New York City Department of Education, Impartial Hearing Decision

FINDING OF FACT AND DECISION Case Number: Student’s Name: Hearing Requested By: Hearing Officer: ARCD: 11/12/20 186443 Parent Martin J. Kehoe III, Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) 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 November 25, 2019; December 11, 2019; December 17, 2019; February 4, 2020; March 31, 2020; April 28, 2020; May 1, 2020; and May 27, 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 September 3, 2019, the Parent alleged that the District failed to provide a Free and Appropriate Public Education (FAPE) for the 2019-2020 school year. The Parent is seeking funding/reimbursement for the Private School where she unilaterally placed the Student (Ex. A).

District’s Position The District did not present a Prong I Case (T. 30). They did however submit two documents. The Parent’s nuero-psychological evaluation (Ex. 2) and an JEP (Ex. 1). Student History The Student has been diagnosed with attention deficit hyperactivity disorder, combined presentation; specific learning disorder with impairment in reading fluency; specific learning disorder with impairment in written expression; and specific learning disorder with impairment in mathematics calculation. (Ex. C). The Student has a full-scale IQ in the average range, a verbal IQ in the average range, and a non-verbal IQ in the average range (Ex. C). Recommendations The Neuropsychologist who evaluated the Student recommended placement, “in a very small, structured special education program and classroom for students of average intelligence with learning disabilities, where their deficits related to ADHD and Specific Learning Disorder can be addressed. . . [The Student] requires full-time instruction by highly qualified teachers with specialized training and extensive experience in working with students diagnosed with Specific Learning Disorders and ADHD” (Ex. C). The Neuropsychologist also recommended multi-sensory reading instruction for at least 60 minutes two times per week by a teacher certified in Orton-Gillingham reading instruction and listed specific accommodations for the Student. (Ex. C).

Background of the Case The Parent testified that the District did not hold a Committee on Special Education (CSE) meeting for the Student or recommend a placement for her before the beginning of 2019- 2020 school year. The Parent sent a 10-day notice to District in August 2019, but the District did not respond, and the Parent sent the Student to the Private Schoo! (Ex. L). The Student’s Family Nurse Practitioner sent a letter to the District, dated September 16, 2019, stating that the Student was being treated for a disability, asked for her diagnosis to be taken into consideration, and filled out a form for medical accommodations for transportation (Ex. D). 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 tecommended 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 2019-2020 school year (See IHO #1). But they did not call any witnesses to defend their position. The District did submit evidence, but it was an IEP from a previous year. Not from the school year at issue. 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 they offered a timely or appropriate program Rather I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members, if any, 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 Parent met her 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 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 is for students in grades 4-12 with learning difficulties including: dyslexia, non-verbal learning disabilities, and executive functioning difficulties. The school provides intense skills remediation and individualizes a program to meet the students’ needs. Students are instructed in groups of an average of ten students and meet with a focus-teacher for 1:1 instruction in skill development for 45 minutes each day (Ex. K). The Dean of Students at the Private School testified that the Student is in a group of seven students that have similar profiles of academic and executive functioning weaknesses. The Student’s curriculum is focusing on reading comprehension, written expression, foundational math skills, academic problem solving, and executive functioning (Ex. K, T. 57). The Dean also testified the Student is in a group of nine students for math, who have similar skills. The Student meets with a social group of peers for 45 minutes per week during recess to develop her social skills, group participation, and non-verbal language skills (Ex. K). The Dean testified that the Student, “is making significant progress educationally despite her disabilities, and her skills are growing stronger as a result of the individualized supports and interventions we have put in place” (Ex. K). After the school closed because of coronavirus, the Student's classes were held live online with the same teachers and classes (Ex. K, T. 61). The social skills group also continued to meet online (T. 63). The Student made progress at the Private School. For example, the Student’s winter progress report noted her improvement, “in her ability to sustain attention, complete larger quantities of homework, and organize her materials”. “{The Student] has learned how to more effectively utilize active reading strategies to increase her comprehension of texts...additionally the Student is often able to identify story elements and generate summaries...{the Student’s] ability to interpret figurative language and make inferences is continuing to develop. . . [the Student] is developing a stronger understanding of paragraph structure and using pre-writing methods and transitions to strengthen organization and clarity of written language”. In math, “She consistently utilizes given strategies and has made significant improvements in her problems solving skills (Ex. I. The Student’s fall report card also demonstrated her progress (Ex. J). The Parent testified: “[The Student] continues to make progress [in] all areas, and her self-confidence continues to grow. | feel the program she is receiving at [the Private School] is appropriate to meet her needs” (Ex. L). Accordingly, I find that the placement provides 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 Il 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; sce 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; MP.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][ii][] ; 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 [ist Cir. 2004]) In this case I find that the Parent cooperated with the CSE. The Parent sent a letter to the CSE Chair, dated August 21, 2019, stating her intention to place the Student in a Private School and seek funding if the District did not offer an appropriate placement and program within 10 business days (Ex. B).

Analysis 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, ifthe 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. Dept. of Educ., 471 U.S. 359, 369-70 (1985). The District argues that they provided the Student with a FAPE for the 2019-2020 school year, that the Private School was an inappropriate placement for the Student, and the equities do not favor the Parent. The District did not submit any evidence or call any witnesses to defend their program for the 2019-2020 school year. The District failed to recommend a program and placement prior to the beginning of the 2019-2020 school year. The Parent cooperated with the District and submitted a ten-day notice letter in August 2019. I credit the testimony of the Parent and the Dean of Students at the Private School who testified about the Students program and progress at the Private School. I find that the school was appropriate for the Student and addressed her disabilities (CADHD; and specific learning disorder in reading, fluency, written expression, mathematical calculation). The school addresses the student’s deficits in these areas and her skills and attention issues improved (see progress report, Ex. I). I therefore rule for the Parent in this Case.

It is therefore ORDERED The District shall reimburse/direct pay the Parent/Private School for tuition to the Private school for the 2019-2020 school year, upon presentation of proper invoices for same. Martin J/Kéhoe III, Esq. Impartial Hearing Officer Dated: November 12, 2020 10

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. 11