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Findings of Facts and Decision Case Number: 169717 Student’s Name: Hearing Requested By: Parents Hearing Officer: Martin J. Kehoe IIL, Esq. Actual Record Close Date: 12/12/20
Introduction The Parents filed a complaint notice dated September 19, 2017 (Ex. B), and an amended complaint notice, dated November 16, 2017 (Ex. A). A pendency hearing was held on October 18, 2017 and I issued a pendency decision. A hearing was held on March 21, 2018; April 10, 2018; May 30, 2018; July 31, 2018; October 4, 2018; December 19, 2018; January 22, 2020; September 15, 2020; and October 21, 2020. The parties were in settlement negotiations but by the August 28, 2020 hearing date, they decided to go forward with litigation and the Parents entered exhibits and proffered testimony. Overview I will briefly apply a three-prong analysis to this case, examining first whether the District met its burden to demonstrate the appropriateness of their program, second whether the Parents met their burden to demonstrate the appropriateness of the placement at Private School, and third whether equitable considerations favor the District or the Parents in this matter. Parents’ Position In their amended complaint notice, the Parents alleged that the District failed to provide a free appropriate public education (FAPE) for the 2017-2018 school year, and were requesting prospective tuition payment/reimbursement starting on September 1, 2017 for unilateral placement by the Parents in the Private School for the 2017 — 2018 school year (Ex. A). The Parents alleged that the District failed to evaluate the Student and provide him with an appropriate placement (Ex. A). District’s Position It is the Districts position that they offered the Student a FAPE for the school year at issue (T. 72). They decided not to put on a case because their witnesses were not available, but challenged the Parents’ unilateral placement (T. 72). Student History The Student was evaluated by the District on October 25, 2017. On the Weschler Intelligence Skill for Children—fifth edition (WISC-V), the Student had a full-scale IQ, verbal comprehension index, visual-spatial index, working memory, and processing speed index in the extremely low range. On the Weschler Individual Achievement test — third edition (WIAT — III), the Student had scores in the word reading subtest in the below average range, in the pseudoword decoding subtest in the average range, and in the reading comprehension subtest in the lower average range. The Student’s math calculation skills were in the low range and the Student’s math problem solving score was in the very low range. On the Vineland Adaptive Behavior Scales, second edition, the Student had an adaptive behavior composite score in the low range, a receptive communication subdomain level in the low range, an expressive communication subdomain level in the moderately low range and a written subdomain level in the moderately low range. The Student has difficulty maintaining focus (Ex. J). The Student’s scores in daily living skills and socialization were in the low range (Ex. I). Nevertheless, the Student is relatively sociable, enjoys spending time with peers, and is respectful toward adults (Ex. J). Background of the Case The Parent testified by affidavit that at the beginning of the 2017-2018 school year, the Student did not have an IEP program and his last program was created in September 2013. The Parent testified, “I had no services for [the Student] for so many years and I did not know how the process worked to get the proper services for [the Student.]” She said that when she heard of the new program at the Private School during the summer of 2017, she asked the school staff to help and they faxed her letter to the District requesting an IEP in a special education classroom (Ex. L). The Parent wrote a letter, sent by fax on August 28, 2017, stating that the Student requires a full-time special education classroom, and requesting an IEP and placement for the 2017-2018 school year (Ex. K). According to the Parent, an IEP was not developed for the Student until January 16, 2018, and so she decided to unilaterally place the Student in the Private School for the 2017-2018 school year (Ex. L).
Recommendations The Neuropsychologist recommended “a small, full-time special education setting targeting the needs of bright Student’s with dyslexia.” He also recommended specific services and accommodations (Ex. C-11-12) Prong I 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 y. 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)
The District maintains that they offered the Student a FAPE in the 2017-2018 school year. But they did not call any witnesses to defend their position. The District did not submit evidence, including the IEP from the school year at issue. The Parents assert that the IEP (Ex. H), that they did submit did not offer the Student an appropriate program for the 2017- 2018 school year and that the program recommendation could not meet the Student's needs. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16- 028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). In this case the District did not demonstrate that their program was appropriate for the Student. Rather I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation. I, therefore, rule for the Parents on Prong I.
Prong It 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 Il, 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 y. 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 Private School special education program is for students with learning, attentional, and behavioral disabilities. It provides a modified general education curriculum through a flexible and comprehensive inter-disciplinary approach; using structured, multi-sensory experiences in all subject areas; direct teaching; and instruction of skills in small, sequential steps. Speech language therapy is available and integrated into the program (Ex. C). The Program Supervisor at the Private School testified that the school provided the Student academic accommodations, including individualized attention, repetition and/or rephrasing of instruction, modified instruction and materials; an emphasis on language skills and functional communication; prompts and redirection to remain focused; social skills instruction and opportunities for implementing social interactions and emotional regulation with prompts; a structured behavior plan; a predictable schedule and structured program; support with transitions and initiating tasks; a curriculum plan that incorporated language skills across all domains; classroom instruction broken down into the simplest parts; accommodated materials for reading assignments and graphic organizers for written compositions; an environment with opportunities to socialize with general education students and appropriate peer models; speech therapy for two individual half hour sessions per week and one half hour session in a group per week; a functional behavior assessment and behavior intervention plan; movement breaks at regular intervals; opportunities to participate in sports and other extracurricular activities. (Ex. M). The Program Supervisor at the Private Schoo] testified that during the 2017-2018 school year, she often saw the Student, but the amount of time varied each week (T. 95-96). She was involved in creating the curriculum for the Student (T. 97). The 2017-2018 school year was the Student’s second school year at the Private School (T. 99). She testified that when the Student began the 2017-2018 school year, he still had issues with compliance, challenges in his functional level, and behavioral challenges (T. 102). She testified that the Student made “significant” progress, but still had challenges in all areas: “cognition, math, reading, writing, socialization, fine — motor, reasoning skills, memory” (T. 103). When asked how the Student’s progress was measured, she responded, with teacher tests, teacher observations, reports, report card, incremental and quarterly reports, and an electronic system that recorded his behaviors and if they interfered (T. 103 — 104). She testified that although the Student did not reach grade level at the end of the year, he did achieve a single grade level above that year (T. 104 — 105). According to the Program Supervisor, the Student made “meaningful progress”; for example, the Student improved his task — completion, increased the duration and frequency of maintaining focus, demonstrated greater self — control, improved his social skills, and was better able to follow classroom tasks when given simple instructions (Ex. M). I find that the Private School was an appropriate placement for the Student and he made progress. See pages 109, 113-114 for schedule and page 127-129, and Ex. C. She testified that approximately 70% of the school day was secular and 30% was religious (T. 129). The Parent testified that she did not make any payments for the 2017-2018 school year (T. 152). Prong Ili As a final point, 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 parents where 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 US. 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)). Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C]|iti][1] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) In this case, the Parent wrote a letter, sent by fax on August 28, 2017, stating that the Student requires a full-time special education classroom, and requesting an IEP and placement for the 2017-2018 school year (Ex. K).Given my understanding that there had not been a revious recommendation, this notice was not entirely fair to the District. Notwithsdtanding, there was no testimony from the District explaining the wait until Student until January 16, 2018 for their recommendation. Analysis Even though the District maintains they did provide the Student a FAPE, they did not present a case to defend their program. Their reason for not doing so was because their witnesses were not available but there has been a lack of quantifiable efforts by the District to obtain witness testimony relating to this issue. There is no evidence to support the District offering the Student a FAPE for the 2017-2018 school year. I credit the testimony of the Private School Program Supervisor that the Private School program was appropriate for the Student and enabled him to make progress during the 2018-2019 school year. I therefore rule for the Parent on Prong II. I have reduced the overall award by the stipulated amount of 30% for the non-secular portion of the curriculum and by another 10% for the late notice to the CSE of the intention to seek tuition reimbursement. While the CSE was familiar with the Student from years of creating Individual Education Service Plans pursuant to NYS Education Law 3206 (c), the 2017- 2018 school year appears to be the first time that the Parents were asking the CSE to create a full-time public school placement or pay for the private tuition.. Although I make no 10 finding that the Parents acted inequitably, 1 believe it is unfair , under these circumstances to hold the District responsible for one hundred percent of tuition reimbursement. It is therefore ORDERED The District shall provide reimbursement/direct funding for sixty (60) percent of the funding for the Private School for the 2017-2018 school year yy sentation of pe Ly — proper invoices. a , Y Dated: December 12, 2020 df Ve Va Martin J. Kehoe III, Esq. Impartial Hearing Officer 1]
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:/Avww.sro.nysed.gov. 12