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Special Education Law
DECISIONParent PrevailedIHO Case No. 506489

Impartial Hearing Decision

September 13, 2021·Martin J. Kehoe III·Pleasantville UFSD

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF A PARENT CONCERNING THEIR CHILD

AGAINST Decision and Order on Remand

Case Number: 506489

REDACTED

Introduction

This document constitutes the Decision of the undersigned Impartial Hearing Officer (IHO) pursuant to the Individuals with Disabilities Education Act, 20 USC §§1400-1482, (IDEA) and Article 89 of the New York State Education Law. As a result of a remand from United States District Court Judge, Cathy Seibel, decision, #19-CV-6508 (CS), I have been directed to adjudicate the Parents’ “substantive” free appropriate public education (FAPE) claims for the 2016-2017 and 2017-2018 school years[1]. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. This is a reimbursement case.[2]

Overview In this Decision I will review the pleadings and the position of the parties as they have been developed in this record,[3] I review the relevant student history, and I will then move to apply a three-prong analysis to each of the two-years at issue. I will first examine whether the District met its burden to demonstrate the appropriateness of their program[4], second whether the Parents met their burden to demonstrate the appropriateness of the placement at the Private School, and finally whether equitable considerations favor the District or the Parents in this matter. Ultimately, I find for the Parents on all issues and direct reimbursement for the cost of the unilateral placement for each of the two years in question.

Parents’ Position The Parents allege that the District denied the Student a FAPE for the 2016-2017 and 2017-2018 school years. The essence of their claim is that the District programming was “... neither effective nor individually tailored to [the Student’s] unique needs.” (Ex.1, p.6, ¶6) As a result, the Student would be unable to achieve a “meaningful postsecondary experience or independent living.” (Ex. I, p.3-) The Parents are seeking tuition reimbursement for the Private School for each of the two school years at issue. (Ex. 1)

District’s Position The District maintains that the programs offered to the Student were unique (T. 105), sought after, offered successful learning opportunities (T. 703) that were specifically tailored to meet the needs of the Student (Ex. 4 p.2), and that the residential component of the Private School was not appropriate for the Student (T. 362-363 - not the Least Restrictive Environment (LRE)), and, finally, that the sequence of events leading to the placement suggested that the Parents had an agenda to obtain a residential placement, and they were not cooperating with the Committee on Special Education (CSE). (T. 133-134, 139, 157-159, IHO Ex. 1 pp. 25-26)

Student History The Student was evaluated for early intervention services at eighteen months because of delays in language. She began receiving related services and Special Education Itinerant Teacher (SEIT) Services at age 23 months. (Ex. A) Services continued under the jurisdiction of the Committee on Preschool Special Education (CPSE). Beginning in Kindergarten, the Student was recognized by the CSE and was classified as Other Health Impaired (OHI). (Ex. A, 3 & E) She had attended District schools since elementary school. (T. 1962, 1966) Beginning in ninth grade (the 2014-2015 school year), the Student was in the Individual Support Program (ISP) in high school. (This is essentially the same program that was recommended for the Student and rejected by the Parents in each of the two years at issue (2016-2017 & 2017-2018)).

This program is at the core of the instant controversy[5]. It consists of special education services that offered an “inclusive environment where students would continue with their same-aged peers year after year.” (T.98) The program was hand crafted by Director #1: “… I believe we are the only school district that provides such a program.” (T. 104) It consisted of special education classes which were instructed by a dually certified special education teacher, meaning that the special education teacher was also certified to teach the content area of instruction (social studies, English, etc.). The ISP was further supported by a board-certified behavior analyst (BCBA) whose job it was to address the social implications characteristic of students with developmental disabilities as well as a teaching assistant who pushed into the special class. (T. 100) In the classes, that were not described as special classes, the Student was offered consultant teacher services, supported by a teaching assistant, and the ISP teacher, who is also the BCBA. (T. 365)

Leading up to the 2016-2017 school year (eleventh grade for the Student) several concerns arose relative to the Student’s prospects at the District. Her Mother reported school anxiety (Ex. F & T. p.1960, 1994), lack of opportunities to socialize (T. 2031-2032, 2050-2052, 2236-2239 & 2241), and the Student’s inability to keep up academically. (T. 2021-2022)[6]

The Parents had the Student evaluated by the Private Psychologist who knew the Student and counseled the Student several years earlier when she was attending the District’s middle school. (T. 1136, 1138) He recently diagnosed the Student with autism and anxiety disorder, among other impairments, and recommended a residential placement. (Ex. I & 9)

2016-2017 Annual Review In May 2016, a CSE annual review meeting was held for the Student for the upcoming 2016-2017 school year. At that meeting, CSE members disagreed with the Private Psychologist’s assessment of the Student’s social/emotional functioning and his recommendation for a residential school placement. (T. 128-134, 1402. The CSE did change the Student’s classification to autism (which has remained (Ex. 5, 4, 6,7 &11)), and they added social skills training and increased family training.

The CSE recommended that the Student should continue in the ISP Program. (Ex. 5 - pp. 1,9,10,12, T.145, 343) The Parents’ request for a residential program was “disregarded.” (T. 2058-2066) The Parents signed a contract with the Private Residential School on June 1, 2016. (Ex. AA) They sent a letter to the District Superintendent on August 18, 2016 with their concerns about the District program. (Ex. N)

In response, another CSE meeting was held on August 31, 2016 to address the Parents’ concerns. The CSE added some goals. (Ex. 4, P. 2) The Parent (Mother) was persistent in her advocacy for a residential program. (T. 2097-2099) As to the responsiveness of the District, the Parents assert: “too little, too late.” (T. 2323) The Parents sent the Student to the Private Residential School for the 2016-2017 school year. (Ex. T)

During the first year at the Private Residential School, the Student progressed academically (T. 2166, 2168, 2171), emotionally (T. 2178-2179), and socially. (T. 2183, 2185-2186, 2237)

2017-2018 Annual Review

A CSE Meeting was held on May 31, 2017 as an annual review for the 2017-2018 school year (triennial year, with assessments). (IEP Ex. 6) Again, the Parents requested a residential placement, but the District determined that the ISP was the least restrictive environment. The Parents sent a 10-day notice letter to the CSE on August 9, 2017 disagreeing with the program and specifying the fact that “social/developmental needs cannot be met in day placement.” (Ex. V) The CSE reconvened on August 29, 2017 for the purpose of addressing the Parents’ concerns. (Ex. 7 - comments section of IEP) The Parents again enrolled the Student in the Private Residential School for the 2017-2018 school year.

Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

Issue

The central issue present within this case is whether the District provided a program sufficient to address the individualized needs of the Student and how that program corresponds to the concept of the least restrictive environment.

Rule

If a child's placement does not confer a "meaningful benefit" to the student and a more restrictive program[7] is likely to provide such benefit, the child is entitled to be placed in that more restrictive program. P. v. Newington Bd. of Educ., 546 F. 3d 111  (2d Cir. 2008) and Hartmann v. Loudoun County Bd. of Educ., 118 F. 3d 996 (4th Cir. 1997), cert. denied, 522 U.S. 1046 (1998).

Prong I

My initial decision ruled for the Parents and turned on the proposition that a FAPE was denied based upon a finding that the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE was significantly impeded. This was a procedural violation[8] and this conclusion was rejected by both the State Review Office, SRO, 19-007 and the District Court (@ p. 35). Now on remand, I take up this case from the perspective of whether there is a substantive violation of the Student’s rights. It is arguable that the District ISP program is among the most ambitious in New York State and as such it provides opportunities that are not available in many if not most public schools. Notwithstanding this, I am convinced that the programming for the Student was not appropriate for her. Specifically, the ISP program, for her, led to regression academically and social isolation with school avoidance.

Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. In past decisions, the standard for the appropriateness of a FAPE and IEP offered by a school district has solely been interpreted under Rowley. Under Rowley, an IEP must be reasonably calculated to produce an educational benefit that was “merely more than de minimis” progress.

The Supreme Court, in Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), has clarified that the IDEA, as “a general standard... requires an educational program reasonably calculated to enable a child to make progress appropriate in the light of the child’s circumstances,” which is “markedly more demanding than the ‘merely more than de minimis’ test articulated in the Tenth Circuit” from which Endrew F. had evolved. The Endrew F. decision also clarified that an IEP must include goals and services to enable a child to make both academic and functional progress.

The newly articulated standard in Endrew F. pronounces that there can be no bright-line rule governing the appropriateness of any FAPE claim. Each student with disabilities has unique needs and circumstances, and “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. “A focus on the particular child is at the core of the IDEA.” Id. at 7 “The instruction and services must likewise be provided with an eye toward ‘progress in the general education curriculum’” Id. at 7

Despite this new standard, Endrew F. has not replaced Rowley, rather the Supreme Court has maintained a middle-ground standard by retaining the “reasonably calculated” standard used throughout Rowley. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to able a child to make progress appropriate in light of the child’s circumstances.” Id. at 6 The Court explained that the qualification of the IEP “reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials” based on the specific facts related to a student and informed by school officials' expertise and input from the parents or guardians. Endrew F., 580 U.S. at 6. The Court further observed that “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Id. at 6 “The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Id. at 6

Children have specific and individualized needs. Endrew F. draws attention to exactly that. In that decision the Supreme Court stressed that the objective impressiveness of a particular FAPE is not the sole concern in determining that programs appropriateness for a child. The concept of IDEA does not stress a need for providing the most in-depth or intensive FAPE program. Rather, a program’s measure of success with a specific child is measured by that specific child’s opportunity to progress academically and functionally in a cognizable manner.

Findings of Fact

My determination that the IEP provided by the District was not sufficient to confer a meaningful educational benefit to the Student in the least restrictive environment rests upon the following findings of fact: (1) The District’s recommendations for the Student’s programming and services were too ambitious and unintentionally competitive; (2) As a result of the ambitious programming, the Student suffered a regression academically and socially while enrolled in the District placement; and (3) The regression ultimately caused the Student to fear school and led to an increase in her anxiety, her emotional fragility, and a lack of confidence. The record supports these findings for the following reasons:

The District’s Recommendations Were Too Ambitious and Unintentionally Competitive The case at hand can be compared to the facts contained within Hartmann v. Loudoun County Bd. of Educ., 118 F. 3d 996 (4th Cir. 1997), cert. denied, 522 U.S. 1046 (1998). There, following a “Functional Behavioral Assessment,” on May 5, 2016, the District determined that the Student suffered from repeated inattentiveness and off-task behavior. (Ex. H-1) It was recommended by the District that the Student’s target classroom size would be comprised of the Student and only one other student, with one teacher delivering instruction. In Hartman the school district was challenged for making a restrictive placement. (Ex. H-1) Because of this behavior, the Student would need to be refocused often. Overturning the school district’s program, the District Court seemingly ignored the very unique learning characteristics of the student in favor of the application of the concept of “inclusion”. In reversing the District Court with a remand with instructions to dismiss the case, the Court of Appeals concluded: “The IDEA encourages mainstreaming, but only to the extent that it does not prevent a child from receiving educational benefit.’ In our case the 2016-2017 IEP recommendations for the Student for the 2016-2017 school year are quite ambitious: increase in functional academics; increase in independence with life skills and improved functional communication; individualized instruction to improve academics; and an increase in pre-requisite skills for participating in internships related to post-secondary interests. (Ex. 5) All of these are laudable goals and on a prima facie basis they are fine. The testimony provided by District employees, both past and present, describes an extensive program supported by highly educated individuals. The Student’s Parents agree with such a determination, but the record reflects that the Parents did not feel as though the program was set-up for the Student to benefit.

But upon a more serious look at the Parents assertions, I conclude that what appears as a less restrictive option (being placed at the home school, inside the local community, near her parents) turns out to be problematic. The District did not “take a hard look at these unique needs, particularly her anxiety and her [low level of] adaptive living skills” that are highlighted in the Student’s previous assessments. (T. 42) The program recommended by the District has been characterized as “unduly confusing and insufficiently supportive” for the Student and resulted in her becoming “very anxious about attending school.” (T. 42) These beliefs and concerns over the Student’s struggles were confirmed further following a private psychoeducational evaluation carried out by the Private Psychologist in 2016. (T. 128-134, 1402)

When the Student began showing signs that she was struggling in the District’s placement, the Parents acquired the psychoeducational evaluation (Ex. 9) and the Private Psychologist’s recommendations. (T. 1151)[9]

Despite the Parents’ bringing evidence and drawing further attention to these aspects of the Student’s struggles, the IEP’s, and their accompanying meetings which came after the private psychoeducational evaluation, were “exemplative of the District’s disregard” of the Parents’ recommendations. (T. 45) The program was not situated in a manner to address the Student’s needs and the evidence put forth by the Parents, including the Private Psychologist’s evaluation, supports such a conclusion.

The Student suffered a regression academically and socially

Evaluative reports conducted on the Student revealed that much of the time spent at the District’s recommended placement resulted in a quantifiable regression relating to her social-emotional and academic levels. An initial psychoeducational evaluation was carried out by the Private Psychologist, who had been observing the Student as early as 2009 after she was referred to him because of her excessive anxiety. Private Psychologist proceeded to meet with her weekly for forty-five (45) minutes throughout 2010.

In his May 7, 2016 report, which was available to the District at the time of the 2016-2017 IEP meeting, Private Psychologist noted that the Student “was under an inordinate amount of stress and that in her current placement it was unlikely that she would be able to achieve a meaningful post-secondary experience or independent living.” Moreover, “her hobbies and interests showed increased isolation, regression, and withdrawal.” (T. 43) The private evaluation carried out by Private Psychologist stressed a need to focus on the following services: (1) Direct counseling services; (2) Special attention to cognitive skills; and (3) The range of Student’s social and emotional skillset.

More specifically, Private Psychologist’s evaluations included the following excerpt:

It is imperative... that efforts not only target her academic skills and teach organizational skills, but also on an intensive level foster daily living skills and independence, self-sufficiency, and confidence, which all remain at the lowest levels... [Student’s] Autism requires a residential school offering a small, structured 24/7 academic environment, interwoven therapeutic support, and proven intensive remedial language-based curriculum. [The Student] needs to be in a community of peers on a similar developmental level to her own and in an academic setting where there is appropriate academic and vocational instruction for her cognitive needs and autism. Without these appropriate supports, [the Student] is at risk of academic, social, and behavioral regression. (Ex. 9)

Shortly after Private Psychologist’s evaluation was completed, the District and the Parents met for the 2016-17 annual IEP review. Despite these factual findings being disseminated to all members participating in the Student’s IEP meetings (for each school year in question (2016-2017 & 2017-2018)), the District failed to provide for “direct counseling as a special education service to meet [the Student’s] significant needs... [and the] consultant teacher services recommended on the IEP for both’16-’17 and’17-’18 were inappropriate... and the lack of support caused her great anxiety.” (T.45) The denials of a FAPE continue with the District’s failure to provide appropriate parent counseling and training “despite the Parents’ continual outreach and obvious needs.” (T.45) The Student “did not make meaningful progress in improving her reading and writing... [and] she also regressed in her daily living skills.”

After two years of the Student being enrolled within the unilateral placement, Private Psychologist completed a second psychoeducation evaluation of the Student on January 20, 2018. His conclusions in this evaluation include:

[The Student] is clearly benefitting from her placement at a residential school offering a small structured 24/7 academic environment... the 24/7 exposure to peers and an environment taught by special education teachers... has made for significant emotional growth and maturation and a consistently upbeat mood. With the goal of [the Student] being able to live independently as an adult, based on anecdotal reports and [the Student’s] performance across the assessment, [her continued] placement for the next year is appropriate. (Ex. 23)

For example, at the unilateral placement, the Student has exhibited continued progress for the two years that she was enrolled. Academically, she has achieved many of the goals (Ex. HH, II, FFF, LLL, MMM) and her grades were good. (Ex. EEE & NNN) Socially, the Student made friends at the Private Residential School and kept in touch with her friends when she went home. (T. 2183, 2185) She participated in clubs, took a cooking class, ran on the track team, played tennis, and got together with other girls. (T. 2185-2186) Her mother noticed an immediate change in her daughter’s ability to have a back-and-forth conversation. (T. 2189)

Despite this report being provided to the District prior to IEP meetings for the second year, the District refused to reconsider their recommendations, or the conclusions made within the previous IEP meetings.

The Student’s Emotional Fragility Negatively Impacted Her Anxiety and Confidence Resulting in a Fear of School.

Because of the continued failure by the District to implement direct counseling or consider the Student’s cognitive skill levels and social and emotional skills when crafting an IEP, the Student’s socio-emotional capabilities suffered. The District has asserted that they were always aware of the Student’s “developmental disabilities” mentioned in Private Psychologist’s evaluation. (Ex. 9) (T.113-114) Assistant Superintendent of Educational Services for the District laid out the special requirements that the Student would require due to her educational and social deficiencies. (T. 84-92) Despite the conscious awareness of District employees regarding the fragility of Student’s needs, nothing was done to specifically address the Student’s ever-changing needs highlighted in Private Psychologist’s evaluations. Rather, it appears that the District has bundled the Student together with the general population of high-school students when it would be more appropriate to give her individualized attention and services. This is evidenced by the conclusions made at the Student’s triennial evaluations conducted by the District along with the strides made by the Student at her current placement.

Under [IDEA’s] terms, disabled children are to be educated with children who are not handicapped only "to the maximum extent appropriate." 20 U.S.C. § 1412(5)(B). Section 1412(5)(B) explicitly states that mainstreaming is not appropriate "when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(5)(B); see also Rowley, 458 U.S. at 181 n.4.[10]

Hartmann v. Loudoun County Bd. of Educ., 118 F.3d. 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998)

The District put forth a rigorous set of recommendations and programs for this Student in their past IEP meetings. The recommendations could be commendable and would likely be deemed to be appropriate for many other students. But they are not appropriate for this specific Student, and the District did not fulfill their duty to provide an IEP that is tailored specifically to the Student’s needs.

P v. Newington, along with Endrew F. each focus on the specific needs of each student. It is inherently necessary to consider the Student’s personal struggles and level of functioning when crafting such a program, and the District did not do so. Because of this, I conclude that the District’s recommended placements and services were not appropriate for the Student for both the 2016-2017 school year and the 2017-2018 school year.

Prong II

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 (S.D.N.Y. 2010). The Second Circuit has clearly stated:

“… [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

Moreover, parents “may not be subject to the same mainstreaming requirements as a school board.” Frank G. v. Bd. of Ed. of Hyde Park (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000) citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”).

The Parent bears the burden of proof regarding the appropriateness of the educational program in which the Student was enrolled. M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027. In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs. Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement. M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002).

On this record I find support that the Student has a unique profile. In the most recent, contested IEP (Ex. 7), the Student was characterized in the academic domain with challenges in reading comprehension, a need for assistance to make inferences and to answer more complex or abstract questions. Her written expression scores were below average. Her math scores were in the low range, and she presents with receptive language deficits. Cognitively, her scores generally fall in the extremely low range. Her adaptive profile is significantly below expected levels for her age.

Her Private Psychologist encapsulates her personality:

“A maturing adolescent, she possesses the emotional innocence and social naivete of one much younger. Drawn to others, [The Student’s] cognitive deficits, time needed to process incoming information, quirky neurophysiology, inattention and executive dysfunction, and anxiety combine to make for stilted social skills and much self-consciousness in the social arena.” (Ex. I)

The Private Residential School is a fit on several levels. For one, while the placement is outside of New York State, it is New York State approved. (Ex. JJJ) At the residential placement, the Student has exhibited progress for two years. Academically, she has achieved many of the goals (Ex.s HH, II, FFF, LLL, MMM) and her grades were good. (Ex.s EEE & NNN) Socially, the Student made friends at the Private Residential School and kept in touch with her friends when she went home (T. 2183, 2185) She participated in clubs, took a cooking class, ran on the track team, played tennis and got together with other girls. (T. 2185-2186) Her mother noticed an immediate change in her daughter’s ability to have a back-and-forth conversation. (T. 2189) The Student’s Advisor stated: The Student made “significant social emotional progress” has a best friend and can maintain healthy friendships. (Ex. KKK) The Private Psychologist observed that the Student made social/emotional progress when he re-evaluated her in January of 2018 based upon the amount of information she shared and the fact that her conversation was at a more mature level than two years earlier. (T. 1666-1668) He opined: “I really felt she was absorbing things that were being taught to her… between classes, in the dorm, in counseling sessions, reinforced by teachers and other professionals who work with her through the day.” (T. 1694) Also crucial are the improvements in her ADL’s. This was a girl who could not consistently get herself dressed in the morning before school. After attending the Private Residential School, she quickly acquired a routine. (T. 2178-2179 & Ex.s KKK & OOO)

After review of this record, I conclude for both the 2016-2017 school year and the 2017-2018 school year that the Parents have demonstrated that the Private School placement provides educational instruction specially designed to meet the unique needs of the Student, supported by such services as are necessary to permit the Student to benefit from instruction.

Prong III

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985); R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at 7 (S.D.N.Y. Aug. 27, 2010).

In closing, I find that the equities do not warrant a reduction in tuition reimbursement for either year at issue. Contrary to the District’s position, I find that the Parents acted cooperatively with the CSE and the District leading up to the unilateral placement and throughout the hearing process (T. 2094)

The Parents continually shared their concerns about the Student with the District, attended the Student’s CSE meetings, and submitted ten-day notice letters stating their intention to enroll the Student in the Private School.

Conclusion In conclusion, the Student’s negative response to the District’s programs and services is not dispositive of a determination of objective adequacy. Rather, a program is extensive in its course coverage and services, but at the same time it is an inappropriate placement for this student with exceptionally specific needs.

Although ambitious, the District’s recommended program was not crafted in a way that considered the Student’s unique and demanding traits. Because of this, the Student regressed academically, socially, and emotionally until she was placed in the Private School. While there, progress has been documented. Finally, I find no reason to reduce reimbursement or direct payment to the Parents for the Private School.

It is therefore ORDERED The District shall provide reimbursement for payments made to the Private Residential School for the 2016-2017 school year and the 2017-2018 school year upon presentation of properly receipted invoices for same including reimbursement for necessary ancillary items such as club fees and reasonable transportation (i.e. The published federal rate for mileage) for the Student and Parents to and from the Private Residential School, and to the extent that there remains an unpaid balance, direct payment shall be made for tuition.

Dated: September 13, 2021

___________________

Martin J. Kehoe III, Esq.

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] A decision by this IHO entered on December 10, 2018, ordered the District to provide the Parents with full reimbursement for payments made for the 2016-17 and 2017-18 school years. The District appealed to the State Review Office (SRO) on January 15, 2019. On March 13, 2019, the SRO issued a decision sustaining the District’s appeal and reversing the IHO’s decision in its entirety. On July 19, 2019, the Parents filed a complaint against the District in the U.S. District Court alleging that the SRO’s decision reversing the IHO decision was erroneously held. On August 10, 2020, the Court granted in part and denied in part both the District’s motion and the Parent’s cross-motion.

[2] A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents if the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). This framework may be referred to as the three-prong Burlington/Carter Test.

[3] The totality of the record utilized for the purpose of drafting this decision is reflected by the document titled “Certification of Record – Pleasantville – 506849,” included within this casefile. No further evidence nor exhibits were considered.

[4] My findings regarding the District’s Prong I burden turn on the concept of “least restrictive environment” and I endeavor to provide a fact-specific analysis considering whether, with the aid of appropriate supplemental aids and services, education could be achieved in the District’s recommended Individual Support Program (ISP). I direct my findings to the characteristics of the Student and the lack of fit with the District recommendation.

[5] The description of this program and its nuanced approach to learning was extensively developed throughout the hearing. See, for examples: Assistance Superintendent of Educational Services. - T. pp. 91-121, 159-160, 170, 200, 237-238, 674-678, 693-702 Dir. of Special Education B. – 298-301, 303-309, 364-373, 386-393, 423-429, 509-510, 700-701; Private Psychologist. 1167-1169 1294-1297, and Parent-1966, 2070.

[6] For example, regents level coursework was impacting self-esteem, and the Student was experiencing regression in reading and writing. (T. 2010-2011)

[7] The purpose of the IDEA is to provide federal assistance for education of children with disabilities and requires that states receiving such assistance provide disabled students with a “free and appropriate education” in “the least restrictive environment.” The Second Circuit has adopted a two-prong test to determine whether the District’s selected placement is in-fact, the least restrictive environment. The two prongs are as follows: “Whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child;” and “Whether the school has mainstreamed the child to the maximum extent appropriate.” This two-prong analysis must be carried out by the court in an individualized and fact-specific manner to ensure that the Court “maintains a deferential position, ‘with respect to state educational authorities crafting educational [policies].’” Factors have also been fashioned by courts to assist in determining whether a student can be “satisfactorily educated” in a regular classroom under the two-prong Daniel R.R. test listed above. The factors are as follows: Whether the school district has made reasonable efforts to accommodate the child in the regular classroom; The educational benefits available to the child in a regular class, with appropriate aids and services, as compared to the benefits provided in a special education classroom; and The possible negative effects of the inclusion of the child on the education of other students in the class. This by no means serves as an exhaustive list of factors for courts to refer to but is utilized to assist in determining whether the District fulfilled their duty under Prong I of a FAPE analysis.. P. v. Newington Bd. of Educ., 546 F. 3d 111 (2d Cir. 2008).

[8] Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987). The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id. For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176. In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

[9] The Private Psychologist had evaluated the Student on various occasions in the past but had not evaluated the Student from 2011-2016.

[10] ‘Mainstreaming is not required where (1) the disabled child would not receive an educational benefit from mainstreaming into a regular class; (2) any marginal benefit from mainstreaming would be significantly outweighed by benefits which could feasibly be obtained only in a separate instructional setting; or, (3) the disabled child is a disruptive force in a regular classroom setting. Id. at 879... In effect, the court simply substituted its own judgment regarding Mark’s proper educational program for that of local school officials.” DeVries v. Fairfax County Sch. Bd., 882 F.2d 876 (4th Cir. 1989).