New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597775 – NYC: 246992

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] [REDACTED]

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: March 27, 2023

Date(s) of Hearing: April 28, 2023

May 25, 2023

June 8, 2023

June 23, 2023

Actual Record Closed Date: July 6, 2023

Date of Decision: July 19, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 28, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 25, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

June 8, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

June 23, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Parent Student

[REDACTED] [REDACTED], Parent Student

[REDACTED] [REDACTED], School Administrator, [REDACTED] [REDACTED] School

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 March 27, 2023. Ex. A.^[1] On March 27, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement for tuition for [REDACTED]’s placement at The [REDACTED] [REDACTED] School (“[REDACTED]”) and transportation for the 2022-2023 school year. Exs. A, B.

I conducted a prehearing conference on April 28, 2023. Counsel for the [REDACTED]’s parents clarified the relief requested; procedural matters were discussed; and a hearing date was scheduled. On the hearing date, May 25, no one appeared on behalf of the Department, and the hearing was continued to June 8. On June 8, the Department waived its opening statement, did not offer documents in evidence, and rested its case without calling any witnesses to testify. Tr. 23-24. Parent presented an opening statement. Parent’s Exhibits A through F were admitted in evidence. Pendency was addressed, and counsel were informed that if pendency was not resolved, I would be issuing a pendency order. An Order on Pendency was issued on June 12. Ex. K.

On June 23, [REDACTED]’s father and [REDACTED]’s school administrator testified. Parent’s Exhibits G through M were admitted in evidence.

The record was closed on July 6, 2023, upon the Hearing Officer’s receipt and review of the transcript of the last day of the hearing.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on June 8 and June 23, 2023. The reasons for granting the extensions are set forth in the Orders.

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. § 300 et seq., and New York State Education Law § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200 et seq.

Parents consented to the hearing being conducted via videoconference and to the electronic transmission of this Findings of Fact and Decision.

ISSUES

[REDACTED]’s parents request reimbursement for tuition they paid to [REDACTED] for [REDACTED]’s enrollment at [REDACTED] for the 2022-2023 school year. The Department did not present testimony or documentary evidence to defend its program recommendations for [REDACTED]. The issues to be resolved are:

1. Was [REDACTED] an appropriate placement for [REDACTED] for the 2022-2023 school year?

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

FINDINGS OF FACT

1. [REDACTED] is a [REDACTED]-year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as other health impairment. Ex. A at 1-2.

2. [REDACTED] has been diagnosed with REACTED (“[REDACTED]”), [REDACTED], [REDACTED] (also known as [REDACTED]), a [REDACTED], [REDACTED] (specifically [REDACTED]), and a [REDACTED]. Ex. D at 18-20; see also Ex. M at 1.

3. [REDACTED] attended [REDACTED] for the 2022-2023 school year. Ex. F.

4. [REDACTED] is a private school for students from three through fourteen years of age for children who experience learning disabilities. There are approximately 380 students enrolled in the school. Exs. J, L at 2-3.

5. As a young child, [REDACTED] experienced language delays, attention difficulties, and sensory issues. Ex. D at 2-3. He received speech therapy and occupational therapy during his preschool years. Ex. D at 1, 2, 4; Tr. 54-55.

6. [REDACTED] attended [REDACTED], a nonpublic general education school, for kindergarten through fifth grade, participating in general education classes and receiving small group remediation in reading starting in first grade. Ex. D at 10, 18; Ex. M at 2.

7. He experienced difficulties at the school with reading, math, attention, remaining on task, and sensory issues. Exs. D at 4-5, H.

8. [REDACTED]’s parents secured a neuropsychological evaluation of Jonathan in summer of 2020. Ex. D.

9. [REDACTED]’s WISC-V scores were in the average range: in the high average range on the visual spatial index and in the average range on verbal comprehension, fluid reasoning, working memory, and processing speed indexes. His individual subtest scores ranged from the 16th percentile ((a)picture span, which is a nonverbal working memory task, and (b) coding, which is a task that required graphomotor output, attention to detail, and fast processing speed) to the 84th percentile (visual puzzles). Ex. D at 8-9.

10. Testing relating to academics revealed weaknesses in reading fluency and reading comprehension (scoring in the 25th percentile). [REDACTED] was almost two years below grade level in reading accuracy and more than two years below grade level on two different measures of reading comprehension; two years below grade level in essay writing; and performed in the low average ranges on measures of math fluency. Ex. D at 11.

11. Neuropsychological testing revealed “mild language comprehension weaknesses,” and weaknesses in visual motor integration and handwriting and some aspects of executive functioning. Testing was conducted while [REDACTED] was taking prescribed medication for [REDACTED], and, with medication, his “sustained attention was fair to good.” Ex. D at 13.

12. Psychological testing indicated that [REDACTED] experienced anxiety and physiological symptoms “often associated” with anxiety, such as headaches and stomach aches. Ex. D at 16-17.

13. The neuropsychologist recommended that [REDACTED] receive academic supports and accommodations both in and outside of school to address his reading and writing challenges. The evaluator included a detailed list of such supports. Ex. D at 21-23.

14. The neuropsychologist also recommended that [REDACTED]’s parents locate and apply for [REDACTED]’s admission to special education schools for children with learning disabilities. Ex. D at 23.

15. [REDACTED] was enrolled in [REDACTED] in September 2021 for the 2021-2022 school year. Ex. M at 2.

16. The Department convened an IEP meeting for [REDACTED] in April 2022. [REDACTED]’s father attended this meeting and had previously provided the neuropsychological evaluation to the CSE. Ex. M at 3-4.

17. The CSE recommended that [REDACTED] attend an ICT program. Ex. M at 3.

18. [REDACTED]’s parents, through counsel, submitted a “ten-day” notice letter to the Department on August 22, 2023. Ex. B. They outlined their objections to the April 2022 IEP and informed the Department that they were placing [REDACTED] at [REDACTED] for the 2022-2023 school year and would be seeking funding from the Department. Ex. B.

19. [REDACTED] provides students with small classes (seven to eleven students) in which students are grouped by age and learning needs; reading and math groups consist of two to nine students and are grouped by ability. Ex. L at 4-5.

20. Classes are taught by head teachers; some classes also include an assistant teacher and/or a specialist, for example, a push-in math specialist or a related services provider. Ex. L at 4-5.

21. There were eight students in [REDACTED]’s reading, writing, and math classes (broken down into smaller groups to work similar goals and needs), history with nine students, and science with eleven students and two teachers. Ex. L at 7.

22. [REDACTED]’s homeroom of seven students was taught be a head teacher with push-in services from a speech and language therapist for individual support and group lessons and from the school psychologist for support for students’ self-regulation, building frustration tolerance, and managing conflict. Ex. L at 7-8.

23. In speech therapy, [REDACTED] worked on developing comprehension skills, understanding complex and inferential language, improving and organizing written work by breaking down long term assignments, and using planning materials and graphic organizers. Ex. L at 8.

24. Reading instruction was multi-sensory, utilizing Orton-Gillingham for decoding and explicit instruction for fluency and accuracy, which supports comprehension. Ex. L at 5-6.

Reading comprehension is taught through direct instruction on breaking down texts for main ideas and relevant information, annotating the text, tracking understanding throughout the text, and utilizing specific “signposts” in the text. Ex. L at 5-6.

25. [REDACTED] developed detailed learning goals for [REDACTED] for the 2022-2023 school year. Ex. L at 8-9. [REDACTED]’s goals focused on task initiation and perseverance, self-advocacy skills, applying decoding skills, reading accuracy, spelling accuracy, using text to support assertions in written work and in class discussions, completing accurate and thorough work, organizing his writing, using graphic organizers, increasing sentence complexity in written work, editing and revising written work, developing math calculation and algebra skills, maintaining attention, self-monitoring, taking notes, responding to reading comprehension questions, preparing for class, organizing his materials, following directions, and understanding and utilizing feedback from teachers. Exs. H, L at 9-10.

26. [REDACTED] needs, and his teachers at [REDACTED] provided, individualized instruction, supports to maintain attention and focus, supports for organization, supports for receptive and expressive language, and strategies, interventions and supports for selfregulation and executive functioning. Exs. H, L, M at 7; Tr. 51.

27. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year across all areas of his goals (Tr. 46-50, 57-58; Exs. H, M, L ): a. Initiating and persevering through class work; b. Improved reading fluency, especially reading with expression; c. Improved reading comprehension; d. Processing and answering comprehension questions and making logical inferences; e. Improved spelling; f. Improved class participation; g. Generating details for a topic sentence and developing a topic sentence; h. Outlining and writing paragraphs; i. Applying punctuation rules; j. Advocating for his needs; k. Accepting feedback from his teachers; and l. Developing calculation and algebra skills and checking his calculations.

28. [REDACTED]’s parents entered into an enrollment contract with [REDACTED] for the 2022-2023 school year. The contract obligates [REDACTED]’s mother to pay the entirety of the tuition amount of $75,730.00. Exs. G, M at 4.

29. [REDACTED]’s parents have paid the entire amount of the 2022-2023 school year tuition. Exs. E, M at 4.

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 NYCRR 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).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190; see also L.O., 822 F.3d at 123-124.

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 the instant proceeding, the Department did not avail itself of its opportunity to present testimony and evidence to demonstrate that it offered [REDACTED] a FAPE. As a result, 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 2022-2023 school year? [REDACTED]’ parents bear 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 his specific and identified special education needs were addressed. In particular, [REDACTED] addressed [REDACTED]’s needs for small classes in which he received direct and individualized instruction as well as teacher supports and related services that he required in order to address his language-based, executive functioning and attentional challenges so he 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 19 through 26, above. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year. See paragraph 27, 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 2022-2023 school year. As a result, [REDACTED]’s parents prevail 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 parents’ claims, the evidence establishes that [REDACTED]’s parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel about their 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 parents impeded the Department in offering [REDACTED] a FAPE. In fact, the opposite is true. Equitable considerations thus favor the award of relief to [REDACTED]’s parents. As a result, [REDACTED]’s parents prevail with respect to the third Burlington/Carter criterion.

Since the school year has concluded, the claim for transportation is now moot, and will not be considered.

ORDER

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

The Department of Education shall reimburse [REDACTED]’s parents for [REDACTED]’s placement at the [REDACTED] [REDACTED] School for the 2022-2023 school year, in an amount totaling $75,730.00. The amount of reimbursement for the 2022-2023 school year shall not exceed $75,730.00.

SO ORDERED.

DATED: July 19, 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 EXHIBITS

A. Exh. # Description Date Pages Request for Impartial Hearing 3/26/23 5 pages

B. Ten Day Notice 8/22/23 3 pages

C. FOFD 3/26/23 29 pages

D. Neuropsychological 8/14/20 33 pages

E. Tuition Affidavit 1/26/23 1 page

F. Student attendance 22-23 1 page

G. Tuition Contract 1/30/22 8 pages

H. Progress Report, Midyear 22-23 12 pages

I. Student Schedule 22-23 1 page

J. Program Description UNDATED 2 pages

K. Pendency Order 6/12/23 6 pages

L. Affidavit of Direct testimony, [REDACTED] 6/22/23 11 pages

M. Affidavit of Direct testimony, Parent 6/22/23 4 pages

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.”