New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 248626

FINDINGS OF FACT AND DECISION

Case Number: 248626

Student’s Name: [REDACTED] [REDACTED] [REDACTED]

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: May 30, 2023

Date(s) of Hearing: June 30, 2023

July 20, 2023

Actual Record Closed Date: July 28, 2023

Date of Decision: July 29, 2023

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 30, 2023

[REDACTED] [REDACTED], Esq. — Student

None — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON July 20, 2023

[REDACTED] [REDACTED], Esq. — Student

[REDACTED] [REDACTED] — Parents

[REDACTED] [REDACTED], Curriculum Supervisor of [REDACTED] — Student

None — DOE

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 May 30, 2023. Ex. A.^[1] On May 30, 2023, I was appointed by the New York City Department of Education to hear this matter. Parent challenges the Department’s failure to offer a free appropriate public education (“FAPE”) to [REDACTED] seeks reimbursement or direct funding for tuition for [REDACTED]’s placement at the [REDACTED] program at [REDACTED] of [REDACTED] (“[REDACTED]”) for the 2022-2023 school year. Ex. A.

I conducted a prehearing conference on June 3, 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 2022-2023 school year. Procedural issues were discussed, and the hearing was scheduled for July 20.

On July 20, counsel for [REDACTED]’s parent appeared; no one appeared on behalf of the Department. Parent’s counsel presented opening and closing statements. Parent’s Exhibits A through J were admitted in evidence. [REDACTED]’s parent and the curriculum supervisor of [REDACTED] testified.

There were no extensions of the compliance date. The record closed on July 28, upon the Hearing Officer’s receipt and review of the transcript of the 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.

ISSUES

[REDACTED]’s parent requests funding for tuition and related services costs owed to [REDACTED] for [REDACTED]’s enrollment at [REDACTED] for the 2022-2023 school year. The Department did not appear at the hearing and did not avail itself of its opportunity to defend the special education program that it offered to [REDACTED] for the 2022-2023 school year. The issues to be resolved are:

1. Was [REDACTED] an appropriate unilateral parental 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 an [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; Ex. I at ⁋ 2.

2. [REDACTED] is diagnosed with [REDACTED] and [REDACTED]. Ex. I ⁋ 3; 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. I at ⁋⁋ 3-4; Ex. J at ⁋ 15-16; Tr. 25-26. She is functioning below grade level in all areas of academics. Ex. I at ⁋ 3; Tr. 25.

4. As a preschool student, [REDACTED] received CPSE services, including SEIT and related services. Ex. I at ⁋ 4.

5. [REDACTED] entered [REDACTED] in September 2019. Ex. I at ⁋ 4.

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

7. The CSE convened an IEP meeting for [REDACTED] on March 3, 2022; [REDACTED]’s mother attended this meeting. Ex. I at ⁋⁋ 5-6..

8. The CSE recommended that [REDACTED] attend a 12:1:1 special education class in a community school. Ex. I at ⁋ 5. At the meeting, [REDACTED]’s mother expressed her concerns that such a class would be too large and would provide insufficient adult support for [REDACTED]. Ex. I at ⁋ 6.

9. [REDACTED]’s mother submitted a “ten-day” notice letter to the Department on September 2, 2022. Ex. B. In the letter, [REDACTED]’s mother informed the Department of her concerns with the Department’s program recommendation for [REDACTED], and that she would be placing [REDACTED] at [REDACTED] and seeking tuition funding from the Department. Ex. B.

10. [REDACTED] attended [REDACTED]’s program at [REDACTED] of [REDACTED] for the entirety of the 2022-2023 10-month school year. Ex. I at ⁋ 10; Ex. J at ⁋ 11.

11. [REDACTED]’s class included ten students with one teacher, one full-time assistant, and one part-time assistant for extra support during “core subjects.” Ex. J at ⁋⁋ 18-19; Tr. 26.

12. [REDACTED] needed, and [REDACTED] staff provided, a small special education class setting, teacher support for attention and focus, 1:1 instruction (for approximately one hour per day for reading decoding, reading comprehension pre-teaching, and writing), 2:1 instruction for math, and with material broken down and provided to her in “small pieces.”

Ex. J at ⁋⁋ 15, 17, 21; Tr. 26-29.

13. [REDACTED] staff also supported [REDACTED] in developing appropriate social skills with her peers and in developing impulse control. Ex. J at ⁋ 28.

14. [REDACTED]’s school schedule included prayers, Bible studies, calendar and morning routine, [REDACTED] language, general knowledge, homework routine,^[2] lunch and recess, phonics, reading, reading comprehension, reading groups, writing, math, science.

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. F; Tr. 29-32.

15. “Homework routine” assists students who, like [REDACTED], struggle with organization and language. During this class period, teachers describe homework assignments and expectations, and the materials to bring home to complete those assignments, in order for students to complete homework, develop study skills and be prepared for the next day of school. Tr. 30-31.

16. Religious instruction and celebration constituted approximately 20 percent of the school week. Ex. F; Tr. 33-35.

17. In reading, [REDACTED] worked on decoding and comprehension skills, two areas of significant weakness. Instruction focused on phonemic awareness, word retrieval, reading accuracy, applying comprehension strategies, inferential comprehension, answering questions, and participating in read alouds. Ex. J at ⁋ 22.

18. In writing, [REDACTED] worked on organizing her writing, using graphic organizers, writing paragraphs, and adding detail to her writing. Ex. J at ⁋ 24.

19. In math, [REDACTED] continued to work on basic computation skills, including addition and subtraction of three digit numbers with regrouping, multiplication, fractions, and word problems. Ex. J at ⁋ 25.

20. In science and history, [REDACTED] learned content material and developed her note taking skills and study strategies. Ex. J at ⁋ 26.

21. Through the related services of speech, OT, and counseling, [REDACTED] related services providers implemented goals for [REDACTED] in the areas of following directions, conversational skills, social skills, attention, fine and gross motor skills, sensory processing, social communication skills, and perspective taking. Ex. J at ⁋⁋ 29-32.

22. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year (Ex. H; Ex. I at ⁋ 11; Ex. J at ⁋⁋ 22-28, 30-32, 36-37; Tr. 35, 38): a. Improved reading comprehension as demonstrated by moving from a mid-second grade level to a beginning third grade level during the school year; b. Improved writing skills, including organizing her writing, using graphic organizers, and writing an eight sentence paragraph with added detail; c. Improved her math skills, including addition and subtraction with regrouping, multiplication, and fractions. She moved from an end of second grade level to a mid third grade level during the school year; d. Improved her social skills and was able to interact appropriately with her peers; e. Made progress in receptive and expressive language skills, following directions, and answering questions; and f. Improved her fine and gross motor skills, focus, and sensory regulation.

23. [REDACTED]’s mother signed an enrollment contract for [REDACTED]’s attendance at [REDACTED] for the 2022-2023 school year. Ex. C. [REDACTED]’s parents are obligated to pay the tuition amount of $72,000.00 and the related services costs of $18,900.00, for a total of $90,900.00, set forth in the contract.. Ex. C.

24. [REDACTED]’s parents have not paid the [REDACTED] tuition and were, at the time of the hearing, financially unable to pay the tuition. Exs. D, E; Tr. 37-38.

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 avail itself of its opportunity to present testimony or documentary evidence to defend its offer of a FAPE to [REDACTED] for the 2022-2023 school year. Since the Department did not offer any testimony or documentary evidence to demonstrate that the program it had developed for [REDACTED] for the 2022-2023 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 2022-2023 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 significant 1:1 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 11 through 21, above. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year. See paragraph 22, 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 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 2022-2023 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 24, 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 2022-2023 school year. The amount of funding for the 2022-2023 ten-month school year shall consist of 80 percent of the total September 2022 through June 2023 program costs, in an amount not to exceed $ 72,720.00.

SO ORDERED.

DATED: July 29, 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

A. DPC 5/30/23 (3 pages)

B. Ten Day Letter 8/30/22 (2 pages)

C. Contract 22-23 (2 pages)

D. Payment Affidavit 6/25/23 (1 page)

E. Federal 1040 Form 2021 (2 pages)

F. Schedule 22-23 (1 page)

G. Program Description N/A (2 pages)

H. Progress Report 6/2023 (3 pages)

I. Parent Testimony Affidavit 7/17/23 (3 pages)

J. School Testimony Affidavit 7/13/23 (5 pages)

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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.”

[2] Referred to in the transcript as “homeroom routine.” Tr. 30.