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FINDINGS OF FACT AND DECISION
Case Number: 252162
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 07/28/2023
Hearing Requested by: Parent
Date of Hearing: 10/12/2023
Record Close Date: 11/09/2023
Date of Decision: 11/09/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 12, 2023:
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Principal at the Private School
BACKGROUND
On July 28, 2023, the Parent, by and through their attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 252162, 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 school year when its Committee on Special Education (CSE) created a substantively inappropriate and procedurally non-compliant Individualized Education Program (IEP) that it could not implement in any event. The Parent claims inter alia that the CSE failed to perform necessary evaluations, placed the Student in an overly restrictive environment, provided insufficient one-on-one support, and ignored the Student’s bilingual language needs. The Parent thereafter continued the Student’s unilateral placement in the Private School and they now seek direct tuition funding for the portion of the 2021-2022 school year from March 15, 2022, to June 30, 2022.
I was appointed impartial hearing officer (IHO) on July 31, 2023; conducted prehearing conferences on August 28, 2023, and September 19, 2023; and adjudicated a due process hearing on October 12, 2023. At the hearing, DOE did not defend that it provided a FAPE to the Student, nor did DOE assert that the Private School was inappropriate or that equitable considerations favored DOE. However, DOE argued that a portion of the Private School’s curriculum was non-secular in nature, warranting a proportional reduction in any tuition award. [2]
The Parent’s disclosures consisted of testimony (live and affidavit form) and documentary evidence, a list of which is appended to this order. The Parent confirmed that 10 percent of the Student’s class schedule consisted of religious instruction and that they did not seek funding for that portion of tuition. [3]
FINDINGS OF FACT
The Student is [REDACTED] years old 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.[4] He shows significant impairment in his level of intellectual functioning, adaptive behavior, and his expected rate of progress in acquiring skills.[5] His exhibits delays with his receptive and expressive language skills and his speech is mumbled.[6] He requires substantial one-to-one support to make academic progress. [7]
On March 15, 2022, the CSE created an IEP for the Student that mandated a 12:1:1 Special Class of 35 periods a week with speech-language therapy (SLT) (four, 30-minute weekly sessions (two individual, two group), physical therapy (PT) (two, 30-minute individual weekly sessions), and occupational therapy (OT) (two, 30-minute individual weekly sessions).[8] The CSE ignored the Parent’s concerns about an inappropriate staffing ratio, a lack of one-to-one instruction, and the absence of bilingual-Yiddish support.[9] Additionally, DOE could not implement the IEP because the program as written exceeded the number of periods in a school week [10], nor did DOE provide a placement for the Student.[11] The Parent thereafter continued the unilateral placement of the Student in the Private School.
The Private School provides special education to students with intellectual disabilities, the majority of whom have Down Syndrome.[12] 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.[13] The Principal conducts those tests three times each year to modify the Student’s academic curriculum (administered bilingually in Yiddish 14) and goals accordingly.[15] The Student follows the Palmtree Reader curriculum (modified to the Student’s individual skill level), which covers all areas of reading and introduces basic concepts of English grammar for bilingual students.[16] 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.[17] Similarly, the writing curriculum is a multisensory approach that focuses on practical skills such as writing the Student’s name, address, and phone number, and learning upper and lowercase letters.[18] The Student’s classroom provides a student-to-teacher ratio of 12:3.[19] His teachers are licensed special education teachers and are all licensed by the state. [20] 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 bilingualYiddish instruction.[21] The Private School also provides the Student with onsite SLT, PT, and 14 Ex. M3. OT, which in part address delays related to his diagnosis of Down Syndrome.[22] The Private School is located within a general education Yeshiva and dedicates 45 minutes per day to prayer. [23]
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.[24] 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.[25] 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.[26] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[27] 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. [28]
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.” [29] 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.[30] “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.” [31]
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 10-month, 2021-2022 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.’” [32]
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 instructors certified in Special Education. 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,[33] 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; however, DOE asserted that any tuition funding should not cover the religiousinstruction component (prayers) offered at the Private School.
The Parent’s enrollment contract shows that the Private School charged $76,500 for the 10-month, 2021-2022 school year,[34] and Parent seeks funding for the last quarter (March 15, 2022, to June 30, 2022)[35] which totals $24,862.50, less 10 percent for religious instruction ($2,486.25) for a net of $22,376.25.[36] 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 10-month 2021-2022 school year (March 15, 2022, to June 30, 2022) in a sum not to exceed $22,376.25 (Twenty-Two Thousand
Three Hundred Seventy-Six Dollars and Twenty-Five Cents).
SO ORDERED.
DATED: November 9, 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
PARENT EVIDENCE
A. Impartial Hearing Request 7/28/23 5 pages
B. [REDACTED] Program Description undated 2 pages
C. [REDACTED] Curriculum 2021-2022 14 pages
D. Daily Schedule 2021-2022 1 page
E. Progress Checklist 12/16/21 8 pages
F. Occupational Therapy Progress Notes 1/31/22 6 pages
G. Physical Therapy Progress Notes 1/27/22 3 pages
H. Speech/Language Therapy Progress Notes 1/27/22 2 pages
I. Enrollment Contract 6/22/21 3 pages
J. Payment Affidavit 9/20/23 1 page
K. U.S. Tax Return – Form 1040 10/6/20 2019 4 pages
L. Attendance Record 9/20/23 1 page
M. Affidavit in Lieu of Direct Testimony – [REDACTED] 9/28/23 9 pages
Footnotes
[1] Ex. A.
[2] Tr. p. 46 lines 8-12.
[3] Tr. p. 47 lines 6-21.
[4] Ex. M2.
[5] Id.
[6] Id.
[7] Ex. M3.
[8] Ex. A2.
[9] Ex. A.
[10] Ex. A2.
[11] Ex. A5.
[12] Ex. B, M2.
[13] Ex. M.
[15] Id.
[16] Ex. M.
[17] Id.
[18] Id.
[19] Ex. M; Tr. 42 lines 1-23.
[20] Tr. 42 lines 18-24.
[21] Ex. M.
[22] Ex. B, F, G, H, M.
[23] Tr. p. 43 lines 1-11.
[24] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[25] 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).
[26] 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).
[27] 20 U.S.C. § 1415(f)(3)(E)(i).
[28] 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).
[29] Rowley, 458 U.S. at 203.
[30] 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.
[31] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[32] 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)).
[33] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[34] Ex. I.
[35] Ex. A1.
[36] Tr. p. 47 lines 6-15.