New York City Department of Education, Impartial Hearing Decision

SED # 545343 NYC # 201927

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 201927

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: September 24, 2020

Hearing Dates: November 18, 2021

January 13, 2022

Actual Record Close Date: January 29, 2022

Decision Date: February 12, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2021

For the Student:

[Redacted], Parent Advocate

[Redacted], Parent

For the Department of Education:

[Redacted], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2022

For the Student:

[Redacted], Parent Advocate

[Redacted], Parent

[Redacted], Principal

For the Department of Education:

[Redacted], District Representative

[Redacted], School Psychologist

[Redacted], Assistant Principal

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about September 24, 2020, regarding the 2020/21 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2020/21 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on October 1, 2021. A prehearing conference was held on October 18, 2021, to discuss the issues in the case. The hearing was scheduled to begin on November 18, 2021, but there were technical difficulties with the District’s phone lines and we needed to adjourn. The hearing then continued on January 13, 2022, and concluded that day (See, Transcripts).^[2] The District presented exhibits and two witnesses. The Parent presented exhibits^[3] and two witnesses. The District did not cross examine the witnesses (T. 36). The record closed on January 29, 2022. There were approximately three extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old 12th grade student, who attended the Private School during the 2020/21 school year (P-Ex. A; 91). The Student is diagnosed with a Learning Disability, Dyslexia, and Attention Deficit Hyperactivity Disorder (“ADHD”) (P-Ex. A-2; C-1). The Student is classified as a student with a Learning Disability (P-Ex. C). The Student was described as having deficits in math and reading, and struggled with focus, distractibility, organization, visual motor and grapho-motor skills (P-Ex. A-2). He was further described as having maladaptive behaviors, was disrespectful to adults, lacked empathy, and demonstrated poor coping skills (P-Ex. A-2).

The District’s Committee on Special Education (“CSE”) met on April 1, 2019, to develop a program for the Student’s 12th grade year (D-Ex. 1; P-Ex. C). The District’s School Psychologist (“SP”) testified that the Student was on her caseload (T. 38). The SP testified that the CSE recommended a 15:1 special class program (D-Ex. 1-12; P-Ex. C-10; T. 39). The Student was also recommended to receive counseling and occupational therapy (P-Ex. C-10). The SP described the 15:1 program as a high school setting in which the maximum amount is 15 students with a modified curriculum and a lot of adjustments and modifications (T. 39). At the meeting, the Parent testified that she was concerned with the amount of Student’s in the class and his ability to adjust to a larger setting (D-Ex. 3-2; P-Ex. C; T. 89).

Cognitively the Student was in the average range, except for processing speed which was low average (D-Ex. 1-1; T. 47-48). The SP said the Student had the ability to learn, but had ADHD and dyslexia that impacted his academic functioning (T. 48). According to the IEP the Student’s math skills were on the 6th grade level and his reading was on a 4th/5th grade level (D-Ex. 1-2; 49-50). In social development, the IEP indicated that the Student would become frustrated, had outbursts, and was disrespectful (D-Ex. 1-3; T. 50). The SP testified that this was discussed at the meeting (T. 50).

The CSE had access to his neuropsychological evaluation, verbal information from the school, and a vocation interview with the Parent (D-Ex. 4; T. 47). The SP did not know the date of the neuropsychological evaluation and admitted that the Student may have needed a new update (T. 47). The SP testified that the CSE had informed the Parent that he was due for testing but described it as a tricky situation because the Student was in 11th grade and some parents are hesitant about having it or not (T. 39-40). According to the CSE minutes, the Parent wanted an assistive technology and updated testing (D-Ex. 3-2; T. 40-41). The SP testified that she informed the Parent that it was her option and not mandated; if she did not want it, she could waive her right and they could continue with services (T. 41). The Parent’s advocate, also at the meeting, reported that she could not counsel the Parent against testing (D-Ex. 3-2; T. 41). The SP further testified that because they have such a large caseload, sometimes they are not able to evaluate every student that is required to be tested (T. 64). The CSE completed a vocational interview with the Parent, but not the student (D-Ex. 4; T. 60). The Parent was interviewed during the CSE meeting (T. 68). The Student was never provided with a vocational assessment (T. 67).

The SP testified that a functional behavior assessment was not recommended based on the information provided, and according to the Parent there were no social concerns (T. 42-43). However, the SP noted that in the CSE minutes that the Student gets anxious (D-Ex. 3-2; T. 58). It was further noted that the Parent had expressed concerns with the Student not being able to adjust to a larger setting (D-Ex. 3-2; T. 64, 66-67). The IEP also noted that the Student loses focus, talks and disrupts lessons, and acts out (P-Ex. C-2). Although the Student was described as friendly and outgoing, he was also noted that he had outbursts when frustrated and disrespectful (D-Ex. 3; P-Ex. C-3).

The Assistant Principal (“AP”) from the proposed District location testified that the public school location had 3300 students in the school, and multiple 15:1 classroom programs (D-Ex. 6; T. 73, 74, 75). The AP testified that they would have been able to implement the IEP in the school, and have teachers trained in Orton-Gillingham in the 15:1 classroom (T. 74, 77). The AP further testified that the 15:1 classrooms did not have behavioral issues (T. 74-75). The AP clarified that the Student would have been in a 15:1 classroom for ELA, math, social and science, but for the rest of his classes, such as electives, foreign language and physical education, he would have been with his general education peers, in classes of up to 34 to 50 students (T. 78-79). In those classes, he would not have the support of special education supervision (T. 81-82).

The Parent visited the proposed public school placement and testified that it was large and overwhelming (T. 89). The Parent was concerned with the Student moving from class to class in such a large setting (T. 89). The Parent did not believe that the Student would have benefited from the 15:1 classroom and definitely not in a classroom of 34 to 50 students as he would have been overwhelmed (T. 91).

The Parent sent the District a ten-day notice on August 15, 2019, informing the District of her concerns regarding the recommendations and the program (P-Ex. D). The Student attended the Private School for the 2019/20 school year, where he had attended since the 9th grade (T. 98). At the Private School the Student was one of three students, which the Parent testified was an important factor, since he had learning deficits and anxiety issues, and did better in a smaller class with individualized program (T. 88-89).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, although the District did present a case, it did not meet its burden in demonstrating that FAPE was provided to the Student for the 2019/20 school year. The District’s own witness testified that although the Student was mandated to be reevaluated, it was not done. The Parent even asked for updated testing and an assistive technology evaluation, but none were completed. The NYS Commissioner’s Regulations section 200.4(b)(4), are clear that a CSE “shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student’s parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary.” Here, the witness admitted that sometimes, due to large caseloads, they are not able to complete evaluations when required (T. 64). I am also not convinced that an FBA was not warranted. According to the witness, the Parent did not express social concerns regarding the Student. According to the evidence, socially he appeared to do well. Emotionally and behaviorally, however, the Student seemed to struggle in the classroom and therefore, an assessment into his behaviors should have been warranted. Based on the lack evidence in the record, I find that the District failed to assess the Student in all areas of suspected disability and therefore did not provide the Student with FAPE for the 2019/20 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must 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.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents 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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Finding that the District did not provide FAPE to the student during the 2019/20 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction. The Private School provided the Student with a small, nurturing setting with individualized instruction.

The Principal of the Private School testified and described the school as an individualized special education high school for students with language processing and language-based learning needs, who require a smaller environment (P-Ex. B; T. 105). The Private School provides common core curriculums, as well as NYS Regents diplomas (T. 105). The Private School is integrated within a mainstream school that has 800 students (T. 105). The students in the Private School can integrate into mainstream classes such as physical education, arts, and mental health classes (T. 105). The Private School employs licensed, certified special education teachers and provided related services, by licensed and certified providers (T. 106, 109, 110). During the 2019/20 school year, there were about 29-30 students at the Private School (T. 112).

The Principal testified that they modified the education for the Student because there were fewer students in the class (T. 107). The Student moved from class to class and had an opportunity to mainstream with students from the larger school during extracurricular activities (T. 110-11). They individualized assessments, both formative and summative, and his skills grew (T. 107). Socially, he was described as personable, but needed a lot of redirection in classes throughout the day (T. 107). His therapists were able to give him tools and skills to be able to cope with those challenges, and strategies to stay focused, attentive and seated throughout the day (T. 107).

The Principal testified that the Student benefitted from a small class environment where the teacher was able to redirect and keep the Student on task (T. 112). Due to the small size of the classroom, the Student had greater interventions and supports, and they were able to individualize instruction (T. 112-113, 115). To address his reading disability the Student had the support of a reading specialist, who was also his teacher and trained in Orton-Gillingham (T. 113, 128). She provided support to the Student’s other teachers as well (T. 128-129). Tests were read out loud to him, and he had a subscription to a reading platform that would highlight the words he was reading (T. 113). To address his focus and distractibility, they provided redirection, let him exert energy (such as wall push-ups), and used manipulatives such as fidgets (T. 114). The Principal testified regarding the internship block on the Student’s schedule and explained that it provided the Student an opportunity in a real life environment, in an industry they are interested in (P-Ex. E-1; T. 121). For the Student, he had multiple internships in real estate and during COVID he took online courses for his real estate license (T. 121). They provided the Student with support as well for social skills and life skills (T. 122).

The Student received related services of occupational therapy and guidance during the 2019/20 school year, even when the school went remote after COVID (P-Ex. E; J; T. 108-109). It was described that the Student struggled with self-esteem and self-image, which was addressed through counseling (P-Ex. C-3). To address his social emotional functioning, behavior modification techniques and daily documentation of his activity were used to hold him accountable for his actions (P-Ex. C-3).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). However, here, the Student made progress. The Private School has measured the Student’s progress through standardized testing, assessments, teacher observation, progress reports and report cards (P-Ex. G; H; T. 114-115,123-124). The Principal testified that they saw tremendous growth and maturity and he grew in his social and academic capacity; as well as in his motor skills, organization, time management (P-Ex. G; I; T. 115). The Student graduated at the end of the year with a Regents diploma (T. 126). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2019/20 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2019/20 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2019/20 school year.

SO ORDERED

DATED: February 12, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

Ex. Description Date Pages

1 IEP 4/1/19 20 pages

2 Attendance page 4/1/19 1

3 CSE minutes 4/1/19 2

4 Vocational interview 4/1/19 2

5 Prior Written Notice 5/7/19 4

6 School Location Letter 5/7/19 2

PARENT EVIDENCE

Ex. Description Date Pages

A Due process complaint 9/24/20 five pages

B Program description Undated two pages

C IEP 4/1/19 18 pages

D Ten-day notice 8/15/19 two pages

E Class schedule ‘19/'20 one page

F Digital schedule '19/'20 one page

G Student report card '19/'20 school two pages

H Progress report '19/'20 school three pages

I OT progress report 11/18/19 two pages

J Related service affidavits 11/7/19 two pages

K Enrollment contract 9/3/19 five pages

L Affidavit of Payments 10/27/21 1 page

M Proof of Payment 19/20 8 pages

N Attendance Record 19/20 1 page

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.