Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

IHRS or NYC Case Number: 255953

School District: NYC School District

Impartial Hearing Officer: Philip P. Sturges

Request Date/Date Complaint: September 5, 2023

Filed/Date of Decision: November 9, 2023

Date of Distribution, if Different than Decision Date: n/a

INTRODUCTION

The Parents, through counsel, filed a Due Process Complaint (DPC) on or about September 5, 2023. In the DPC, the Parents alleged that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year. (Ex. A)

The Parents alleged as follows: The Committee on Special Education (CSE) last convened on June 1, 2022 and classified the Student with a Speech or Language Impairment. The CSE failed to convene to develop an individualized education program (IEP) for the Student for the 2023-2024 school year. The CSE failed to consider appropriate evaluative data. The DOE failed to hold timely and compliant IEP meetings. The DOE failed to provide the Student with an appropriate placement. The DOE failed to appropriately address the Student’s academic needs. The DOE failed to develop appropriate present levels of performance. The DOE failed to recommend appropriate related services. The DOE failed to develop appropriate goals. The DOE failed to develop an appropriate educational program. By way of relief, the Parents seek an award of tuition reimbursement for the Student’s unilateral placement at the Private School for the 2023-2024 school year. (Ex. A)

PROCEDURAL HISTORY

I was appointed on September 12, 2023. On October 5, 2023, the parties appeared for a pre-hearing conference. On November 2, 2023, the parties appeared for the hearing. The Parent Representative made an opening statement, the DOE Representative waived an opening statement. The DOE did not seek to introduce witness testimony or any other evidence. The DOE conceded it had failed to demonstrate it offered the Student a FAPE for the school year at issue. The Parents submitted 15 exhibits into the record on consent of the DOE. Included in the Parents’ evidence were two witness affidavits, one from the Parent (Ex. N), and one from the Speech and Language Pathologist and CSE Coordinator at the Private School (Private School S/L Pathologist) (Ex. O). The DOE Representative waived cross-examination of the witnesses or a closing statement. The Parent Representative made an oral closing. (See November 2, 2023 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The Parent testified credibly as follows. The Student is currently [REDACTED] years old and attends the seventh grade at the Private School. (Parent Aff. at ¶¶ 4-5). The Student has been medically diagnosed with a speech sound disorder/phonological disorder, a language disorder, a specific learning disorder with an impairment in reading, and a specific learning disorder with an impairment in written expression. The Parent is aware of the Student’s disabilities as a result of her February 2021 neuropsychological evaluation. (Id. at ¶ 6; Ex. D). The Student has been attending the Private School since September 2021. IHOs ordered the DOE to fund the Student’s tuition at the Private School for the 2021-2022 and 2022-2023 school years pursuant to impartial hearing orders. (Id. at ¶ 7). The Student attended DOE public schools prior to attending the Private School. (Id. at ¶ 8). The Private School provides appropriate interventions and supports that the Student requires as a result of her disability in accordance with the recommendations in the Student’s neuropsychological evaluation, which has allowed the Student to make progress in all areas of educational need. Prior to attending the Private School the Student could not make progress in her areas of need because the DOE failed to provide her with appropriate supports and services. (Id. at ¶¶ 9-10). The Private School provides a small supportive classroom environment for the Student, with a maximum class size of 10 grouped with students with similar educational needs and abilities. The Student’s literacy and math classes have no more than five students giving the Student the small group and individualized instruction she needs in order to learn. (Id. at ¶ 11). The Private School provides the Student with Orton-Gillingham, Wilson Reading System, and multi-sensory instruction throughout the school day, which is critical for the Student as it appeals to all her senses. (Id. at ¶ 12). As a result of the Private School’s interventions, the Student demonstrated significant progress in all areas of need, including the ability to read aloud which she previously struggled to do. (Id. at ¶ 13). The Private School provides the Student with related services, such as S/L and fine-gross motor sensory support, which has improved her handwriting and writing stamina, and assistive technology (AT) supports. As a result the Student has progressed in spelling and grammatical areas. (Id. at ¶¶ 14-15). The Private School’s multi-sensory instruction also supports the Student’s educational needs in math. She is better able to read word problems and provide written answers due to progress in her reading and writing abilities, and has improved her understanding of ratios and percentages using color coding. (Id. at ¶ 16). Since attending the Private School the Student’s confidence has greatly improved, causing her to become a more active member of the school community. She participates in newspaper club, and entered and won a poetry contest. (Id. at ¶ 17). By being placed with students with similar educational needs and abilities, the Student has obtained a greater understanding of her own learning needs and better accepts and understands her disability. (Id. at ¶ 18). The Private School promotes selfadvocacy, which is especially important for the Student because of her language and articulation deficits, and she is now able to better self-advocate. (Id. at ¶ 19). The Private School has been extremely supportive and helpful to the Parent, providing regular feedback and communication on the Student’s education, and the Parent is better able to facilitate the Student’s progress at home as a result of the guidance received from the Private School staff. (Id. at ¶ 20).

The Private School S/L Pathologist testified credibly as follows. She holds a master’s degree in communication disorders: speech language pathology, is certified as a teacher of students with speech and language disabilities, holds a certificate of clinical competence in speech-language pathology, and is certified by NYS to teach students with speech and language disabilities. (Private School S/L Pathologist Aff. at ¶¶ 4-5). She is the S/L Pathologist and CSE Coordinator at the Private School. (Id. at ¶ 1). She has worked as a S/L pathologist at the Private School since 2017 providing language support to students with language based learning disabilities in grades six through eight, teaching small group language classes, creating and teaching a social pragmatic curriculum to all sixth and seventh grade students, teaching a daily literacy class, and consulting with teachers to ensure students are receiving proper modifications to support their learning needs in the classroom. (Id. at ¶ 9). As CSE Coordinator she participates in IEP meetings, conducts formal and informal observations of students, and holds meetings with therapists and teachers to understand each child’s educational profile and learning needs. (Id. at ¶ 10). The Private School is a full-time K-12 college preparatory school specifically designed for students like the Student who need intensive support for their learning disabilities, small class sizes, specialized teaching methodologies, a multi-sensory approach to learning, and a challenging curriculum. (Id. at ¶ 12). The Private School has 148 students in the middle school for the 2023-2024 school year. (Id. at ¶ 13). The Private School offers speech language therapy (S/L) and occupational therapy (OT). Students with similar needs and abilities are grouped together to form a cohesive group with homeroom class ratios between ten students and two teachers and twelve students and two teachers. (Id. at ¶ 18). For literacy and math, students are grouped homogeneously into even smaller groups based on their levels, strengths, and individual struggles. The average middle school class size is 6:1. (Id. at ¶¶ 19-21). Students are assessed on an ongoing basis to continually measure their progress, which enables the Private School to continually modify a program or method for the particular student. (Id. at ¶ 25). The Private School issues extensive progress reports twice a year and teachers communicate with parents formally and informally throughout the school year. (Id. at ¶¶ 26-28).

The Private School S/L Pathologist is familiar with the Student, having worked with her teachers and conducted informal observations of her since she entered the Private School in September 2022. (Id. at ¶ 29). To address the Student’s special education needs for the 2023-2024 school year, she is placed in a homeroom with ten students and two head teachers. All of the students have language-based learning disorders. Morning homeroom is used to plan for the day ahead, ensure homework is complete, materials are organized, and scheduling questions are answered individually. This is important for the Student due to her executive functioning and organizational deficits. (Id. at ¶¶ 30-31). The Student has sustained friendships successfully at the Private School and demonstrated gains in her social-emotional skills throughout the school year, demonstrating increased confidence, social abilities, and leadership qualities. (Id. at ¶ 32). The Private School provides the Student with specific interventions to support her executive functioning, expressive and receptive language, reading and writing deficits. These include direct instruction in executive functioning strategies, clarification and repetition, a slower pace of instruction, consistent multi-sensory instruction across academic environments, frequent review, and small groups with an additional teacher during challenging tasks. (Id. at ¶ 33). The small group, individualized support, and programs implemented are enabling the Student to make progress in reading and writing. (Id. at ¶ 34). The Student is also provided with an individualized system for organizing and staying on top of independent work using a planner and notebook that is overseen by her homeroom teachers. Through this system the Student has shown improved organizational skills. (Id. at ¶ 35). Due to the Student’s struggles with receptive and expressive language skills, the Student’s teachers break down complex information into smaller chunks and allow for extended think-time, which has improved her participation, socialization, and comprehension of higher level language concepts. (Id. at ¶ 37). The Student’s math class has five students and one teacher, grouped based on math needs and abilities. The Student receives direct instruction of new topics and participates in ongoing review of foundational mathematics. The Student requires small group and 1:1 instruction in math due to her language-based learning disabilities. Repetition and a spiraled curriculum are also necessary for the Student to commit math information to memory. As a result of the Private School’s interventions the Student has demonstrated steady progress in math during the 2023-2024 school year. (Id. at ¶¶ 38-41). The Student’s literacy class has five students and one teacher. The literacy curriculum is taught through multi-sensory and direct instruction, which is appropriate for the Student due to her weakness in abstract reading comprehension at an instructional level.

(Id. at ¶ 42). In terms of reading, the Student’s decoding and fluency skills continue to be an area of growth based on the targeted, multisensory instruction provided to her. (Id. at ¶ 43). With supports including guiding questions and explicit instruction, the Student is becoming more independent is text analysis and has strengthened her writing skills to be able to convey the same level of knowledge that she can convey verbally. (Id.at ¶ 44). Her writing instruction is multi-sensory and evidence based, and reinforces key writing skills such as outlining and organizing, sentence expansion and combining, sentence structure diversification, and editing and revising written work. Through this program the Student’s sentence and paragraph writing have improved. (Id. at ¶ 46). The Student also receives related services at the Private School consisting of S/L once a week as a push-in service in her writing class. Her language pathologist provides her with verbal cues to help with her speech articulation deficits, and she has progressed as a result. (Id. at ¶¶ 48-49). In addition to her math and literacy classes, the Student has Spanish, history, science, visual arts, specials, and physical education. Her curriculum also includes social emotional learning forum, learning and the brain, social thinking, digital literacy, and visual and performing arts. She also has opportunities to join clubs and extra-curricular activities. Overall the Student is pleasant, eager, and engaged. (Id. at ¶ 50). The Student attends a half-year social thinking class targeting social-pragmatic language skills which has helped the Student in navigating social relationships with her peers. The Student also has access to a school counselor on an as-needed basis. (Id. at ¶¶ 51-52). The Private School’s small class sizes of similarly functioning students have supported the Student in her social development. Although her self-advocacy skills remain an area of need, she will now advocate for herself in classes where she feels comfortable with the teachers. (Id. at ¶ 53). The Private School is an appropriate setting for the Student. Her program is individualized to meet her specific learning needs, and she is provided with multi-sensory and evidence-based instruction throughout the school day at her level presented in a manner consistent with her needs. The small class sizes with purposeful peer groupings have been critical in ensuring the Student is able to learn, and she is making steady progress. Having access to an additional teacher in the classroom allows for the 1:1 support she needs. With the use of graphic organizers and checklists, she is developing metacognitive skills to edit and revise her written work. With all these supports the Student is making progress and becoming more independent in her educational abilities. (Id. at ¶ 55)

The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. See 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” Id.

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 or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. See NYS Educ. Law § 4404(1)(c).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no witnesses or other evidence at hearing. Rather, the DOE Representative indicated on the record that it conceded Prong I. (T p. 14, L 3-5). I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2023-2024 school year. Moreover, a review of the Parent’s DPC and evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2023-2024 school year. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”^[1] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.^[2] Here the Parents alleged in the DPC that although the CSE had classified the Student with a Speech or Language Impairment, it failed to convene to develop an IEP for the Student for the 2023-2024 school year. At the hearing, the DOE failed to refute this claim, which is consistent with the evidence in the record.

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112. Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

Here the Parent sought an educational program to address the Student’s speech sound disorder/phonological disorder, language disorder, specific learning disorder with an impairment in reading, and specific learning disorder with an impairment in written expression consistent with the recommendations in the Student’s February 2021 neuropsychological evaluation that the Student requires a small special education classroom within a small, nurturing school environment, and enrolled her in the Private School. (Parent Aff. at ¶¶ 6-7; Ex. D). The Private School has provided the Student with an individualized program to meet her specific learning needs with multi-sensory and evidence-based instruction throughout the school day at her level presented in a manner consistent with her needs with small class sizes of appropriately grouped peers, the 1:1 support she needs, and interventions to address her executive functioning deficits, which has allowed the Student to make educational progress and become more independent in her educational abilities during the 2023-2024 school year. (Private School S/L Pathologist Aff. at ¶ 55)

In reviewing the Private School S/L Pathologist’s affidavit (Ex. O), the weight of the evidence establishes that the Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE offered no arguments concerning the appropriateness of the Parents’ unilateral placement and did not object to any document accepted into the record. Under these circumstances, I find that the Parents’ witnesses are credible and that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s need under Prong II of the Burlington/Carter standard.

Turning to Prong III of the Burlington/Carter standard, even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, the district court may consider many factors, including, inter alia, whether plaintiff's unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether plaintiff should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the DOE, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, the Parents sent a timely TDN to the CSE on August 21, 2023, notifying the DOE that it had failed to convene to develop an IEP for the Student for the 2023-2024 school year, and of their intention to unilaterally place the Student at the Private School and seek tuition reimbursement from the District. (Ex. B) At the hearing, the DOE did not argue that any equitable considerations weighed against the Parents. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. (Exs. K & M) The Student is attending the Private School during the year at issue (Private School S/L Pathologist Aff. at ¶¶ 30-31). The total contracted annual tuition rate for the Student’s attendance at the Private School for the 2023-2024 school year is $69,500, of which the Parents have paid $40,250, with a balance due of $29,250. (Ex. M). I find that the weight of the evidence establishes that the Parents cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. (See Parent Aff. and Ex. B) Overall and after considering the record at hearing, I find that the equities support the Parents’ claim for full tuition reimbursement.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

The Parents’ claim for tuition reimbursement for the Student’s unilateral placement at the Private School in the amount of $69,500.00 is GRANTED for the 2023-2024 school year as follows: The DOE shall, within thirty (30) days of receipt of this ORDER, reimburse the Parents in the amount of $40,250.00 for the portion of the tuition previously paid to the Student’s Private School for the 2023-2024 school year, and within thirty (30) days of receipt of proof of payment, further reimburse the Parent in the amount of $29,250.00 for the remaining balance of the Student’s tuition at the Private School for the 2023-2024 school year.

Dated: November 9, 2023 _Philip Sturges_______

Philip P. Sturges

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.

Footnotes

[1] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.

[2] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).