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Special Education Law
DECISIONParent PrevailedIHO Case No. 194019

New York City Department of Education, Impartial Hearing Decision

January 6, 2022·Martin J. Kehoe III·New York City Department of Education

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

CASE NUMBER: 537218 - NYC: 194019

Findings of Fact and Decision

Case Number: 194019

Student’s Name: Redacted

District: Redacted

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: January 06, 2022

Table of Contents

I. Introduction 2

II. Overview 2 a. Parent’s Position 3 b. District’s Position 4 c. The Scope of the Impartial Hearing 4 d. Background of the Case 5 e. Student History 5 f. Legal Overview 6

III. Prong I 8 a. Procedural Standard 8 i. Procedural Issue: Was the Parent allowed to meaningfully participate in the development of the IEP? 9 ii. Rule 9 iii. Analysis 9 iv. Conclusion 12 b. Substantive Standard 12 i. Substantive Issue: Was the placement recommendation for the Student appropriate? 13 ii. Rule 13 iii. Analysis 14 iv. Conclusion 17

IV. Prong II 17 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School? 17 b. Legal Standard 17 c. Analysis 18 d. Conclusion 19

V. Prong III 19 a. Legal Issue: Did the Parents Cooperate with the District? 19 b. Legal Standard 19 c. Analysis 21 d. Conclusion 21

I. 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 parent(s) as Parent(s) and the student will be referred to as Student.

II. Overview

This is a “reimbursement” case. 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). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

The Parents filed the complaint notice on May 24, 2020. (Ex. A) I was appointed as the IHO on October 21, 2020. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-P into the record and called four witnesses: the Parent/Mother, the Parent/Father, the School Head, and the Neuropsychologist. The District introduced exhibits 1-16 into the record and called three witnesses: the Assistant Principal, the Special Education Teacher, and the CSE Chairperson. a. Parent’s Position The Parents allege the District failed to provide the Student with a Free Appropriate Public Education (FAPE) for the 2019-2020 SY. Specifically, the Parent’s assert the Committee on Special Education (CSE) did not provide the Student with an appropriate IEP for the 2019-2020 SY. The Parent’s seek Placement of the Student at the Private School, tuition reimbursement for the 2019-2020 SY, transportation costs, compensatory education, and reimbursement for the cost of any evaluations obtained at the Parent’s expense. The complaint notice particularized numerous issues:

  • • The Parent voiced disagreement at the meeting and reiterated her concerns in a letter to the chairperson on October 24, 2019, that the proposed program was inappropriate for her child. However, these concerns were ignored by the team, depriving the Parent of meaningful participation in the review.
  • • The CSE failed to conduct adequate evaluations or to collect appropriate data on which to base its recommendation.
  • • Upon information and belief, the IEP failed to sufficiently identify the Student’s present levels of functional performance and include corresponding goals required to address the student’s identified needs. The IEP failed to adequately describe the Student.
  • • The goals were written at the meeting, depriving the parent of meaningful participation.
  • • The goals and IEP were not reasonably calculated to confer educational benefit upon the student.
  • • The goals fail to indicate baseline and target grade levels of performance.
  • • The CSE failed to consider appropriate methodology for the Student.
  • • The recommendation is contrary to the opinions of the professionals and educators who have direct knowledge of the Student’s needs.
  • • The program recommended does not offer adequate or appropriate instruction, supports, supervision, or services to meet the Student’s unique needs in order to make educational progress.
  • • The class size and the student-teacher ratio are too large for the Student to benefit educationally.
  • • The staffing ratio is inappropriate for the Student to benefit educationally.
  • • The IEP does not provide sufficient opportunity for one-on-one instruction or attention.
  • • The CSE failed to recommend an appropriate program, thereby denying the Student a FAPE.

The central issue in this case, and the one that I find to be dispositive, is whether the program and recommended placement was appropriate for the Student’s needs. b. District’s Position The District maintains that they provided the Student with a FAPE. Once notified of the Parents’ concerns, they sought consent to evaluate and did so. They convened a CSE meeting and offered an integrated co-taught class (ICT). This, they claim, is appropriate. c. The Scope of the Impartial Hearing The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Disst., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint notice are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be contemplated as they are considered abandoned[2]. Application of a Child with A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9. d. Background of the Case The Parents sent a letter to the District on August 13, 2019, in which they requested a FAPE for the Student, informed the District they enrolled the Student at the Private School, and asked what the steps were to obtain an Individualized Educational Plan (IEP). (Ex. B-1) Consent for the initial evaluation of the Student was provided on August 15, 2019 (Ex. 12) and District evaluations were conducted on August 27, 2019. (Ex.s 2, 3 and 4) An IEP was developed for the Student on October 17, 2019. (Ex. 8) On October 24, 2019, The District provided a Prior Written Notice (Ex. 10) and a School Location Letter. (Ex. 11) That same day the Parents’ sent the District an IEP rejection letter, stating their intent to keep the Student enrolled in the Private School. (Ex. C-2) The Parents stated in the letter that the recommended program for the Student did not provide sufficient academic support, individualized attention, or an appropriate staffing ratio for the Student to make consistent educational progress. (Ex. C-2) e. Student History The Student has a Disability Classification of Other Health Impairment[3]. (Ex. 8-1) The Student was redacted years-old at the start of the 2019-2020 SY, and was described as creative, funny, and bright, and enjoys playing the drums and the guitar. (Ex. E-1, E-3) On January 14, 2019, the Student underwent a neuropsychological evaluation. (Ex. E) The Student was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD); Specific Learning Disorder, with impairment in mathematics; and Other Specified Depressive Disorder. (Ex. E-17) f. Legal Overview 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). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[4]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation (IEE) of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

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.

III. Prong I a. Procedural Standard 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 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. i. Procedural Issue: Was the Parent allowed to meaningfully participate in the development of the IEP? ii. Rule The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015], SRO 21-171.

iii. Analysis

Parent/Father Testimony The Parent/Father testified by affidavit that the Parents participated in a CSE meeting for the Student on October 17, 2019. (Ex. O-5) He stated that they explained to the CSE that the Student would not be successful in a large class because the Student is distractable and needed a supportive environment. (Ex. O-5) The Parents also expressed concern that the Student lacked the appropriate foundation for a general education 8th grade class, as the Student was one grade level behind in math and two grade levels behind in reading and writing. (Ex. O-5) The Parents were also concerned about the Student’s social and emotional health.

The Parent/Father alleged they were not given the opportunity to participate in creating educational goals and objectives for the Student because goals were never discussed at the CSE meeting, their expressed concerns from the Neuropsychologist were ignored, and that the CSE team failed to consider the Parents’ input. (Ex. O-6)

Special Education Teacher Testimony

When asked whether the goals for the IEP were written at the meeting or after the meeting, the Special Education Teacher was only able to provide information about her general practices and procedures for writing down the goals at the meeting but was unable to provide a straight answer as to whether in this case they wrote the goals at the meeting. (T. 155-156)

Given this testimony, once could conclude that the Parents’ role was marginalized. While an IEP team does not have to adopt a parent's views, it must give due consideration to the parent's input. E.H. v. N.Y.C. Dep’t of Educ., 164 F. Supp. 3d 539, 551 (S.D.N.Y. 2016).

On the other hand, given the circumstances in this case, the better rule is more broadly construed standard from T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at 5 [S.D.N.Y. Sept. 23, 2015]: “Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation.” (see; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 [S.D.N.Y. July 30, 2015]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] [noting that "[a] professional disagreement is not an IDEA violation"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] [finding that "[m]eaningful participation does not require deferral to parent choice"]).

Even assuming that the goals were prepared without direct Parental input constituted a procedural error, there is no evidence that this omission resulted in the denial of a FAPE. First, the Parents did participate. The Father attended the relevant CSE meeting and testified that the made his concerns known to the CSE (Ex. O paragraph 26, 28 & 29). He was accompanied by an advocate (260) and personnel from the Private School were also in attendance. (T. 259)

In terms of the allegations that the goals were somehow deficient, I find otherwise. The goals that are contained in the IEP are specifically tailored to the Student’s deficiencies[5]. They appear to be achievable and relevant to the Student based upon the Student’s reported present levels of educational performance and the neuropsychological evaluation submitted to the CSE by the Parents. Moreover, they are time sensitive with stated intervals of evaluation and progress reporting. iv. Conclusion

After consideration of the procedural issues raised by the Parents I find that, even if they amount to technical violations, they do not result in a denial of a FAPE. Specifically, any alleged violation did not 1) impede the Student’s right to a FAPE, 2) significantly impede the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE, or 3) cause a deprivation of educational benefits. b. 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)

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This 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]).

The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. i. Substantive Issue: Was the placement recommendation for the Student appropriate? ii. Rule In short, IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This 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 be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

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. 16-028; SRO No. 11-091; SRO No. 11-053 iii. Analysis

Neuropsychological Evaluation In this case the District failure lies in their lack of responsiveness to the recommendation of the Neuropsychologist: “... given [the Student’s] combination of attention and executive difficulties, math weaknesses, and mood symptoms, he needs to be in a structured classroom with a small, student-to teacher ratio, and with students who have age­ appropriate cognitive capacity.” (Ex. 5 p. 18)

To be clear, I find the shortcoming in the District’s failure to address the recommendation for the “small, student-to-teacher ratio” and the placement with other students who have “age-appropriate cognitive capacity”. Distinguish this from the other aspects of the District case that do seem to be appropriate. For two examples, the goals and objectives in the IEP (above) or the management needs that were provided in the IEP. (T. pp. 286-287)

The Neuropsychologist’s evaluation highlighted a concern for the Student’s psychological functioning. (Ex. E-17) The Student’s attention and behavior control issues were highlighted by the following: BASC-3, Attention Problems: 96th-97th percentile, Hyperactivity 90th-96th percentile; and BRIEF-2, overall executive functioning 88th-98th percentile. (Ex. E-9)

The Student harbors insecurities about his academic performance and self-competence, which paradoxically impact his achievement and mood in a negative way, which further exacerbate the Student’s executive difficulties during social or performance related situations. (Ex. E-17) Additionally, the Student’s mood and regulatory issues were found to impair his information processing. (Ex. E-17) The Neuropsychologist found that the Student would benefit from interventions aimed at reducing arousal and mood symptoms, teaching him how to manage these feelings, improving upon his self-esteem, and coming up with more flexible interpretations during times of stress. (Ex. E-17)

Neuropsychologist Testimony The Neuropsychologist testified by affidavit that the Student presented weaknesses in processing speed, working memory, executive functioning, and efficiently processing information. (Ex. P-3) The Neuropsychologist also testified that the Student presented the following academic weaknesses: oral reading fluency, rapid naming automaticity, difficulty identifying “big picture” ideas as he read, language organization, combining written ideas in paragraph form with clarity and organization, weakness in understanding quantitative concepts, weak attention and executive function skills, and weakness in self-generated planning, problem solving, simultaneous processing, and mental flexibility. (Ex. P-3, P-4)

Based on his evaluations, the Neuropsychologist recommended the Student be placed in a structured classroom with a small student-to-teacher ratio; a full, challenging curriculum; targeted special education and executive support; and nurturing supportive staff who understood the Student’s strengths and weaknesses along with his social emotional profile. (Ex. P-5)

The Neuropsychologist was familiar with multiple DOE ICT classroom settings (T. 284) In his affidavit he opined: “the DOE’s recommended program of ICT for each subject and SETSS for Math 3 times per week was insufficient to meet [the Student’s] complex constellation of needs and, therefore, inappropriate for him for the 2019-20 SY.” (Ex. P-7 Paragraph 27)

During his testimony the Neuropsychologist explained his opinion why an ICT Class would be inappropriate:

“Well, when I saw [the Student] he was struggling to get through the tasks that we were doing even in a one-on-one sort of controlled setting. [The Student] is the type of kid who more than just the average kid with ADHD and some learning difficulties needs very frequent one-on-one support and explicit instruction about how to improve in areas of executive functioning. He struck me as the kind of kid who would really struggle to make progress in a setting that did not have a small student-to-teacher ratio and was not the kind of academic setting where, you know, a couple of times a week you can meet with somebody one-on-one who could help him plan out his assignments, and manage his time effectively, and then learn the kinds of strategies that he would need in order to be a successful student independently. (T. 289)

CSE Recommendations The CSE recommended the Student be placed in the Public School in an Integrated Co-Teaching (ICT) Class. (Ex. 8-14, 8-15) The District responded to the Parent’s concern that an ICT class was too large for the Student by stating that the Student’s needs could be met in an ICT class. (Ex. 8-16)

However, we find from the District’s own witness that there is as much a s a 100 percent variance in the class size available at an in-district ICT class and the class size that the Student accessed at the Private School (The cap is 24 in-district, and the range is from 12-14 students at the Private School (T. 147)

Importantly, it appears the District never even considered a smaller classroom setting as recommend by the Neuropsychologist, See the IEP that reports the only other option considered was a general education classroom, (Ex. 8-16) iv. Conclusion

A review of this record does not support a response to the recommendation of the Neuropsychologist nor does it adequately explain the District’s recommendation. I find that the District’s recommended program was not reasonably calculated to confer educational benefits upon the Student. I, therefore, find for the Parents on Prong I.

IV. Prong II

  • • Legal Issue: Did the Parents Establish the Appropriateness of the Private School?

b. Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. 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").

c. Analysis

From the Parents exhibits one is offered a general overview of the educational environment of the Private School.

The Private School offers a tracking system to create an environment where students are grouped according to their ability. This allows [the Private School] to place students in tracks that are appropriate for them and also allows for flexibility if students move to another track during the year without disrupting that student's schedule. A student who has challenges in math could be in a slower track, and that same student could have strengths in English and be placed in a higher track. This is to ensure that the student is being challenged appropriately. Due to the emotional fragility that sometimes accompanies learning issues, [the Private School] also employs two experienced psychologically qualified personnel on a full-time basis. (Ex. K-1)

The Private School has also created a flexible “Distance Learning Plan”:

We believe that instruction and therefore education can occur online. Teachers will deliver helpful instruction through video conferencing and meaningful assignments for homework. These assignments and assessments will be designed for an online environment. It is imperative that students and teachers establish a routine based in our schedule and a rhythm established by clear expectations. (Ex. L-5)

School Head Testimony

Specific to the Student in this case, the School Head testified by affidavit that the Student had received the following supports: scaffolding and chunking during lessons, prompting/redirection/visual cues, repeated instructions/routines, step by step strategies, modeling skills and guided practice during instruction, 1:1 meetings with teachers, and structured writing instruction with use of consistent graphic organizers. (Ex. M-7) The School Head said that the supports received by the Student enabled him to make meaningful progress and that the Student had benefitted from small class sizes with consistent 1:1 attention from teachers. (Ex. M-7, M-8) Specifically, the School Head stated that the Student saw improvement in the following areas: executive functioning skills, time management skills, ability to focus, and writing. (Ex. M-7, 8) d. Conclusion

I find that the Private School was an appropriate placement for the Student that addressed his special education needs and allowed him to make progress.

V. Prong III a. Legal Issue: Did the Parents Cooperate with the District? b. Legal Standard

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. § 1412[a][10][C][ii]; 34 CFR 300.148[6]). 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][I]; 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]) c. Analysis The Parent participated at the Student’s CSE meetings and shared her concerns. The Parents sent a ten-day notice letter dated October 24, 2019, for the 2019-2020 SY. (Ex. C-1) The father also testified at the hearing and spoke well for the Parents cooperative posture throughout the proceedings. I find that the Parents cooperated with the District. d. Conclusion

It is therefore ORDERED

For the District to reimburse the Parents and/or directly pay the Private School for tuition at the Private School for the 2019-2020 school year along with transportation and related service fees upon presentation of invoices for same.

Dated: January 6, 2022

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] Scheduled hearings related to the case were held on: December 2, 2020; January 20, 2021; January 26, 2021; February 26, 2021; March 5, 2021; April 19, 2021; April 26, 2021; May 3, 2021; May 12, 2021; May 26, 2021; June 11, 2021; July 27, 2021; and September 23, 2021.

[2] This case also involves a demand for “compensatory education” for the 2018-2019 School Year (SY). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. There is also an assertion that the District failed in their “child find” obligations for the 2018-2019 SY. The child find provision of the IDEA places an affirmative duty on school districts to develop policies and procedures to identify, locate, and evaluate students with disabilities, including students in private schools, “to ensure that they receive needed special-education services.” (Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009); see 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a); Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir. 2006; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 224-25 (D. Conn. 2008), aff'd, 370 Fed. App'x 202 (2d Cir. Mar. 23, 2010); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 (N.D.N.Y. 2004).) After reviewing the record on these issues, I find them to be peripheral to the reimbursement claim and while not technically abandoned, there is a paucity of convincing proof and I dismiss each of these claims.

[3] NYCRR Part 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart 200.1 16 condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

[4] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[5] Reading goals: [the Student] will improve fluency skills by reading instructional-level text orally, with accuracy, appropriate rate and expression, as measured by teacher records on three consecutive occasions. [the Student] will increase stamina during reading by using a timer to track how long he reads for. [the Student] will read silently and independently in 10 minute increments and take a break in order to maintain focus and improve comprehension. Within one year, [the Student] will identify graphic and visual cues used to find information and clarify understanding (e.g., glossaries, summaries, questions in text, outlines, sidebars, navigation bars, and hyperlinks). (Ex. 8-6, 8-7) Writing Goals: With the use of checklists, [the Student] will vary sentence structure in written assignments by using simple, compound, complex and compound-complex sentences and different kinds of sentences (i.e. declarative, imperative, etc.). Given grade level writing prompts, [the Student] will correctly write a paragraph using a topic sentence, body sentences, and conclusion/transitional sentences. (Ex. 8-8, 8-9) Math Goals: Within one year, [the Student] will demonstrate automaticity with multiplication facts through base of 12 and proficiency with related division facts, using the basic facts to compute fact extensions (e.g. 30x60). Within one year when provided instructional level multi-step word problems, [the Student] will: identify the information needed, identify the correct operation, set up the math problem and solve the problem correctly. (Ex. 8-9, 8-10) Time Management Goals: [the Student] will improve time management skills by consistently prioritizing assignments, allot a time within which to complete the assignments, and remaining with the plan, for both daily and long-term assignments. (Ex. 8-10) Attention Goals: [the Student] will participate in a natural learning environment from start to finish, specific mental functions that require task switching, sustained attention and divided attention functions, with utilization of learned strategies to improve functional curricular and extra-curricular independence. (Ex. 8-10)

[6] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))