Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 254356

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Roberta Wolf

Date of Filing: 09/05/2023

Hearing Requested by: Parent

Date of Hearing: 10/26/2023

Record Close Date: 11/19/2023

Date of Decision: 11/19/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 26, 2023:

For the Department of Education:

None

For the Student:

[REDACTED], Representative

[REDACTED], Parent Student

BACKGROUND

On September 5, 2023, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 254356, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). ^[1]

In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2023-2024 school year when its Committee on Special Education (CSE) created a substantively inappropriate and procedurally non-compliant Individualized Education Program (IEP). The Parent claims inter alia that the CSE failed to: evaluate the Student in all areas of his suspected disability; adequately describe his present levels of performance; develop meaningful and appropriate goals; and place the Student in the least restrictive environment. Additionally, DOE never provided a placement for the Student.

The Parent thereafter continued the Student’s unilateral placement in the Private School and she now seeks direct tuition funding for the secular portion of instruction for the 2023-2024 school year.

I was appointed impartial hearing officer (IHO) on September 5, 2023; conducted a prehearing conference on October 10, 2023; and adjudicated a due process hearing on October 26, 2023. Although DOE accepted the meeting invitation for the prehearing conference, DOE did not appear. I emailed the parties my prehearing conference summary and order and DOE confirmed receipt of the order.^[2] DOE explained that a scheduling issue prevented her appearance at the conference, but that DOE would confer with Parent’s counsel about the case.^[3] The order contained the deadlines for disclosures for the due process hearing, the date and time of the due process hearing, procedures for requesting adjournments, and other matters. DOE received a copy of the Parent’s timely disclosures and confirmed receipt of those disclosures.^[4] However, DOE did not submit any disclosures. Additionally, DOE did not appear for the due process hearing. While waiting for DOE to join the hearing, a review of the meeting invitation showed that DOE declined the invitation.^[5] Because DOE was aware of the hearing, did not request an adjournment, and declined the meeting invitation, the hearing proceeded without DOE.

The Parent’s disclosures consisted of testimony (affidavit form) and documentary evidence, a list of which is appended to this order.

FINDINGS OF FACT

The Student is [REDACTED] years old^[6] and his eligibility for special education supports and services is not in dispute. He has been diagnosed with Down Syndrome and exhibits global developmental delays.^[7] He shows significant impairment in his level of intellectual functioning, adaptive behavior, and his expected rate of progress in acquiring skills.^[8] His exhibits delays with his receptive and expressive language skills and his speech is mumbled.^[9] He requires substantial one-to-one support to make academic progress. ^[10]

On March 13, 2023, the CSE created an IEP for the Student that mandated a 12:1:1 Special Class with speech-language therapy (SLT), physical therapy (PT), and occupational therapy (OT). 11 The CSE ignored the Parent’s concerns about an inappropriate staffing ratio, a lack of one-to-one instruction, and the overly restrictive environment of a 12:1:1 special class. 12 Additionally, DOE never provided the Parent with a placement to implement the IEP. 13 On June 15, 2023, the Parent notified the CSE that unless it cured the substantive and procedural defects in the IEP, the Parent would continue the Student’s unilateral placement in the Private School and seek public funding for tuition. 14 DOE did not substantively respond to the Parent’s notice. 15 The Private School provides special education to students with intellectual disabilities, the majority of whom have Down Syndrome. 16 To create and implement an individualized plan for the Student, the Principal ran a battery of tests (the Brigance Comprehensive Inventory of Basic Skills) to determine the Student’s baseline academic abilities. 17 The Principal conducts those tests three times each year to modify the Student’s academic curriculum and goals accordingly. 18 The Student follows the Palmtree Reader curriculum, which covers all areas of reading and introduces basic concepts of English grammar for bilingual students like the Student. 19 For math, the Private School administered a curriculum with two programs called Touch Money and Touch Math, which provides a concrete approach that engages the Student auditorily, visually, and kinesthetically.^[20] Similarly, the writing curriculum uses a multisensory approach that focuses on practical skills such as writing the Student’s name, address, and phone

11 Ex. P4. 12 Ex. P. 13 Id. 14 Ex. B2. 15 Ex. C. 16 Ex. O2. 17 Ex. O3. 18 Id. 19 G, O. number; learning upper and lowercase letters; and improving overall legibility.^[21] The Student’s classroom provides a student-to-teacher ratio of 12:3.^[22] The Principal holds Master’s Degrees in General Education and Special Education, state certifications in Special Education grades 1 through 6, and additional credentials in bilingual-Yiddish instruction.^[23] The Private School also provides the Student with onsite SLT, PT, and OT, which in part address delays related to his diagnosis of Down Syndrome.^[24] The Private School dedicates 45 minutes per day to prayer. ^[25]

ANALYSIS

The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.^[26] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.^[27] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.^[28] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.^[29] DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim. ^[30]

Prong 1 – FAPE Denied to the Student

A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” ^[31] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.^[32] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.” ^[33]

In this case, as to the Burlington/Carter standard, DOE presented no evidence and did not defend that it provided the Student with a FAPE. Therefore, I am constrained to find that DOE failed to offer the Student a FAPE. Moreover, a review of the record herein (e.g., no evidence, such as a copy of the IEP, no witness testimony to explain it, no evidence of placement) supports the conclusion that DOE failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 2023-2024 school year.

Prong 2 – Appropriateness of Unilateral Placement Established

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” ^[34]

The Parent provided the Student’s class schedule, progress reports, and goals (for academic, behavioral, and therapies); the Parent’s signed enrollment contract; a program description of the Private School and the testimony of the Principal. The Private School provides full-time special education for children with intellectual disabilities and focuses primarily on those with Down Syndrome, as the Student exhibits. The Private School provides one-to-one instruction administered bilingually in Yiddish, in small classes taught by qualified instructors. The curriculum is specifically tailored to the Student based on his level of intellectual functioning with the goal of fostering independence. The Private School regularly modifies the Student’s curriculum to respond to his changing needs. The related services of SLT, PT, and OT are administered on-site and focus on delays related to the Student’s diagnosis of Down Syndrome.

I find the Parent’s evidence to be comprehensive, consistent, and credible. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.

Prong 3 – Equitable Considerations Favor the Parent

Although the hearing officer may deny the Parent tuition reimbursement for behaving unreasonably,^[35] no facts support such a finding in this case. No evidence shows that the Parent here behaved unreasonably or failed to make the Student available for an evaluation. Moreover, the Parent acknowledged that any tuition funding should not cover the religious-instruction component (prayers) offered at the Private School.

The Parent’s enrollment contract shows that the Private School charged $96,000 for the 12-month, 2023-2024 school year^[36] for which the Parent seeks funding, less 10 percent for religious instruction ($9,600) for a net of $86,400.^[37] I find that the equities favor the Parent and warrant tuition funding for the secular portion of the Student’s instruction.

ORDER

Based upon the above Findings of Fact, it is hereby:

1. ORDERED that DOE shall fund the tuition owing directly to the Private School for the Student’s placement during the 12-month 2023-2024 school year in a sum not to exceed $86,400 (Eighty-Six Thousand Four Hundred Dollars).

SO ORDERED.

DATED: November 19, 2023

/s/ Roberta Wolf, Esq.

Impartial Hearing Officer

Roberta Wolf

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.

DISTRICT EVIDENCE

None

PARENT EVIDENCE

A. Impartial Hearing Request 9/15/23 5 pages

B. Notice of Unilateral Placement 6/15/23 2 pages

C. Response to Ten-Day Notice 6/23/23 1 page

D. Enrollment Contract 6/13/23 3 pages

E. Payment Affidavit 10/1/23 1 page

F. U.S. Tax Return – Form 1040 10/17/23 2019 3 pages

G. [REDACTED] Curriculum 2023-2024 15 pages

H. Daily Schedule 2023-2024 1 page

I. Therapy Schedule 2023-2024 1 page

J. Skills Assessment 6/12/23 8 pages

K. Occupational Therapy Progress Notes 3/3/23 3 pages

L. Physical Therapy Progress Notes 1/2/22 2 pages

M. Speech/Language Therapy Progress Notes 1/26/23 2 pages

N. Attendance Record 10/1/23 1 page

O. Affidavit in Lieu of Direct Testimony – [REDACTED] 10/18/23 9 pages

P. Affidavit in Lieu of Direct Testimony – [REDACTED] 10/18/23 4 pages

Footnotes

[1] Ex. A.

[2] IHO Ex. I.

[3] Id.

[4] Tr. p. 21 lines 9-16.

[5] Tr. p. 22 lines 22-25; p. 23 lines 1-8.

[6] Ex. P.

[7] Ex. O.

[8] Id.

[9] Id.

[10] Ex. O3.

[20] Id.

[21] Id.

[22] Ex. O.

[23] Id.

[24] Ex. I, K. L, O, P.

[25] Ex. H.

[26] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[27] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

[28] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

[29] 20 U.S.C. § 1415(f)(3)(E)(i).

[30] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).

[31] Rowley, 458 U.S. at 203.

[32] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

[33] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[34] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).

[35] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).

[36] Ex. E.

[37] Tr. p. 32 lines 13-19.