Impartial Hearing Decision

Finding of Fact and Decision Case Number: Student’s Name: Hearing Requested By: Hearing Officer: Actual Record Close Date: 172614 Parent Martin J. Kehoe III, Esq. October 6", 2020

DECISION ORDER Case Number: 172614 Student’s Name: Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe III, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. A hearing was held on April 24, 2018; June 13, 2018; August 8, 2018; October 11, 2018; October 24, 2018; November 27, 2018; July 23, 2019; September 12, 2019; November 19, 2019; January 21, 2020; March 24, 2020; March 26, 2020; May 18, 2020; June 5, 2020; June 24, 2020; June 25, 2020; and July 22, 2020. 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. Parent’s Position In the complaint notice, dated February 20, 2018, the Parent alleged that the District failed to provide a free appropriate public education (FAPE) for the 2017-2018 school year. The Parent was seeking tuition reimbursement for the Private School where the Parent unilaterally placed the Student for the 2017-2018 school year, school bus transportation to and from the Private School, and the related services recommended on the last agreed-upon Individual Educational Program (IEP) (Ex. A). District’s Position It is the District’s position that they provided the Student a FAPE for the 2017-2018 school year and that the Parent’s request for reimbursement should be denied (T. 51-52). Student History The Student has a disability classification of speech or language impairment (Ex. C). The Student presents with delays in expressive and receptive language skills. Despite his advancing age, on the Woodcock Johnson Tests of achievement (WJ — IID), the Student had a broad reading score of a mid — third grade range; a broad math score of a beginning fourth grade range; and a writing fluency score in a beginning sixth grade range. The Student had scores in the extremely low range in the areas of verbal comprehension, fluid reasoning, and in the full-scale IQ on the Weschler Intelligence Scale for Children — V (WISC — V). The Student is described as friendly, polite, and cooperative. (Ex. C). The Student has weaknesses in verbal conceptualization, word knowledge, visual spatial, perceptual motor integration/synthesis, nonverbal abstract reasoning, nonverbal quantitative reasoning, short-term auditory concentration and memory, and graphomotor rote copying (Ex. 4). Background of the case The District conducted a Level I vocational interview with the Student on December 6, 2016 (Ex. 3). The District also conducted a psychoeducational evaluation on the same day (Ex. 4). A CSC meeting was held for the Student on March 2, 2017 and an Individualized Educational Program (IEP) was developed. The IEP recommended a 12:1:1 special class in a District Special School; individual counseling; individual occupational therapy; and individual speech language therapy. (Ex. C). The CSE Chair wrote a letter to the Parent, dated June 29, 2017, in reply to the Parent’s letter, dated June 22, 2017, in which the Parent disagreed with the CSE’s recommendations at the CSE meeting. The Chair stated that the CSE considered the recommended program appropriate. The Chair asked the Parent to provide any updated documents to the District, then they would review them, and either contact the Parent or schedule a new meeting (Ex. 5). Analysis A board of education may be required to remmburse 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 vy. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep't. of Educ., 471 U.S. 359, 369-70 (1985). 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 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 accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a]]{1)). The District maintains that they offered the Student a FAPE in the 2017-2018 school year (T. 189). But they did not call any witnesses to defend their position. The District did submit evidence, including the IEP from the school year at issue. The Parents assert that the IEP did not offer the Student an appropriate program for the 2017-2018 school year and assert that there were omissions in the JEP of information from a private school placement, that the program recommendation could not meet the Student’s needs, that there were procedural violations in the CSE process that effectively impacted parental participation, inter alia. 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 II I must 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Ci. 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. vy. 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 is for students with special needs, ages 11 to 21, with a wide range of disabilities. The school offers a vocational program with job coaches and internships. Twelve-month instruction is available each school year for students who are mandated for a 12-month program on their IEP. In the 2017-2018 school year, the Student was in a class of 13 students with one teacher, and five paraprofessionals. He was grouped with students with similar academic, social, and emotional levels. He received related services of speech and language and occupational therapy. The Student took classes in the core subjects of science, ELA, US history, math, world events, health and hygiene, and technology. The curriculum, based on The New York State core curriculum and New York State Career

Development and Occupational Studies (CDOS) curriculum, is adapted to the level of the students. The Student also received adaptive adapted physical therapy. The Student received vocational programming and classroom — based CDOS instruction and participated in an internship twice a week at work sites in the community with a 1:1 job coach. He was working toward a CDOS credential. The Student’s lunch was in the community at restaurants, with other students from the school, mainstream students from a general education high school, and faculty. This enabled the students to practice travel training, social skills, budgeting, money math, and communication skills. The Student showed progress in reading comprehension, learning to identify a story’s main idea, categorizing facts and opinions, and making predictions. He demonstrated retention and understanding of what he learned in science, government structure, and world events. He also showed improvement in self — advocacy skills and confidence (Ex. L). The Student showed improvement in class participation, offered to read out loud in class, and volunteered to answer questions. (Ex. G). Accordingly, I find that the placement provided educational instruction specially designed to meet the unique needs of the Student. Moreover, the Parent established that such services as are necessary to permit the Student to benefit from instruction. Prong Hl 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 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. § 1412fa]}[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][iii][T] ; 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}) The Parent’s advocate sent a 10-day notice letter to the Committee on Special Education (CSE), dated August 16, 2017, stating the Parent’s intention to enroll the Student in the Private School and seek tuition reimbursement and/or direct payment. (Ex. D). The Parents cooperated with the District, and there are no issues with Prong II. It is therefore ORDERED The District shall provide reimbursement/direct funding Ahe eyScho ol and invoices. Dated: October 6, 2020

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.