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CASE NUMBER: 597243– NYC: 246577
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Date of Filing: March 13, 2023
Date(s) of Hearing: July 18, 2023
Record Close Date: August 21, 2023
Date of Decision: August 25, 2023
Time Sensitive No
Impartial Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 18, 2023
For the Student:
[REDACTED] (“Parent’s Attorney”)
[REDACTED] (“Mother” or “Parent”)
[REDACTED] (“High School Director at the Private School”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[1] This case concerns Student, a [REDACTED] -year-old, who was classified by the New York City Department of Education (“DOE” or “District”) as a student with a Learning Disability.[2] On March 13, 2023, the Parent, through her attorney, filed a Due Process Complaint (“DPC”) against the DOE.[3] In the DPC, the Parent alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year.[4] Therefore, the Parent unilaterally placed the Student in a private school (“Private School”) for the 2021-2022 school year. [5]
In the DPC, the Parent alleged that the Committee on Special Education (“CSE”) convened on March 15, 2021 to develop an Individualized Education Program (“IEP”) for the Student for the 2021-2022 school year, but the IEP created was not appropriate for the Student.[6] The CSE recommended an Integrated Co-Teaching (“ICT”) classroom with related services including individual counseling services once per week and individual speech-language therapy twice per week.[7] The CSE provided two recommended public school placements (“Public School 1”) and (“Public School 2”) for the Student.[8] The Parent disagreed with the program and the placements and alleged that both the program and the placements offered by the DOE were inappropriate for the Student because an ICT classroom would be too large of a setting for the Student.[9] The Parent argued that the Private School is an appropriate placement for the Student. [10]
By way of relief, the Parent seeks an award of direct tuition funding for the Student’s attendance at the Private School for the 2021-2022 school year.[11] The Parent alleged that the equities support her claim for direct tuition funding for the school year at issue since the Parent has fully cooperated with the CSE and properly gave the CSE written notice of her intent to unilaterally enroll the Student at the Private School. 12
As discussed below, I find that the DOE denied the Student a FAPE for the 2021-2022 school year. I find that the Private School was appropriate and offered the Student specially designed instruction sufficient to meet the Student’s needs. In addition, I find that the equities support the Parent’s request for direct tuition funding for the 2021-2022 school year.
PROCEDURAL HISTORY
On March 14, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On April 13, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE Attorney requested additional time to determine whether the case can be recommended for settlement. The Parent’s Attorney joined in that request, and a status conference (“SC”) was scheduled for May 5, 2023.[13] On May 5, 2023, both parties appeared for a status conference and the Parent’s Attorney requested to give the parties more time for settlement purposes instead of scheduling a due process hearing.[14] A second SC occurred on May 23, 2023. At that time, the parties jointly requested an extension of the compliance date for settlement purposes, which I granted.[15] A final SC was held on June 15, 2023. On that date, the parties requested an extension of the compliance date because of witness availability, which I granted, and the due process hearing was scheduled for July 18, 2023. [16]
A virtual DPH was held on July 18, 2023. It was a closed hearing. The Student’s mother was present (“Parent”) and represented by the Parent’s Attorney. The DOE Attorney was also present. The DOE Attorney entered 11 exhibits into the hearing record without objection.[17] The DOE Attorney declined to call any witnesses at the hearing and indicated that the documentary evidence alone sufficiently shows that the Student was provided a FAPE for the 2021-2022 school year.[18] The DOE rested on the documentary evidence submitted into the hearing record. The Parents entered[12] exhibits into the hearing record without objection, including affidavit testimony from the Parent and the High School Director at the Private School.[19] The Parent and the High School Director at the Private School testified live for cross-examination.[20] The Parent rested, the parties gave closing statements, and jointly requested to extend the compliance date, which I granted.[21] The record was closed on August 21, 2023.
The DOE took the position that although the DOE did not call any witnesses at the hearing, the DOE met its burden to show that the Student was provided with a FAPE for the 2021-2022 school year through the documentary evidence admitted into the hearing record.[22] In addition, the DOE argued that the Parent failed to meet her burden in showing the appropriateness of the unilateral placement at the Private School, and if any relief is granted, reductions are warranted for non-secular education. [23]
The Parent took the position that the DOE failed to meet its burden at the hearing to show that the Student was provided a FAPE for the 2021-2022 school year, the unilateral placement at the Private School was appropriate for the Student, and that the equities support an award of direct tuition funding minus the portion attributed to religious instruction. [24]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently [REDACTED] years old and was in the twelfth grade at the Private School for the 2021-2022 school year.[25] The Student is social, well-liked, and motivated.[26] The Student has been identified as a student with a disability by the DOE’s CSE and given the classification of Learning Disability.[27] The Student is diagnosed with Attention-Deficit Disorder (“ADD”) and therefore, has significant attentional deficits and struggles with executive functioning skills.[28] In addition, the Student struggles with anxiety and has academic and language delays which impact her in a classroom setting.[29] She has academic delays in English-Language Arts (“ELA”) and has challenges with reading comprehension and writing.[30] The Student works best in a small and intensive special education program with 1:1 academic support. [31]
The DOE convened a meeting of the CSE on March 15, 2021 to develop an IEP for the Student for the 2021-2022 school year.[32] The CSE recommended an ICT classroom setting for math, ELA, social studies, and science, and related services including individual counseling services once per week for 40 minutes and individual speech-language therapy twice per week for 40 minutes each session.[33] The Parent participated in the IEP meeting and she disagreed with the recommendation because she was concerned that an ICT classroom would be too big for the Student.[34] The Parent expressed concern during the IEP meeting that an ICT classroom is too large for the Student and that the Student “could [not] handle a large general education ICT class, given her significant anxiety.” 35 The Parent was also concerned that the large class would only exacerbate the Student’s attentional and anxiety issues and would not meet her educational needs. [36]
After the IEP meeting, on May 18, 2021, the Parent received a Notice of Recommendation (“Prior Written Notice”).[37] The Prior Written Notice explained that the CSE recommended an educational program for the Student consisting of a 10-month school year, ICT classroom, in a DOE non-specialized public school with individual counseling services and individual speech-language therapy.[38] The Prior Written Notice indicated that the other options considered by the CSE were Special Education Teacher Support Services (“SETSS”) and a 15:1 special class in a community school.[39] However, the CSE rejected these options, explaining that the Student’s “deficiencies in attention, language, and academics warrant additional support of ICT class placement that can afford more support and allow her to be more successful while also allowing interaction with nondisabled peers. General education with SETSS services would not be sufficient to meet [the Student’s] needs. Special class 15:1 is considered too restrictive for [the Student] as indicated by Average cognitive abilities.”[40] In addition, the Prior Written Notice stated the Parent’s concerns regarding the Student’s anxiety and its impact on the Student’s ability to take a test in the proposed ICT educational program. [41]
On the same date, the Parent also received a placement offer for Public School 1.[42] The Parent visited Public School 1 and was informed that an ICT classroom at Public School 1 could have[35] students.[43] The Parent expressed her concerns to the CSE about the proposed program being too large to meet the Student’s educational needs considering the Student’s attentional and anxiety issues.[44] Thereafter, the Parent received a second Prior Written Notice and placement offer for Public School 2 dated August 4, 2021.[45] The second Prior Written Notice contained the same explanation for why an ICT program was selective over SETSS and over a 15:1 special class.[46] The Parent attempted to tour Public School 2 but was not allowed to because she was not vaccinated.[47] The Assistant Principal of Public School 2 did speak with the Parent outside of the school and informed her that ICT classrooms have 34 students and the Parent explained to the Assistant Principal her concerns with such a large classroom for the Student. [48]
The Parent wrote to the CSE twice expressing her concerns with the Student’s IEP and with the two proposed public school placements.[49] First, on August 26, 2021, the Parent wrote to the CSE expressing her concerns about the program and placement and letting the DOE know that she disagreed with the appropriateness of a large ICT classroom for the Student at Public School 1.[50] This letter (“Ten-Day Notice #1”) was sent to the DOE via email on August 30, 2021 and informed the DOE of the Parent’s intent to enroll the Student in the Private School if the CSE’s recommended program continues to be inappropriate. [51]
Subsequently, on September 30, 2021, the Parent wrote a second letter to the CSE (“Ten-Day Notice #2), again expressing the Parent’s concerns with the IEP and placement at Public School 2 after speaking with the Assistant Principal of Public School 2.[52] Ten-Day Notice #2 was sent to the DOE via email on October 17, 2021.[53] Ten-Day Notice # 2 informed the DOE about the Parent’s continued intention to keep the Student enrolled at the Private School and seek tuition funding for the 2021-2022 school year if the DOE failed to address the Parent’s concerns regarding the IEP and the proposed placement.[54] According to the Parent’s testimony, the CSE did not respond. [55]
Commencing on September 1, 2021, the Student attended the Private School for the 2021-2022 school year.[56] The tuition for the Private School for the Student consists of academic and religious instruction, and the Private School charges additional fees for the related services of speech-language therapy and counseling services.[57] The Parent signed the enrollment contract enrolling the Student at the Private School on August 25, 2021 and then, on September 1, 2021, the Parent signed an addendum to the contract including the fees for the related services.[58] The base costs of tuition for the 2021-2022 school year were $52,000.[59] The fee for the related services were $4,800 for speech-language therapy and $2,400 for counseling services.[60] The total amount owed to the Private School is $59,200, including the cost of religious instruction. [61]
The Private School services “students with disabilities, ages 5-18 within the Orthodox Jewish Community. [The Private School] operates self-contained special education classrooms that are co-located within mainstream ‘host’ schools,” providing full-time special education programming led by New York State certified and licensed educational directors.[62] The Private School also provides related services by licensed professionals and the program targets the needs of students with learning disabilities and speech-language deficits.[63] In addition, the program at the Private School serves students with attentional and emotional struggles, and keeps the classrooms in the high school program between 6 and 10 students with each class having one head teacher and one assistant teacher. [64]
For the 2021-2022 school year, the Private School placed the Student in a class of eight students with one head teacher and one assistant teacher (“8:1:1”).[65] The Student’s class followed a Regents curriculum and due to the Student’s academic and language delays, the Student was provided a lot of individualized support and simplified instruction for writing, literature, and history.[66] The Student’s head teacher has a master’s degree in Special Education and is certified in Special Education by New York State.[67] The Student’s schedule for the 2021-2022 school year consisted of Literature, Philosophy through Literature, Writing, American History, Public Speaking Skills, Communication and Speech Skills, Psychology, Life and Social Skills Practice, Social Studies, Bible Studies, Study of Jewish Law, Art History, Job and Vocational Training, Prayer, Anatomy, Education, and Family Planning, Contemporary Global Issues, Physical Education, and Civics and Character Education. [68]
The Private School focused on the Student’s reading and writing goals. At the beginning of the 2021-2022 school year, the Student was reading on a ninth grade level despite being in the twelfth grade.[69] The Private School provided the Student with individualized teaching support, utilizing a modified Regents curriculum to keep the Student focused and help the Student improve with “finding textual evidence to support a thesis, analyzing a text, and figurative language.”[70] The teacher at the Private School used a “Peer Passages Program” which taught the Student to analyze two pieces of literature with an overlapping topic.[71] By the end of the school year, the Student showed “improvements in her reading skills and was on a beginning 11th grade reading level. Specifically, she improved her ability to analyze and compare and contrast different texts. She also had an improved implicit understanding of texts and was able to analyze texts at higher level.”[72] Furthermore, in writing, the Private School focused on working with the Student to improve her essay writing skills. While the Student required “a significant amount of teacher support, scaffolding, and outlining for every essay she wrote as she struggled to remain on task,” the Private School helped the Student become a more sophisticated essay writer with the ability to utilize evidence from texts, which is not a skill the Student had at the beginning of the school year. [73]
In addition, the Private School provided individualized education to the Student in American History due to her language delays and attentional issues.[74] The Student required a lot of repetition and review and direct attention when learning “how to answer document-based questions… and how to make connections between text and themes of history.”[75] The small class size of 8:1:1 also provided benefits to the Student in Philosophy through Literature where the Student learned “to examine philosophical themes and life lessons.”[76] The Student was able to take two mainstream electives, Art History and Psychology and the Student’s teacher in the 8:1:1 cohort used a “preview and review” program to allow the Student to participate in the mainstream electives while also getting the individualized instruction and support she needed. [77]
Moreover, the Student received speech-language therapy and counseling services at the Private School.[78] These services were provided by licensed and certified providers in their respective fields and the services were secular in nature.[79] The Student also received social/emotional skills instruction, adaptive daily living skills and vocational training.[80] She graduated high school with a Regents diploma and was accepted into a seminary program that allowed her to also earn college credits. [81]
It is undisputed that during the 2021-2022 school year, the Private School provided religious instruction to the Student and the Parent is not seeking tuition funding for the portion of religious instruction provided to the Student.[82] For the 2021-2022 school year, religious instruction totaled 25 percent of the Student’s program at the Private School.[83] The total cost of tuition and related services for the 2021-2022 school year was $59,200.[84] This total amount consisted of $52,000 for tuition (academic and religious instruction), $4,800 for speech-language therapy, and $2,400 for counseling services.[85] The Parent’s adjusted gross income for 2022 was $11,000 and thus, the Parent is unable to pay the tuition directly to the Private School. [86]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the Parent’s request that the DOE directly pay the Private School for the cost of the Student’s tuition for the 2021-2022 school year. When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[87] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [88]
A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.[89] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. [90]
Prong 1
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[91] 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.[92] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[93] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [94]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” [95]
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.”[96] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[97] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[98] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[99] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, 100 (2) provide for the utilization of sufficient special education programs or services,[101] and then (3) the IEP must be properly and timely implemented.[102] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [103]
In this case, the Parent alleged that the DOE denied the Student a FAPE for the 2021-2022 school year.[104] The Parent alleged that the CSE did not conduct updated evaluations of the Student prior to the IEP meeting and therefore, the Student’s March 15, 2021 IEP and recommended public school placements where not appropriate for the Student.[105] The Parent alleged that the Student needed a smaller classroom with more individualized instruction and attention than an ICT classroom setting can provide.[106] The Parent alleged she explained her concerns regarding the Student’s attentional issues, language delays, and anxiety during the IEP meeting and that an ICT
100
34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). classroom would be too large to support the Student’s needs, but the CSE recommended an ICT classroom for the Student nonetheless. [107]
As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney indicated on the record in the DOE’s closing statement that the DOE met its burden of showing that the Student was provided a FAPE for the 2021-2022 school year based on the documentary evidence admitted into the hearing record. While the DOE submitted documentary evidence into the hearing record, a review of same offers very little explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE did not “offer a cogent and responsive explanation for their decisions” in creating the March 15, 2021 IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[108] The DOE did not present any witness testimony for the purpose of establishing that it provided the Student a FAPE and because the documentary evidence provided without supporting testimony, could not rebut the Parent’s allegations, I must find that the DOE failed to offer the Student a FAPE for the 2021-2022 school year.
Moreover, regardless of whether the DOE presented any witnesses at the hearing, a review of the documentary evidence admitted into the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2021-2022 school year. The IEP developed for the Student on March 15, 2021 and the public school placements recommended by the CSE were inappropriate for the Student and could not meet the Student’s unique needs. The record shows that the ICT classroom recommended for the Student in the IEP is too large of a classroom setting and cannot provide the Student with the individualized instruction and attention that the Student needs. [109]
Primarily, the IEP itself describes the Student’s symptoms of anxiety but the only aspect of the Student’s program to address this was counseling services once per week. [110] There is no evidence in the hearing record describing how an ICT classroom setting would appropriately assist the Student with her anxiety and help her access a meaningful education. In addition, the IEP notes that the Student’s ADD causes her to have organizational and attentional issues and small class sizes have helped the Student throughout her education to maintain focus.[111] However, by reviewing the IEP itself, it is unclear how an ICT classroom with approximately 34-35 students would provide the Student with the individualized attention and instruction she needed for her senior year of high school. The High School Director at the Private School testified credibly that based on the level of support the Student’s requires even in the 8:1:1 self-contained special education classes provided at the Private School, she does not believe the Student could handle “a large general education ICT” classroom setting.[112] Instead, the ICT classroom setting would heighten the Student’s anxiety and cause her to regress both mentally and academically during her last year of high school. [113]
Moreover, I find that the two Prior Written Notices provided to the Parent explaining the CSE’s recommendations inadequately offer an explanation for why the Student’s needs would be met in the ICT classroom. Both Prior Written Notices contain the same explanation: the Student’s “deficiencies in attention, language, and academics warrant additional support of ICT class placement that can afford more support and allow her to be more successful while also allowing interaction with nondisabled peers. General education with SETSS services would not be sufficient to meet [the Student’s] needs. Special class 15:1 is considered too restrictive for [the Student] as indicated by Average cognitive abilities.”[114] There is no explanation of how the ICT class placement will meet the Student’s needs or why smaller specialized classes with low student to teacher ratios were not considered besides a 15:1 special class. In addition, simply because the Student exhibits average cognitive abilities does not itself preclude the CSE from recommending a small, specialized class for the Student and the Parent voiced her concerns regarding the Student not being able to handle or progress both emotionally and academically in a large classroom setting.
Therefore, I find that both the program and the placements offered to the Student for the 2021-2022 school year were inappropriate because an ICT classroom setting would not provide the Student with the individualized attention and instruction necessary to allow her to access a meaningful education. The evidence in the hearing record clearly shows that the Student required small, specialized classes with significant 1:1 support in order to address her attentional, organizational, and anxiety struggles and language delays. [115]
Prong 2
Next, I must consider whether the Parent’s unilateral placement at the Private School was appropriate for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[116] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[117] Instead, parents must “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.”[118] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[119] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [120]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[121] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement. [122]
The DOE alleged in its closing argument that the Parent’s unilateral placement is not appropriate. I disagree. A private school placement must be “proper under the Act.”[123] This means that the Private School must offer an educational program which meets the student’s special education needs.[124] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress. Primarily, the Private School is appropriate because it provides the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[125] The hearing record shows that the Private School developed a specialized program to meet the Student’s needs. The Private School provided the Student “with significant supports in order to allow her to complete her high school program and to prepare her for post high school. Specifically, [the Student] required tasks be broken down in to smaller, more manageable increments. [The Student] was also taught how to manage a calendar, pre-plan for all of her assignments, and effective study strategies to prevent her from leaving all of her studying to the last minute. In addition, [the Student] was provided with frequent teacher check-ins to make sure she was keeping on top of all of her assignments.” [126]
Furthermore, the record demonstrates that the Private School adapted instruction specifically targeting the needs of students with learning disabilities and speech-language deficits.[127] For the 2021-2022 school year, the Student was placed in a 8:1:1 special education class with significant individualized instruction and support using repetition, scaffolding, visual organizers, preview and review programs, SOAR Study Skills Curriculum and the Social Thinking Curriculum to address the Student’s unique needs.[128] When a teacher or program at a unilateral placement adapts instruction specifically to meet a student’s unique needs, these factors weigh in favor of the appropriateness of a parent’s unilateral placement. [129]
Furthermore, the Private School is appropriate for the Student because it provides the Student with 1:1 support, which helps the Student access a meaningful education. Every student in the Private School “ has an individually tailored program that addresses their unique special education needs.”[130] In this case, the Student worked with the teachers at the Private School to address her language delays, attentional and organizational difficulties and anxiety related to testtaking and deadlines by providing direct 1:1 academic support for the Student.[131] Overall, the record makes clear that there are many examples showing that the Private School is individualizing instruction for the Student, and these examples further support a finding that the Private School is appropriate under Prong 2.
Additionally, the Private School is appropriate because it provides the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs.[132] The evidence shows the Student’s teachers have master’s degrees and are certified in Special Education in New York State.[133] In addition, the Private School staff members participate in ongoing professional development during the school year which includes trainings specific to the needs of students with learning disabilities and their social emotional development.[134] Therefore, I find that the teachers have sufficient training to teach the Student based on her unique needs and learning profile.
In addition, the Private School is appropriate because the Student made progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[135] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.[136] In this case, the Student has made significant progress academically. At the beginning of the 2021-2022 school year, the Student was reading on a ninth grade level despite being in the twelfth grade.[137] The Private School provided the Student with individualized teaching support, utilizing a modified Regents curriculum to keep the Student focused and help the Student improve with “finding textual evidence to support a thesis, analyzing a text, and figurative language.”[138] The teacher at the Private School used a “Peer Passages Program” which taught the Student to analyze two pieces of literature with an overlapping topic.[139] By the end of the school year, the Student showed “improvements in her reading skills and was on a beginning 11th grade reading level. Specifically, she improved her ability to analyze and compare and contrast different texts. She also had an improved implicit understanding of texts and was able to analyze texts at higher level.”[140] Furthermore, in writing, the Private School focused on working with the Student to improve her essay writing skills. While the Student required “a significant amount of teacher support, scaffolding, and outlining for every essay she wrote as she struggled to remain on task,” the Private School helped the Student become a more sophisticated essay writer with the ability to utilize evidence from texts, which is not a skill the Student had at the beginning of the school year. [141]
Furthermore, considering the 2021-2022 school year was the Student’s senior year in high school, I find that the Private School provided the Student with appropriate post-high school vocational training and planning support. The High School Director at the Private School testified that by the end of the school year, the Student learned how to draft a resume, prepare for a job interview, and navigate conflict in the workplace, which were skills the Student did not have at the beginning of the school year.[142] On cross-examination, the High School Director of the Private School clarified that the Private School worked with the Student throughout the entire application process of getting “into a seminary program that works simultaneously with some college credits” as part of exit planning with the Student. [143]
Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”[144] I find the DOE’s arguments concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parent has met her burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[145] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[146] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[147] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[148] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. [149]
In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [150]
I find that the equities favor the Parent’s claims. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent consistently communicated her concerns regarding the Student’s recommended ICT program and public school placements. [151] In addition, the Parent fully participated in the IEP process. The Parent’s cooperation and participation weighs in favor of the Parent’s request for a tuition award under Prong 3 of the Burlington/Carter standard.[152] Here, the Parent participated in the March 15, 2021 IEP meeting. [153] Additionally, the Parent shared her concerns regarding the Student’s anxiety, attentional issues, and language deficits with the CSE, which is noted in the IEP and in the IEP meeting minutes. [154]
Furthermore, the Parent provided the necessary Ten-Day Notice of her concerns with the DOE’s offer of FAPE for the Student for the 2021-2022 school year and her intent to unilaterally place the Student in the Private School.[155] First, on August 26, 2021, the Parent wrote Ten-Day Notice #1, which was sent to the DOE on August 30, 2021.[156] In this notice letter, the Parent explained her concerns regarding the Student’s IEP and the proposed placement at Public School 1.[157] The DOE did not submit evidence at the hearing describing its response to Ten-Day Notice #1, if any. Next, on September 30, 2021, the Parent wrote Ten-Day Notice #2, which was sent to the DOE on October 17, 2021.[158] In this notice letter, the Parent further explained her concerns with the Student’s IEP and the proposed placement at Public School 2 after speaking with the Assistant Principal at Public School 2.[159] The DOE did not submit evidence at the hearing describing its response to the Ten-Day Notice #2, if any.
Nevertheless, because the Private School provides religious/non-secular instruction, a small reduction in the award of tuition is appropriate. The High School Director of the Private School testified that 25 percent of the Student’s instruction was religious in nature.[160] The Student’s class schedule shows periods of prayer services, Study of Jewish Law, and Bible Studies, which are religious in nature.[161] A school district has no duty under the IDEA to provide religious instruction.[162] According to the court in M.L., “federal regulations support the conclusion that states may not use IDEA funds to provide religious and cultural instruction.” [163]
Reviewing the Student’s schedules and the testimony of the High School Director of the Private School, the religious instruction amounts to 585 minutes out of a total schedule of 2,300 minutes, or 25 percent of the school week during the 2021-2022 school year.[164] The cost of tuition for the 2021-2022 school year was $52,000.[165] 25 percent of the cost of tuition is $13,000 and thus, the reimbursable amount of tuition for the school year is $39,000. In addition, the Student’s related services were secular in nature and equal $7,200 ($4,800 for speech-language therapy and $2,400 for counseling services).[166] “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”[167] As discussed above, the Parent signed an enrollment contract, and she signed an addendum to the contract that included itemized additional costs for related services.[168] Adding these costs to the reduced tuition award above brings the total reimbursable amount to $46,200. I find that this cost is reasonable.
Furthermore, direct tuition funding, instead of reimbursement, is relief encompassed by the equitable remedial powers inherent in IDEA.[169] Pursuant to the contract, the Parent is liable for the entire cost of tuition and related services for the 2021-2022 school year.[170] I find that the Parent is entitled to the requested form of payment. Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”[171] Having reviewed the Parent’s 2022 Tax Return and considering the Parent’s testimony regarding her inability to directly pay the Private School directly, I find that the tuition costs and the related services provided by the Private School far exceed the Parent’s income.[172] Equity demands that the DOE fund the Student’s Private School tuition directly in this instance. Overall, after considering the hearing record, I find that the equities support the Parent’s claim for the cost of tuition and related services and order the DOE to pay $46,200 directly to the Private School, which includes a deduction for the religious instruction provided to the Student.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the Parent’s claim for direct tuition funding for the Student’s unilateral placement at the Private School is GRANTED for the 2021-2022 school year. The New York City Department of Education shall directly pay the Private School in the amount of $46,200.00 within 35 days of the date of this Order.
SO ORDERED.
DATED: August 25, 2023
Robin Levin, 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. DPC 3/10/2023 3 pages
B. Parent Letter (Ten-Day Notice #1) 8/26/2021 3 pages
C. Parent Letter (Ten-Day Notice #2) 9/30/2021 3 pages
D. Contract 2021-2022 2 pages
E. Payment Affidavit 7/6/2023 1 page
F. Schedule 2021-2022 1 page
G. Federal 1040 Tax Form 2022 2 pages
H. Program Description Undated 2 pages
PARENT
I. Testimony Affidavit 7/14/2023 2 pages
J. School Testimony Affidavit 7/12/2023 6 pages
K. Prior Written Notice 5/18/2021 2 pages
L. School Location Letter 5/18/2021 1 page
DOE EXHIBITS
1. March 2021 Individualized Education Program 27 pages DOE
(IEP)
March 2021 Individualized Education Program
2. 3/15/2021 1 (IEP) Meeting Attendance Page
3. IEP Meeting Minutes 3/15/2021 5
4. Prior Written Notice 8/4/2021 4
5. School Location Letter 8/4/2021 2
6. Classroom Observation 2/5/2020 1
7. Parent Vocational Interview 3/5/2021 1
8. Student Vocational Interview 3/5/2021 1
9. Notice of IEP Transition Planning Meeting 2/23/2021 1 February 10. [REDACTED] Grade Progress Report 4 2021
11. Due Process Complaint 3/10/2023 3
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.
[2] Ex. 1; Ex. A; Ex. 11.
[3] Ex. A; Ex. 11.
[4] Id.
[5] Id.
[6] Id.
[7] Id; Ex. 1-19.
[8] Ex. L; Ex. 5.
[9] Ex. A; Ex. 11.
[10] Id.
[11] Id.
[12] Ex. A; Ex. B; Ex. C; Ex. 11.
[13] PHC 4/13/2023 Tr. 8-10.
[14] SC 5/5/2023 Tr. 5.
[15] SC 5/23/2023 Tr. 5; See Order of Extension 1.
[16] SC 6/15/2023 Tr. 4-5; See Order of Extension 2.
[17] DPH Tr. 7-8.
[18] DPH Tr. 43.
[19] DPH Tr. 9-10.
[20] DPH Tr. 14-28, 29-42.
[21] DPH Tr. 43-56; See Order of Extension 3.
[22] DPH Tr. 43-47.
[23] Id.
[24] DPH Tr. 47-55.
[25] Ex. J-2; Ex. I-1.
[26] Id.
[27] Ex. 1-1.
[28] Ex. J-2; Ex. I-1.
[29] Id.
[30] Ex. 3-1.
[31] Ex. J-2.
[32] Ex. 1.
[33] Ex. 1-19.
[34] Ex. 3-5.
[35] Id; Ex. I-1.
[36] Ex. I-1.
[37] Ex. L-1.
[38] Ex. K-1.
[39] Ex. K-2.
[40] Id.
[41] Id.
[42] Ex. L-1.
[43] Ex. I-1.
[44] Ex. I-2; Ex. B-1.
[45] Ex. 5-1.
[46] Ex. 4; Ex. 5.
[47] Ex. C-1.
[48] Id.
[49] Ex. B; Ex. C.
[50] Ex. B.
[51] Id.
[52] Ex. C.
[53] Ex. C-3.
[54] Ex. C-2.
[55] Ex. I-2.
[56] Ex. D; Ex. E.
[57] Ex. D-2.
[58] Ex. D.
[59] Id.
[60] Id.
[61] Ex. E-1.
[62] Ex. H-1.
[63] Id.
[64] Id.
[65] Ex. J-2.
[66] Id.
[67] Ex. J-3.
[68] Ex. F-1.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Ex. J-4.
[75] Id.
[76] Id.
[77] Id.
[78] Ex. J-5.
[79] Id.
[80] Ex. J-4.
[81] Ex. I; Ex. J; DPH Tr. 31-34.
[82] DPH Tr. 55.
[83] Ex. J-5.
[84] Ex. D-2.
[85] Id.
[86] Ex. G.
[87] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[88] 20 U.S.C. § 1415(b)(6)(A).
[89] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[90] NY Educ. Law § 4404(1)(c)).
[91] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[92] 34 C.F.R. §300.13.
[93] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[94] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[95] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[96] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[97] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[98] Endrew F.,137 S.Ct. 988, 999.
[99] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[101] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[102] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[103] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[104] Ex. A; Ex. 11.
[105] Id.
[106] Ex. A; Ex. B; Ex. C; Ex. 11.
[107] Ex. A; Ex. B; Ex. C; Ex. K; Ex. I.
[108] Endrew F., 137 S.Ct. at 1002.
[109] Ex. 1; Ex. 3; Ex. I; Ex. J.
[110] Ex. 1-4.
[111] Ex. 1-3.
[112] Ex. J-5.
[113] Id.
[114] Ex. K-2; Ex. 4-2.
[115] Ex. A; Ex. B; Ex. C; Ex. I; Ex. J; Ex. 10; Ex. 11.
[116] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[117] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[118] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[119] Gagliardo, 489 F.3d at 112.
[120] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[121] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[122] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[123] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[124] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[125] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[126] Ex. J-2.
[127] Ex. H-1.
[128] Ex. J.
[129] Frank G., 459 F.3d at 365-66.
[130] Ex. J-1.
[131] Ex. I; Ex. J.
[132] Frank G., 459 F.3d at 364.
[133] Ex. J.
[134] Ex. J-1.
[135] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[136] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[137] Id.
[138] Id.
[139] Id.
[140] Id.
[141] Id.
[142] Ex. J-5.
[143] DPH Tr. 34.
[144] Frank G., 459 F.3d at 364.
[145] See Carter, 510 U.S. at 16.
[146] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[147] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[148] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[149] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[150] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[151] Ex. A; Ex. B; Ex. C; Ex. 11.
[152] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[153] Ex. 1; Ex. 2; Ex. 3.
[154] Ex 1; Ex. 3.
[155] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B; Ex. C.
[156] Ex. B.
[157] Id.
[158] Ex. C.
[159] Id.
[160] Ex. J-5.
[161] Ex. F-1.
[162] M. L. v. Smith, 867 F.3d 487, 499 (4th Cir. 2017).
[163] Id citing 34 C.F.R. § 76.532(a)(1) (funding regulation prohibiting a state from “us[ing] its grant or subgrant to pay for ... [r]eligious worship, instruction, or proselytization”).
[164] Ex. J-5; Ex. F-1.
[165] Ex. D.
[166] Ex. D-2; Ex. J-5.
[167] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
[168] Ex. D.
[169] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[170] Ex. D.
[171] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)
[172] Ex. G; Ex. I-2.