 49; Ex. J at ⁋

22.

18. Reading “centers” is reading instruction with students receiving individual sessions work on their specific needs; REDACTED worked on phonemic awareness, an area of significant weakness for her. Tr. 49-50.

19. In writing, REDACTED worked on organizing her thoughts to create complete sentences. Ex. J at ⁋ 24.

20. “Homework instruction” is for students to write down their homework assignments and ensure that they understood what they were required to do for homework. REDACTED needed this activity, with support from her teacher, because she has difficulties following directions and focusing on what she needs to do. Tr. 52-53.

21. Prayer time, daily law, and Bible studies were the religious components of the school day. Tr. 49. Religious observance and study constituted 16 percent of the schedule. Tr. 51; Ex. at J at ⁋ 34.

22. In speech therapy, REDACTED worked on following multi-step directions, conversational and social skills, and attention. Ex. J at ⁋ 30.

23. In occupational therapy, REDACTED worked on fine and gross motor skills, sensory processing, and visual and auditory processing skills, and attention. Ex. J at ⁋ 31.

24. In counseling, REDACTED worked on social communication and play skills and selfawareness. Ex. J at ⁋ 32.

25. REDACTED made progress at REDACTED during the 2021-2022 school year (Tr. 60; Ex. I; Ex. J at ⁋⁋ 22-28, 30-32):

a. Improved reading comprehension, including with inferencing and describing characters; b. Improved decoding to a mid-second grade level; c. Improved writing skills, including use of transition words and vocabulary; d. Improved her math skills, including addition and subtraction of three digit numbers with regrouping, telling time, and counting coins; she moved from a beginning second grade level to an end of second grade level; e. Improved her social skills and was able to interact with her peers; f. Made progress in receptive and expressive language skills; and g. Improved her focus and sensory regulation.

26. REDACTED’s mother signed an enrollment contract for REDACTED’s attendance at REDACTED for the 2021-2022 school year. Ex. D. REDACTED’s parents are obligated to pay the tuition amount of $52,000.00 and the related services costs of $12,600.00, for a total of $64,600.00, set forth in the contract.. Ex. D.

27. REDACTED’s parents have not paid the REDACTED tuition and were, at the time of the hearing, financially unable to pay the tuition. Exs. E, F, K at ⁋ 15.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A board of education may be required to pay for education 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. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district 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. RE-1, 137

S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 N.Y.C.R.R. §§ 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the DOE did not present testimony to defend its offer of a FAPE to REDACTED for the 2021-2022 school year. Since the Department did not offer any testimony to demonstrate that the program it had developed for REDACTED for the 2021-2022 school year was “reasonably calculated” to permit her to make progress given her unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test. Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?

REDACTED’s parent bears the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s mother must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which her specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small special education classes in which she received intensive instruction and teacher support to specifically address her academic challenges, and attention/focusing and speech and language delays, so she could learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 12 through 24, above. REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraph 25, above.

The evidence thus demonstrates that REDACTED provided REDACTED with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED was appropriate for REDACTED for the 2021-2022 school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion. Does the balance of the equities favor REDACTED’ parents?

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’ parent cooperated with the CSE by attending the CSE meeting, communicating with Department personnel about her concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that REDACTED’s parent impeded the Department’s efforts to offer REDACTED a FAPE.

Furthermore, REDACTED’s parent has an obligation under the contract to pay REDACTED’s tuition at REDACTED for the 2021-2022 school year. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment to a school or provider (rather than reimbursement to a parent) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition, as in the instant case, and subsequently seek repayment from the school district. See also Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023).

While REDACTED’s parent is financial unable to pay the REDACTED tuition (see paragraph , above), there is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof in inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). Thus, an analysis and a ruling on REDACTED’s parents’ inability to pay is neither necessary nor appropriate.

Equitable considerations thus favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parent prevails with respect to the third Burlington/Carter criterion.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

The Department of Education shall fund REDACTED’s placement at REDACTED for the 2021-2022 12-month school year. The amount of funding for the 2021-2022 ten-month school year shall consist of 84 percent of the total September 2021 through June 2022 program costs, in an amount not to exceed $ 54,264.00.

SO ORDERED.

DATED: May 30, 2023

Jean Marie Brescia, 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

A. Letter Date # of Pages Name of Document DPC 1/19/23 3 pages

B. FOFD 225957 8/3/22 21 pages

C. Parent letter 8/24/21 2 pages

D. Contract 21-22 2 pages

E. Payment affidavit 3/13/23 1 page

F. Federal 1040 form 2021 2 pages

G. Schedule 21-22 1 page

H. Description of program N/A 2 pages

I. End of Year Progress Reports June 2022 3 pages

J. School Witness Testimony Affidavit 4/19/23 5 pages

K. Parent Affidavit 4/19/23 3 pages

DEPARTMENT EXHIBITS

1. IEP 1/19/21 28 pages DOE

2. Prior written notice 6/10/21 11 pages DOE

3. Prior Written Notice original 3/31/21 9 pages DOE

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”