NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 252073
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 03/28/2023
Hearing Requested by: Parent
Date of Hearing: 10/17/2023
Record Close Date: 11/22/2023
Date of Decision: 11/22/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 17, 2023:
For the Department of Education:
[REDACTED], Representative
[REDACTED], Special Education Teacher
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
[REDACTED], Associate Principal at the Private School
BACKGROUND
On March 28, 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. 252073, 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 2021-2022 and 2022-2023 school years when, inter alia, its Committee on Special Education (CSE) created substantively inappropriate and procedurally invalid Individualized Education Programs (IEPs). The Parent claims primarily that the CSE provided the Student with an insufficient student-to-teacher classroom ratio, and that it could not implement the IEPs in any event. The Parent thereafter unilaterally placed the Student in the Private School and now seeks a combination of direct tuition funding and reimbursement for tuition (the secular portion only) and the related services of speech-language therapy (SLT) and occupational therapy (OT) provided at the Private School.
I was appointed impartial hearing officer (IHO) on July 27, 2023; conducted prehearing conferences on August [1], 2023, September 13, 2023, and September 20, 2023; and adjudicated a due process hearing on October 17, 2023.[2] DOE did not hold a resolution meeting in answer to either of the filed DPCs nor did it file due process responses (DPRs). At the hearing, both parties presented testimonial (live and affidavit form) and documentary evidence, a list of which is appended to this order. DOE did not defend that it provided the Student with a FAPE for the 2021-2022 school year.
FINDINGS OF FACT
The Student is now [REDACTED] years old[3] and his eligibility for special education supports and services is not in dispute. He has been diagnosed with attentive deficit hyperactivity disorder (ADHD), and he exhibits delays in the areas of speech and language, reading comprehension, executive functioning, visual perception, and motor coordination.[4] He takes medication to treat ADHD symptoms, such as distractibility, procrastination, and lack of focus and concentration.[5] He is highly unfocused and needs substantial redirection, particularly with multi-step tasks and problems.[6] He reads at a fourth-grade level.[7] Academically, his lack of focus is his biggest obstacle.[8] He cannot think, then process his thoughts to write down answers on assessments.[9] He requires “constant redirection” to stay on-task.[10] He cannot focus when in a large classroom because other students create a “big distraction” for him[11] and he in turn distracts his peers and disrupts the class. [12]
The Student first received special education services during the 2020-2021 school year in an Individual Education Service Plan (IESP); however the Parent requested an IEP for the 2021-2022 school year because “he was really, really struggling . . . he was drowning” at his elementary school.[13] The Parent had the Student medically evaluated, which confirmed a diagnosis of ADHD as the source of his academic struggles.[14] The Parent was willing to consider any academic program and placement, whether public or private, that could help him learn. [15]
On May 14, 2021, the CSE convened to create the Student’s IEP and the Parent attended that meeting.[16] The Parent repeatedly conveyed her concerns that the Student could not focus in a large classroom and needed a small classroom to succeed.[17] Nevertheless, the CSE mandated an integrated co-teaching classroom (ICT) for Math, English/Language Arts (ELA), Social Studies, and Sciences (five periods per week each), and also the related services of OT and SLT.[18] The Parent told the CSE that she disagreed with the recommendation because of the large class size, but the CSE maintained the ICT mandate.[19] However, DOE never sent the Parent a school location letter with which to implement the IEP.[20] The Parent thereafter unilaterally placed the Student in the Private School for the 2021-2022 school year.
On May 9, 2022, the CSE again convened to create an IEP for the Student for the 2022-2023 school year and the Parent again attended the meeting.[21] The Parent reiterated the need for the Student to be placed in a small classroom because of his high level of distractibility.[22] The CSE again recommended an ICT classroom, but with 10 periods each for Math and ELA. [23] When the CSE explained to the Parent that the classroom would consist of 27-32 students; taught in a general education environment; and at the speed of a traditional classroom,[24] the Parent immediately replied that the Student would not succeed in that classroom.[25] The Parent did not disagree with any other recommendations in the IEP.[26] The Parent had doubts that even a 15:1 classroom, the next-smallest student-to-teacher ratio that DOE could offer, was small enough for the Student’s academic needs.[27] DOE did not change the ICT recommendation because its smaller classrooms could not provide the Student with peers to serve as role models or provide the least restrictive environment (LRE).[28] DOE’s smaller class sizes, located in specialized schools, were primarily comprised of students with intellectual and emotional disabilities.[29] Furthermore, an ICT classroom could sometimes break up into smaller groups to foster more student engagement. [30]
DOE provided the Parent with a School Placement to implement the IEP; however, no one from that school returned the Parent’s numerous phone calls when she inquired about it.[31] The Parent conducted her own research by asking friends with children who attended the school for their opinions.[32] They told her that the school provided a strong academic curriculum for their mainstream children (none had special education needs), but the environment was also large, loud, and fast-paced. [33]
On August 24, 2022, the Parent notified the CSE that she rejected the program and placement offered by DOE and would continue the Student’s unilateral placement at the Private School.[34] DOE did not respond to the notice.
The Private School provides full-time special education, with individualized programs based on assessment of each student’s needs. 35 The Private School serves children with learning disabilities and works specifically with children with attention deficit disorders. 36 To create and implement an individualized plan for the Student, the Associate Principal ran a battery of standardized tests to determine his baseline academic abilities. 37 Although DOE measured the Student’s reading ability at the fifth grade level 38, the Private School assessed him at fourth grade. 39 The Associate Principal placed the Student in a 12:2 classroom, 40 with small-group instruction of two to four students for reading, and one to three students for writing. 41 The Student’s classmates were all classified as speech and language impaired, OHI (other health impairments), and learning disabilities. 42 The Student’s teachers provided supports such as redirection, repetition, graphic organizers, small-group and one-to-one instruction, outlining, scaffolding, and positive reinforcement to keep the Student focused and on-task. 43 The Private School also provided the Student with one-to-one support four times per week in a “Learning Lab,” to assist with gaining new skills.[44] The Student’s reading teacher holds a Master’s Degree in Special Education[45] and his math teacher is State certified in General and Special Education.[46] The Associate Principal holds a Bachelor’s Degree in Special Education and General Education, a Master of Science in Reading and School Building Leadership, and State certifications and licenses in special education, common branch, reading, and school building leadership.[47] The Student progressed two full grade levels in reading, including reading
35 Ex. F. 36 Id. 37 Ex. W2; Tr. p. 120 lines 24-25, p. 121 lines 1-25; p. 122 lines 1-10. 38 Tr. p. 92 lines 10-17. 39 Ex. 2-3; Tr. p. 67 lines 11-12. 40 Tr. p. 119 lines 17-18; Ex. W4. 41 Ex. W4. 42 Id. 43 Ex W. comprehension.[48] The Private School also administers OT and SLT for the Student[49] and provides mainstreaming opportunities via its sister school, a general education yeshiva located on the same block.[50] The curriculum of the Private School is 70 percent secular. [51]
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.[52] 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.[53] 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.[54] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[55] 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. [56]
Prong 1 – FAPE Denied to the Student for the 2021-2022 School Year
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.” [57] 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.[58] “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.”[59] Although DOE may sustain its burden based on documentary evidence alone, that evidence must convey, on its face, a cogent and responsive explanation for its decision that shows how the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. [60]
In this case, as to the Burlington/Carter standard, DOE did not defend that it provided the Student with a FAPE for the 2021-2022 school year. DOE presented a copy of the IEP, prior written notice of the recommendations contained in the IEP, and a psychoeducational evaluation; however, those documents provide no explanation for the CSE’s recommendations and conclude only that the CSE rejected other programs as either “too restrictive” or “not provid[ing the Student] with enough support.”[61] The psychoeducational evaluation makes no recommendations and states only, “all recommendations will be made at [the Student’s] upcoming CSE meeting.”[62] Nor did DOE submit any evidence that it provided the Parent with a placement to implement the IEP. As a result and on this limited record, I do not find that DOE’s proffered documents, on their face, provide a cogent and responsive explanation for how the IEP is reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. Consequently, I find that DOE failed to offer the Student a FAPE for the 2021-2022 school year.
Prong 1 – FAPE Denied to the Student for the 2022-2023 School Year
Similarly, here, I do not find that DOE established that the IEP provided the Student with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. Although the Parent repeatedly expressed her concerns that the Student could not succeed in a full-size classroom because of his ADHD diagnoses, DOE nevertheless maintained that recommendation because in sum, it could offer the Student no other options. DOE reasoned that an ICT classroom was most appropriate because “[h]e needs to be around peers that are role models for him.”[63] However, DOE did not establish how the Student’s exposure to role models would resolve his ADHD and near-constant distractibility and lack of focus. On the contrary, the record establishes that the larger the classroom, the greater the opportunity for the Student’s distraction, regardless of whether or not his classmates are role models. DOE asserts that an ICT classroom provides the least restrictive environment; however, LRE is contextual and only required to the maximum extent appropriate.[64] There is no evidence in the record that the Student can succeed in a classroom of 27-32 students; however, there is ample evidence that he cannot. As a result, I find that an ICT classroom is inappropriate and that the Student’s education cannot be satisfactorily achieved in that setting. As a result, I find that DOE failed to offer the Student a FAPE for the 2022-2023 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.’” [65]
For both school years, the Parent provided the Student’s class schedule, progress reports, and goals (for academic, behavioral, and therapies); the Parent’s signed enrollment contracts; a program description of the Private School and the testimony of the Associate Principal. The Private School provides full-time special education for children with learning disabilities and ADHD such as the Student exhibits. The Private School provides instruction specifically tailored to the Student’s needs, taught in very small classes and supplemented with one-to-one instruction by qualified teachers. It also administers to the Student the related services of SLT and OT. 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 parents tuition reimbursement for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the student available for an evaluation; or (c) failing to timely notify DOE of their intent to reject the proposed IEP and enroll the student in a private school at public expense, [66] no facts support such a finding in this case. DOE made no claim and provided no evidence that the Parent here behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to the Parent’s proffer of a “Ten Day Notice of Intent” to place the Student in the Private School and seek reimbursement. Moreover, the Parent acknowledged that any tuition funding or reimbursement should not cover the religious-instruction component offered at the Private School, which the Associate Principal acknowledged was 30 percent.
The Parent’s enrollment contracts show that the Private School charged $53,281.80 for tuition and related services for the 10-month, 2021-2022 school year [67], and $64,700.00 for the 2022-2023 school year [68], for a gross total of $117,981.80. Less 30 percent for religious instruction ($35,394.54) is $82,587.26, of which the Parent paid $18,500.00 and $18,750.06, respectively for a total of $37,250.06. The outstanding balance due to the Private School is $45,337.20. I find that the equities favor the Parent and therefore, award funding and reimbursement for the secular portion of the Student’s instruction (tuition and related services).
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that DOE shall fund the tuition and related services owing directly to the Private School for the Student’s placement during the 10-month 2021-2022 and 2022-2023 school years in a sum not to exceed $45,337.20 (Forty-Five Thousand
Three Hundred Thirty-Seven Dollars and Twenty Cents).
2. FURTHER ORDERED that DOE shall reimburse the Parent for monies paid to the Private School for the Student’s placement during the 10-month 2021-2022 and 2022-2023 school years in a sum not to exceed $37,250.06 (Thirty-Seven Thousand
Two Hundred Fifty Dollars and Six Cents).
SO ORDERED.
DATED: November 22, 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
1. Individual Education Plan 5/15/2021 21 pages DOE
2. Individual Education Plan 3/20/2022 19 pages DOE
3. Prior Written Notice 6/7/2022 9 pages DOE
4. Prior Written Notice 7/12/2022 11 pages DOE
5. Psychoeducational Evaluation Report 5/6/2021 6 pages DOE
6. School Progress Report 5/11/2021 1 page DOE
7. WITHDRAWN DOE
8. WITHDRAWN DOE
9. WITHDRAWN DOE
10. Affidavit of [REDACTED], Special Education Teacher 10/12/2023 4 pages DOE
PARENT EVIDENCE
A. Impartial Hearing Request with Receipt 03-28-2023 5 pages
B. Amended Impartial Hearing Request 08-07-2023 4 pages
C. Ten-Day Notice with Receipt 08-25-2022 4 pages
D. Enrollment Contract 09-09-2021 2021-2022 5 pages
E. Enrollment Contract 09-07-2022 2022-2023 5 pages
F. School Profile Undated 4 pages
G. Attendance Record 06-23-2022 2021-2022 1 page
H. Attendance Record 06-22-2023 2022-2023 1 page
I. Class Schedule September 2021 2021-2022 1 page
J. Class Schedule September 2022 2022-2023 1 page
K. School Progress Report April 2022 2021-2022 3 pages
L. School Progress Report April 2023 2022-2023 3 pages
M. Speech-Language Therapy Progress Report 2-15-2022 21-22 02 pages
N. Occupational Therapy Progress Report 1-30-2022 21-22 02 pages
O. Speech-Language Therapy Progress Report 1-10-2023 22-23 02 pages
P. Occupational Therapy Progress Report 1-3-2023 22-23 03 pages
Q. Tuition Affidavit 06-15-2022 2021-2022 01 pages
R. Tuition Affidavit 06-20-2023 2022-2023 01 pages
S. Proof of Payment Multiple Dates 2021-2022 18 pages
T. Proof of Payment Multiple Dates 2022-2023 16 pages
U. Parents’ 2022 Tax Return September 2023 02 pages
V. Testimony Affidavit [REDACTED], Parent of 10-11-2023 [REDACTED] Testimony Affidavit 04 pages
W. Testimony Affidavit [REDACTED], Associate Principal 10-12-2023 and Educational Director of High School 06 pages
Footnotes
[1] Ex. A.
[2] The Parent filed an amended DPC on August 9, 2023.
[3] Ex. 2.
[4] Ex. 1-4.
[5] Id.
[6] Ex. 1-3, 2-1.
[7] Ex. 2-3.
[8] Ex. 2-4, 2-28.
[9] Ex. 2-4.
[10] Ex. 2-5.
[11] Ex. 2-28.
[12] Ex. 2-5.
[13] Tr. p. 140 lines 2-9.
[14] Tr. p. 140 lines 10-19.
[15] Tr. p. 141 lines 20-25.
[16] Ex. 1-21.
[17] Ex. 1-3, 1-21.
[18] Ex. 1-15.
[19] Ex. 1-21.
[20] Ex. V2.
[21] Ex. 2-28.
[22] Ex. 2.
[23] Ex. 2-21. DOE reduced the number of ICT periods for Social Sciences and Sciences from the previous year. Id.
[24] Tr. p. 88 lines 2-6, 20-25; p. 89 line 25, p. 90 lines 1-15.
[25] Tr. p. 141 lines 1-17.
[26] Tr. p. 141 line 25, p. 142 lines 1-2.
[27] Tr. p. 142 lines 3-8.
[28] Ex. 2-28.
[29] Tr. p. 96 lines 6-25; p. 97 lines 1-5.
[30] Tr. p. 89 lines 8-20.
[31] Ex. V3; Tr. p 143 lines 16-22; p. 144 lines 22-25.
[32] Tr. p. 142 lines 9-25; p. 143 lines 1-15.
[33] Id.
[34] Ex. C.
[44] Ex. W5.
[45] Ex. W4.
[46] Ex. W5.
[47] Ex. W1.
[48] Ex. L1, W4.
[49] Ex. W5.
[50] Tr. p. 127 lines 20-24.
[51] Tr. p. 123 lines 2-5.
[52] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[53] 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).
[54] 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).
[55] 20 U.S.C. § 1415(f)(3)(E)(i).
[56] 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).
[57] Rowley, 458 U.S. at 203.
[58] 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.
[59] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[60] Id.
[61] Ex. 1-21.
[62] Ex. 5-5.
[63] Ex. 2-28.
[64] 8 NYCRR 200.6(A)(1); 200.1(cc).
[65] 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)).
[66] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[67] Ex. Q.
[68] Ex. R.