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FINDINGS OF FACT AND DECISION
Case Number: 252883
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 08/24/2023
Hearing Requested by: Parent
Date of Hearing: 10/30/2023
Record Close Date: 12/06/2023
Date of Decision: 12/06/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 30, 2023:
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
[REDACTED], Principal at the Private School
BACKGROUND
On October 30, 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. 252883, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation Act. 10F
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year when its Committee on Special Education (CSE) created a substantively inappropriate and procedurally invalid 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, provided insufficient one-on-one support, and repeatedly ignored concerns about placing the Student in an inappropriately large classroom. The Parent thereafter unilaterally placed the Student in the Private School for which she now seeks direct tuition funding.[2] 1F
I was appointed impartial hearing officer (IHO) on August 25, 2023; conducted a prehearing conference on September 26, 2023; and adjudicated a due process hearing on October 30, 2023. At the hearing, DOE relied on documentary evidence to establish that it created timely IEPs that mandated appropriate programs in the least restrictive environment.[3] DOE further argued that the 2F
Private School did not provide the Student with physical therapy as mandated by the IEPs.[4] DOE
3F
did not assert that equitable considerations favored DOE; however, it argued that if I granted the 1 Ex. A. Parent’s requested relief, that relief should not include tuition funding for the non-secular portion of the Private School’s curriculum.[5] The Parent’s disclosures consisted of testimony (live and 4F affidavit form) and documentary evidence. The Parent confirmed that a portion of the Student’s class schedule consisted of religious instruction, but argued that any award should fund the entirety of tuition, whether religious or secular in nature.[6] 5F
FINDINGS OF FACT
The Student is now [REDACTED] years old and her eligibility for special education supports and services is not in dispute. She has been diagnosed with autism spectrum disorder (ASD)[7] and presents with multiple academic, cognitive, language, and socio-emotional delays. [8]
6F 7F
At the beginning of the 2022-2023 school year, when the Student was [REDACTED] years old, her reading and math abilities measured at the second- and third-grade levels, respectively. 9 She
8F
was often dysregulated and demonstrated multiple problem behaviors (low-frustration tolerance, rigidity, outbursts, non-compliance, crying). 10 She was also at-risk for depression, 9F withdrawal, and inadaptability. 11 10F
On October 12, 2021,[11] months before the 2022-2023 school year began, the CSE convened to create an IEP for the Student that would span from October 26, 2021, to October 25, 2022 (October 2021 IEP).[12] The CSE convened a second time on October 27, 2022 to create
11F
an IEP to be implemented from November [10], 2022, until November [9], 2023.[13] The Parent
12F attended both meetings.[14] At the first meeting, the CSE determined that based on the Student’s 13F testing and despite her low reading and math levels, she was no longer eligible for alternative assessments and would thereafter take grade-level standardized tests.[15] The CSE mandated a 14F
12:1+1 Special Class for the extended school year with related services (counseling, occupational therapy, physical therapy, speech-language therapy, parent counseling and training).[16] Both the Parent and an administrator from the Student’s former school expressed
15F
concern about the Student’s ability to take grade-level tests and the IEP’s lack of one-to-one support.[17] Additionally, the Parent expressed general concerns about the CSE’s repeated
16F
mandate of a 12:1+1 classroom which, year after year, had been found to be inappropriate for the Student.[18] Nevertheless, the CSE maintained the recommendation over the Parent’s 17F objections, stating that although it considered two other programs (including a smaller 8:1+1 classroom ratio), it concluded that they were “inappropriate in addressing [the Student’s] academic and social-emotional needs for this school year.” [19]
18F
The Parent received a school location letter the following summer in June 2022, but could not assess the school because the classrooms were locked and the tour guide could not answer substantive questions.[20] On August 23, 2022, the Parent notified DOE that unless and until the 19F
CSE addressed her concerns about the inappropriate program and placement, she would unilaterally place the Student in the Private School and seek public funding for tuition.[21] DOE
20F
did not respond to the Parent’s notice.[22] 21F
The Private School provides full-time special education, from elementary school through high school, to students with ASD and academic, cognitive, language, and socio-emotional delays.[23] To create and implement an individualized plan for the Student, the Principal at the 22F
Private School ran a battery of tests to determine the Student’s baseline academic abilities, reviewed her prior report cards, and observed her in her previous classroom.[24] The Principal
23F
placed the Student in an 8:1+1 class with other students with similar learning delays and profiles.[25] The Private School taught the Student math in a one-to-one setting because of her
24F
delays and lack of focus.[26] Additionally, to generally address the Student’s dysregulation, 25F inattentiveness, and low frustration level, the Student received substantial one-to-one instruction to redirect her focus, break down complex tasks and assignments, facilitate learning, and prompt her to self-regulate.[27] The Principal holds a Master’s Degree and State-certification in 26F
Special Education and the Student’s teachers similarly hold Master’s Degrees in Special Education, are State-certified, and/or have five to 30 years of experience teaching Special Education.[28] The Private School also provided the Student with counseling, social- and 27F vocational-skills training, and occupational and speech-language therapy.[29] In lieu of physical
28F
therapy, the Private School provided various physical movement (recess, gym, dancing).[30] The 29F
Student progressed in all academic areas – notably, her reading, writing, and math abilities improved to a fourth-grade level.[31] Similarly, her behavioral, social, language, and motor skills
30F
also improved.[32] 31F
The Private School dedicates 2.75 hours (or 9.32 percent) per week of its curriculum to prayer and bible study.[33] 32F
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.[34] A FAPE is offered to a student when (a) the IEP developed by its CSE
33F
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.[35] For a procedural violation, an impartial hearing officer may find that a student did not
34F
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.[36] In general, an IHO’s decision must be made on substantive grounds as to whether the 35F student received a FAPE.[37] DOE may be required to pay for educational services obtained for a 36F 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.[38] 37F
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.”[39] 38F
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 her disability and that enable her to make progress in the general education curriculum; and provide appropriate special education and services.[40] “A reviewing court may fairly expect [DOE] to be 39F 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 [her] circumstances.”[41] Although DOE may sustain its burden based on documentary evidence alone, 40F 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 [her] circumstances.[42] 41F
Here, DOE presented the Student’s IEPs, IEP meeting minutes, and two letters identifying the Student’s program as a 12:1+1 Special Class with related services.[43] The October 2021 IEP
42F
states that the CSE rejected two other programs (including an 8:1+1 Special Class) as “inappropriate”[44] and instead concluded that the Student’s delays “can be best addressed in a 43F small class setting in a specialized school that provides a more specific learning environment with modifications, individualized attention, and more educational supports including related services.”[45] However, none of DOE’s proffered documents articulate how a 12:1+1 Special
44F
Class provides that program, nor does the CSE explain vague terms such as “a more specific learning environment with modifications.” Similarly, the CSE does not articulate how the IEP will provide “individualized attention and more educational supports” nor does it explain how or why this program is appropriate for the Student for the 2022-2023 school year, notwithstanding its inappropriateness in prior school years, and the Parent’s repeated concerns about the size of the classroom. At the hearing, DOE argued that a 12:1+1 class provided the Student with a placement in the least restrictive environment (LRE), but nowhere does the IEP reference LRE, nor is there any evidence in the record to establish that the Student can succeed in a classroom of that size.[46] 45F
As a result, on this record, I do not find that DOE’s proffered documents, on their face and without witness testimony to explain their contents, provide a cogent and responsive explanation for how the October 2021 IEP is reasonably calculated to enable the Student to make progress appropriate in light of her circumstances. Consequently, I find that DOE failed to offer the Student a FAPE for the 2022-2023 school year.[47] 46F
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.’” [48]
47F
The Parent provided the Student’s class schedule, progress reports, and goals (for academic, behavioral, and related-service 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 ASD and with academic, cognitive, language, and socio-emotional delays such as the Student exhibits. It also provides one-to-one instruction in small classes taught by instructors with Master’s Degrees and State certifications in Special Education. The curriculum is specifically tailored to the Student based on her level of academic and behavioral functioning. The related services of counseling, occupational therapy, and speech-language therapy are administered on-site by licensed therapists. The Student showed substantial improvement in all areas, and particularly with her reading, writing, and math skills. Although the Private School does not provide physical therapy, it need not offer every service and support to provide the Student with a placement that is reasonably calculated to enable the Student to receive educational benefits.[49] I find the Parent’s evidence to 48F 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 her unique needs, supported by such services as are necessary to permit her 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,[50] no facts support such a finding in this case. DOE made no claim and provided no
49F
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, bible study) offered at the Private School.
The Parent’s enrollment contract shows that the Private School charged $74,000 for the 10-month, 2022-2023 school year,[51] plus related services (speech-language therapy, occupational
50F
therapy, counseling, and parent counseling and training) of $18,360 52 for an overall total of 51F
$92,360.
I find that the equities favor the Parent and warrant funding for tuition and related-services, but only for the secular portion of the Student’s instruction. I do not award funding for the religious portion of the Student’s curriculum (prayers and bible study), which is 9.32 percent.
52 Ex. N3.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that DOE shall fund the tuition ($74,000) and related services ($18,360) owing directly to the Private School for the Student’s placement during the 10-month 2022-2023 school year, less 9.32 percent, which is the religious portion of the Student’s curriculum.
2. DOE shall fund the monies reflected in #1 of this order only to the extent they are not otherwise already funded through pendency, existing court order, or by other means.
SO ORDERED.
DATED: December 6, 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. IEP 10/14/21 28 pages DOE
2. IEP Minutes 10/14/21 1 page DOE
3. WITHDRAWN DOE
4. D 75 Letter 10/14/21 2 pages DOE
5. D 75 Letter 5/19/22 2 pages DOE
6. Prior Written Notice 6/1/22 11 pages DOE
7. IEP 10/27/22 34 pages DOE
8. Vocational Interview for IEP 10/27/22 2 pages DOE
9. IEP Minutes 10/27/22 3 pages DOE
10. D 75 Letter 11/2/22 2 pages DOE
11. Prior Written Notice 11/8/22 6 pages DOE
PARENT EVIDENCE
A. Impartial Hearing Request 08/24/2023 5 pages
B. Ten-Day Notice Letter (with email confirmation) 08/23/2022 3 pages
C. Educational Goals 10/2022 12 pages
D. Teacher Progress Report 02/2023 3 pages
E. Occupational Therapy Goals 10/2022 2 pages
F. Occupational Therapy Progress Report 02/2023 1 page
G. Speech Goals 10/2022 2 pages
H. Speech Progress Report 02/2023 1 page
I. Counseling Goals 10/2022 2 pages
J. Counseling Progress Report 02/2023 2 pages
K. Program Description Undated 2 pages
L. Daily Schedule 2022-2023 1 page
M. Attendance 06/30/2023 1 page
N. Enrollment Contract 09/05/2022 3 pages
O. Transportation Addendum to Enrollment Contract 10/03/2022 1 page
P. Tax Return 2022 2 pages
Q. Affidavit of Testimony of [REDACTED] 10/23/2023 7 pages
R. Affidavit of Testimony of [REDACTED] 10/23/2023 3 pages
Footnotes
[2] Id.; Tr. p. 8 lines 24-25, p. 9 lines 1-19, p. 57 lines 11-17.
[3] Tr. p. 11 lines 14-25, p. 12 lines 1-25, p. 13 lines 1-3.
[4] Tr. p. 13 lines 4-10.
[5] Tr. p. 46 lines 9-19.
[6] Tr. p. 55 lines 8-25; p. 56 lines 1-25, p. 57 lines 1-17.
[7] Ex. R.
[8] Ex. 1-9.
[9] Ex. 1-25.
[10] Ex. 1-1, 1-2, 1-4, 1-5
[11] Ex. 1-2.
[12] Ex. 1-25.
[13] Ex. 7-33.
[14] Ex. 1-28, 7-34
[15] Ex. 1-5.
[16] Ex. 1-20, 1-21.
[17] Ex. 1-5, R2.
[18] Ex. R2, 2-1.
[19] Ex. 1-27.
[20] Ex. B, R.
[21] Ex. B.
[22] Ex. R2.
[23] Ex. K, Q2.
[24] Ex. Q; Tr. p. 37 lines 6-14; p. 38 lines 3-11.
[25] Ex. Q.
[26] Ex. Q4.
[27] Ex. Q.
[28] Ex. Q3.
[29] Ex. K, Q5.
[30] Tr. p. 40 lines 6-21.
[31] Ex. C, D, Q4.
[32] Ex. C, D, I, J, Q, R.
[33] Ex. L.
[34] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[35] 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).
[36] 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).
[37] 20 U.S.C. § 1415(f)(3)(E)(i).
[38] 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).
[39] Rowley, 458 U.S. at 203.
[40] 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.
[41] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[42] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[43] Ex. 1, 2, 4, 5, 6, 7. DOE provided other documents related to the subsequent October 27, 2022 IEP meeting, but I give them no weight because they pertain to events that occurred after the Parent’s unilateral placement on August 23, 2022.
[44] Ex. 1-27.
[45] Ex. 1-9.
[46] 8 NYCRR 200.6(A)(1); 200.1(cc) (DOE must provide a placement in the least restrictive environment only to the maximum extent appropriate and unless education cannot be satisfactorily achieved).
[47] I further find that the Parents’ Section 504 claim is subsumed by the above IDEA analysis. The Parents did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC, with respect to a denial of FAPE.
[48] 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)).
[49] Id.
[50] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[51] Ex. N.