Impartial Hearing Decision

This hearing concerns a challenge to the district’s provision of a Free Appropriate Public Education (FAPE) to the student for the 2021-22 and 2021-22 school years. See Tr. 2-3, 36; E-A at 1-4, 16, E-C at 1-5, 19.

Specifically, this hearing addresses the issues raised in two separate due process complaints – consolidated under this case number. The family asserts that because the district failed to offer the student an appropriate placement each of these two school years, they were left with no choice but to engage in self-help by unilaterally placing the student in a program and placement that they deemed to be appropriate for both of them. They seek, among other things, district responsibility for the cost of that unilateral placement, as well as a finding that the program they have opted for is appropriate, and a determination that, if finally ordered or if the district accepts the Order and does not appeal, it will function to place the student at the unilateral placement at district expense for the years under review. See E-A at 17-18, E-C at C-19-20.

The student is currently ten-years-and recently completed the fifth grade at the unilateral placement. See E-1 at 1, E-JJ at 1. The student has academic challenges with respect to reading, writing, and mathematics, has difficulty maintaining necessary levels of attention, comprehending and completing schoolwork and making decisions; he has executive functioning weaknesses, and has been diagnosed with a Specific Learning Disability with respect to both reading and writing. See E-EE at 13, 19, E-JJ at 2-3. The student also has a mild expressive language disorder. He received speech and language therapy at the nonpublic placement. See Tr. 93-94, 96-97; E-R at 13, E-CC at 2, E-HH at 2, E-II at 8-9.

On June 15, 2020, the district convened a CSE meeting that created the student’s IEP for the 2020-2021 school year. The team classified the student as having a speech or language impairment and recommended that the child be placed in a partial ICT program with the provision of two periods of SETSS for math per week, as well as the provision of both individual and group speech-language therapy. See E-1 at 1, 12-13, 18. On August 6, 2021, a district CSE convened for the student’s 2021-2022 school year and made the same substantive service/support recommendations as were made for the prior IEP. See E-8 at 1, 13, 18. The family does not agree with the district’s assertion (discussed in more detail below), that it also offered the student seats in a district community school for both school years in support of these IEPs. See E-2 at 5, E-9 at 5.

The district maintains that this showing constitutes a demonstration of FAPE for each school year, and opposes the family’s request for relief, on this basis as well as others. See Tr. 33-35, 117-125. Before applying the facts to the law to determine the merit of the family’s claims, a discussion of several relevant legal principles is warranted first.

• • The Burden of Proof – the Who, When, and How Much.

Defining what must be proved in a denial of FAPE case provides only a partial description to the procedures the law lays out; in addition to ‘what,’ there are important ‘who,’ ‘when,’ and ‘how much’ parameters as well; taken together, these constitute the ‘burden of proof.’

• • The ‘Who’ – The Burden of Persuasion Litigation is the process whereby an external decision-maker is asked to intervene in the status quo, either to force a change or to compel its uninterrupted continuation. The Burden of Persuasion answers the question, ‘who is obligated to convince the decision-maker that facts exist that mandate him or her to take such action?’ If the decision-maker is not convinced that the facts based on the record in the trial favor the party with the Burden of Persuasion, the decision-maker will not, indeed cannot, intervene. Thus, if the side that has the Burden of Persuasion fails to persuade the decision-maker about the facts, if it does not meet its burden, then the other side wins even if that side sits mutely and never makes any argument at all. In contrast to the rules of blackjack – where ties routinely favor someone, the dealer – ties in litigation are allocated against someone, against the party with the Burden of Persuasion.

In most settings, the party that has the Burden of Persuasion is the side that wants to change the status quo. As Justice O’Connor wrote for the U.S. Supreme Court in Schaffer v. Weast:

When we are determining the burden of proof under a statutory cause of action, the touchstone of our inquiry is, of course, the statute. The plain text of Individuals with Disabilities Education Act (IDEA) is silent on the allocation of the burden of persuasion. We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. McCormick § 337, at 412 (“The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion”); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”).

546 U.S. 49 (2005) at 56. Emphases added.

But this does not work in special education law. In our cases, the italicized language and the underscored language often point in opposite directions. While the IDEA is indeed explicitly silent with respect to which side bears the burden of persuasion, the Act is quite clear that once a child is receiving special education services (1) the school district has the right and the power unilaterally to change the status quo with respect to a disabled child’s program and placement, so long as it follows the procedures detailed in that Act when it does so; ^[1] unless (2) the family seeks judicial intervention, irrespective of whether they hope to change or maintain the status quo (there are an extremely limited number of small procedural exceptions in which the district has the obligation to request a hearing, none relevant here).

The district, that is, does not need to seek a hearing to get permission to change the status quo for a child already receiving services; it may simply make any change it wishes, once the CSE has convened and crafted an IEP calling for such a change, unless the family requests a hearing seeking to compel the district to maintain the status quo. Similarly, if the district wishes to continue the status quo, the family must seek a hearing if it wishes to compel a change. Either way, the onus is on the family.

Thus, in virtually every instance (other than opposing an Independent Educational Evaluation requested by a parent) the family will be the party that ‘seeks court action’ as described by Mueller & Kirkpatrick in the underscored passage quoted by Justice O’Connor above. BUT the family will only sometimes be the party that ‘seeks to change the present state of affairs’ in the italicized passage. As a result, the allocation of the Burden of Persuasion would go one way under one of the standard rules cited by the Court in Schaffer but the opposite way under the other, equally authoritative, one.

The IDEA is implemented in each state pursuant to specific state law, and, as Justice O’Connor noted above at the outset, “the touchstone of our inquiry is, of course, the statute.” 546 U.S. at 56. In the case of the IDEA, there are two statutes applicable in each jurisdiction: one federal and one state. For states in which the local statutes are similarly silent about the allocation, Schaffer functions to resolve that ambiguity about how the Burden of Persuasion is allocated. But in New York State, the local allocation was made in direct response to the Schaffer decision and explicitly rejects its conclusions. In New York:

… The 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, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.

NY Educ. L. § 4404(1)(c).

So, in New York, even though it is almost always the family that must file the complaint, it is always the district that has the burdens of proof with respect to all aspects of the proceeding (except, in cases seeking reimbursement for a unilateral private school placement, with respect to the demonstration of the appropriateness of that unilateral placement). In sum, in New York, the district must prove that it has offered a free appropriate public education (FAPE) in the least restrictive environment (LRE), in all hearings, no matter what the nature of the family’s challenge.

While the family’s Complaint must detail the specific issues to be addressed in the hearing,^[2] the allocation of the burden of proof to the district means that in every case the district must make at least a minimal showing of each of the elements – set out at least a prima facie case -- that it has in fact offered FAPE in the LRE. If it does not do so, it fails to meet its Burden of Persuasion. Any presumption that the district has provided FAPE unless shown not to have done so by the family improperly offloads the statutory allocation of the burden away from the district and onto the child.

Justice O’Connor, writing for the Court in Schaffer, found the implications of such an allocation troubling: “Petitioners in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not.” 546 U.S. at 59. Indeed, it may seem unfair to presuppose that the school district has by default failed to meet its obligations, that in all cases it is guilty until it can prove its innocence. But, fair or not, that is precisely what the New York statute’s allocation of the burdens does. In fact, it was precisely the intent of the New York State legislature, two years after the Schaffer decision was issued, to adopt a statute that functioned to overturn Schaffer in New York and apply systematic skepticism to the districts’ recommendations.

Despite the seeming imbalance, there were and are four reasons why that allocation is neither anomalous nor inequitable, and why the legislature acted as it did to level a playing field that otherwise, in its view, unfairly favored the districts:

First, the entire due process mechanism – from child find, through evaluation, review of the evaluations, crafting of an IEP, and on to placement offer – must be viewed as a single, continuous flow, not as a series of snapshots. The balance of power shifts from stage to stage, but is, ultimately, a careful exercise in equality and counterpoint. It is a mistake to look at the balance of power in a single snapshot taken at any particular point in the unfolding history of the case.

For example, at the CSE/IEP-drafting stage, the district can do whatever it wants. The parent has a right to participate and be heard, but the decision-making authority lies exclusively with the district, wielded in the person of the district representative in attendance at the CSE review (FN 16. supra). The parent does not even have a right, at that stage, to require that the district explain its reasoning or demonstrate the propriety of the program and placement it has offered. There is an imbalance, strongly favoring the district at this foundational level. But it shifts back if the parent seeks to challenge the district’s decision.

Placing the burden of proof on the district when a family challenges a CSE recommendation by seeking a due process hearing merely rebalances the scales by countering the district’s initial, universal, advantage. Doing so requires that the district, perhaps for the first time, reveal its reasoning and demonstrate the propriety of its decision, and that it do so before a neutral third party. This choice not only moves the process along more smoothly than would a requirement that it do so during the IEP review, by eliminating potentially rancorous and unfruitful debate between two sides with opposing, vested interests and differing views; it introduces a neutral umpireal voice to review the challenged call.^[3]

Second, placing the burden on the district reflects the legislature’s awareness that the district, not the parent, has access to the information needed to determine whether the district’s offer was indeed appropriate. Allocating the burden to the parent, in a proceeding that, among other things, has no discovery phase, would force the family to speculate about information that is exclusively in the district’s control (such as the reasoning behind the district’s program and placement recommendations).

Third, the burden of proof must be viewed in the context of the Rowley/Endrew standard, a substantively minimalist standard that districts should have no difficulty meeting if their actions do indeed comport with the requirements of the Act. As a result, the legislature concluded that shifting the burden to the district simply had the effect of evening up what was otherwise already a lopsided balance.

Most compellingly, though, placing the burden of proof on the district flows from, and is an urgent reminder of, the district’s fiduciary responsibility to educate this child. This process is not some zero-sum game, a tug of war in which either the district or the family will win by tearing the child apart. Rather, even the litigated hearing process is a dynamic element in the collaborative enterprise described at the outset. The district has, and should have, the burden of proof because it has the Constitutional and statutory responsibility to provide the student with a sound, basic, and, for students with IEPs, Endrew-appropriate education. That obligation plays itself out at least in the eyes of this State as properly placing the burdens of production and persuasion on the district.

• • The Standard of Proof – the ‘How Much’ Determining which party must convince the decision-maker is only the first step in allocating burden of proof. A measure must also be articulated – the Standard of Proof – defining just ‘how much’ evidence the party that has the Burden of Persuasion must put forward in order to shift the outcome and prevail.

In most civil actions, and in special education cases in particular, the standard is somewhere in the middle: there must simply be a showing (by the party with the Burden of Persuasion) of enough evidence to tilt the judicial scales in their direction – a standard referred to as a ‘preponderance of the evidence.’^[4] For the party bearing the Burden of Persuasion to prevail, therefore, it must show that, when all the evidence put forward by all sides is balanced in the decision-maker’s equitable scales, the balance tilts, however slightly, in the direction of the party bearing the burden. A gentle evidentiary breeze may be enough to shift the balance in the opposite direction, but so long as the scale at rest tips in favor of the party possessing the Burden of Persuasion, that’s a good enough basis on which to declare full-throated victory. If it does not, if it tilts the other way, or even if it remains in perfect equipoise between the parties – because ties get resolved against the party with the Burden of Persuasion, by definition -- the burden has not been met and that party loses.

The preponderance of the evidence standard is neither daunting nor trivial; what makes the district’s burden in special education cases almost minimal or pro forma lies in application: the substance of the district’s prima facie case – discussed in depth above – sets the bar very low indeed, at the Rowley/Endrew standard: the district need only show, by a preponderance of the evidence, that it had offered a placement ‘reasonably calculated to provide meaningful educational benefit’ to the child.

• • The Burden of Production – the ‘When’ The Burden of Production (also called the burden of going forward) is the ‘when’ of the burden of proof: it means that until both sides have rested their respective cases, one party must always be identified as the one with the obligation to go forward. As in a tennis game, the ball moves back and forth between the two sides, waiting to be swatted by one side’s arguments over to the other’s. In general, as noted by the authorities cited by Justice O’Connor in Schaffer, supra, the burdens of persuasion and production travel together. Dispositively, in New York State, the statute expressly allocates them jointly, assigning the “burden of proof including the burden of persuasion and burden of production” (NY Educ. L. 4404; emphasis added) to the district with respect to all aspects of a special education hearing (other than the appropriateness of the family’s unilateral placement in cases seeking reimbursement).

Of course, that only starts once a case has been initiated. At the outset, the burden of production lies statutorily with the party initiating the impartial hearing: they (almost always the family) must file a Complaint^[5]; that filing then shifts the Burden of Production to the district, which must, first, file a response, and, second, go forward to make its prima facie case. Once it has done so, the burden of going forward shifts to the family, who then have the opportunity to present a case that challenges the district’s initial showing. And when they have taken their best shot, the burden of going forward may shift back again to allow the district to address the issues raised in the family’s case.

• • Putting the Burdens Together: Delivering The District’s Prima Facie Case.

Taken together, these three components define the mechanics of the prima facie case. That is, how much must be proved by whom at the outset of the case. What does it take for a school district to win, if the other side does nothing more than file a Complaint? What is the very least that the party with the Burden of Persuasion must show in order to meet that burden and prevail?

The answer is that, with respect to each essential component of the case (the referral, evaluation, classification, program, and placement), the party with the burden of production (the district) must present enough evidence to meet the standard of proof (preponderance of the evidence) in order to persuade the decision-maker that the burden of persuasion has been met.

When added to the substance of the district’s burden – its obligation to demonstrate that, if the student is eligible for special education it has offered him or her a free appropriate publicly-provided education in the least restrictive environment -- the district’s prima facie showing is as simple as admitting into evidence two documents, supported by at least one witness available for voir dire and cross-examination with respect to each document entered (they could conceivably be the same witness): an IEP (describing the evaluation, making the classification, and defining the program in sufficient detail to permit a determination that it was appropriate) and a Final Notice of Recommendation or a School Location Letter or a Prior Written Notice demonstrating that a specific offer was made.

A district need initially do no more than that.

• • The Family’s Burden: ‘Prong 2.’ Rowley and Endrew provide a single standard against which to measure the appropriateness of a proposed placement, whether it be a district offer or a placement made unilaterally by a family engaged in self-help: whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to the child. See, e.g., B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 677 (S.D.N.Y. 2012)(“the Court evaluates whether, at the time B.R. was actually considering the proposed placement, the school could offer [services] in line with the IEP”).

But context is everything. Both a skilled obstetrician working in the state-of-the-art delivery suite of a world-class teaching hospital with a team of colleagues and specialists and a terrified spouse pressed into emergency service in the back seat of a taxi pulled over by the side of a standstill traffic jam have the same legal obligation to exercise ‘reasonable care’ in guiding a difficult birth under exigent circumstances. But what that legal obligation means, and how it is applied, are likely to seem very different indeed to a decision maker in the two different sets of circumstance. It’s not just about expertise. It’s about access to equipment and supports, about the capacity to keep the environment sterile, about having assistance near to hand, about the sangfroid that travels with objectivity, and about information available in the hospital setting that can only be approximated at best in the taxi. The spouse’s knowledge and options are foreclosed, his or her timeframe narrower, the investment in survival and success very different.

Similarly, the ‘reasonably calculated’ standard from Rowley may be wielded very differently when it is applied to the district than it is when applied to the family. While it is seldom a daunting standard, even when applied to a district acting in good faith, it should be no surprise that a family seeking a school for a child with special needs will almost always select one that is reasonably calculated to provide meaningful educational benefit. On the other hand, the standard as applied to the district requires a determination that each element of the child’s entitlement – the evaluation, the review, the program, and the placement – be Endrew-appropriate, and that, moreover, the IDEA procedures be followed with the level of compliance defined in the law. Parents have none of these obligations but must simply identify a program and placement that meet Rowley in a global sense. In sum, the Rowley/Endrew standard as applied to the family amounts to the question, “Did they make a mistake?” When applied to a placement made or proposed by a school district, on the other hand, Endrew is predominantly about aspiration. The question amounts to “Did the district aim high enough?”

Thus, parents, who may surely be expected to aim high in their hopes and expectations for their children, will almost always meet a standard that defines the minimum acceptable level of a family’s vision, while districts may well have a somewhat harder time.^[6]

Like the spouse in the taxi, families are amateurs playing a professional game; they lack the obligation to generate an IEP, and often lack the knowledge, specialized skill, and access to the continuum of services that a district has. See Florence County School Dist. Four v. Carter, 510 U.S. 7, 13-14 (1993). As a result, when asking whether a unilateral placement was ‘proper under the Act,’ the questions more frequently relevant to the family’s burden will have to do with whether their understanding of the child’s needs was sufficiently clinically-supported, and whether the choice made from among the options available to them hewed sufficiently close to the Rowley/Endrew standard to be better than the next best available alternative (whether it be the district’s offer or an available alternative non-public placement). For a family, reasonableness will in this sense inevitably be a moving target: depending on what programs (including the one offered by the district) were realistically available to the family, was their choice meaningfully calculated to afford sufficient educational benefit that it justified rejection of the district’s offer?

For a district, on the other hand, which must have a mandated continuum of services in place, which must have access to clinical expertise, which must have a CSE review mechanism in place, and which must develop and deliver services based upon a detailed IEP, the Rowley standard is more inflexible, precise, comprehensive, and demanding in application.

Thus, a program that might fall short of Rowley/Endrew when offered by the district, could very well comply with it when provided by the family. It seems, for example, self-evident that a district would not prevail if it had developed a detailed IEP but actually chose not to deliver the bulk of the program but only one or two of the related services from that IEP. They would fail to meet their burden even if the child was likely to benefit from that one related service. And yet, a parent faced with no offer from the district, having searched in good faith for a program that might benefit the child, might find only programs that provide a part of the child’s needed services – forcing them to choose between a program partially compliant with the child’s needs and nothing at all. Such a family – or one that combined services and programs obtained from more than one source into a hybrid placement made up of several non-Rowley-compliant parts – would likely meet the Rowley test as it applies to unilateral placements. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006):

[P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M. S., 231 F.3d at 105 (“The test for parents' private placement is not perfection.”) (internal quotation marks omitted). 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.” Rowley, 458 U.S. at 188–89, 102 S.Ct. 3034 (internal quotation marks omitted).

459 F.3d at 365. See also T.K., supra, at 12.

In sum, once the decision-maker has concluded that the district has failed to offer FAPE in the LRE, the family must show that, given what they knew at the time they made their placement, the program they committed to was more likely to accord the child meaningful educational benefit than was the fatally defective program the district had offered (or the lack of any program, as may be the case when the district acknowledges that it failed to offer a program, or when it simply chooses not to present any defense of a placement it did offer).

When the actions of the district amount to a failure to have offered Endrew-defined FAPE, then parents legitimately may remove their children from the public schools in order to seek a program reasonably calculated to provide educational benefit. Where, however, the district shortfall amounts to less than a denial of FAPE, the law expects the parties to work together, including through the exercise of due process, to correct any problems that arise, while the child remains in the public schools (or in a private school at family expense).

• • The Facts Here
• • Again, the family here asserts that the district failed to offer this student an appropriate placement for both the 2020-2021 and 2021-2022 school years. As a proposed remedy, the family seeks an Order directing district financial responsibility for the costs of the student’s placement for both school years. See E-A at 17-18, E-C at 19-20.

As discussed in more detail above, the district carries the legal burden (both production and persuasion) of refuting the family’s allegations as alleged in the due process complaint with respect to the provision of a FAPE. See N.Y. Educ. Law § 4404(1)(c). The party filing the due process complaint(s) at issue – here, the family – in this manner dictates the issues to be adjudicated. See 20 U.S.C. § 1415(f)(3)(B).

The family’s two due process complaints (E-A, E-C) are voluminous, painting a detailed picture of a cascading series of district errors and omissions, most of which are alleged with respect to both school years. The parties are well aware of the specific claims, and they need not and will not be repeated verbatim here. That said, a number of allegations are worth emphasizing, including claims by the family that (a) the student was not fully and completely evaluated by the CSEs, which also disregarded the information about the student provided by the family and nonpublic program, (b) the recommended ICT/SETSS program was not only insufficiently supportive for the student, but was also essentially a predetermined, shoehorned program that the district recommended due to expediency and not the student’s actual needs; (c) the recommended SETSS component was not explained to the family, (d) both IEPs contain insufficient/improper goals and short-term objectives, (e) the student required multisensory instruction to make progress in all subjects throughout the school day, which was not provided for under the IEPs, and (f) with respect to the 2021-2022 school year, the family was not timely provided with an offer of a public school placement to implement the IEP. See E-A at 3-7, 10, 13-14, E-C at 4-10, 12, 15-16.

A review of the hearing record compels a finding that the district failed to prove it offered the student a FAPE for either school year.

Given the family’s detailed due process complaints, it was incumbent upon the district to, at a minimum, elicit evidence from a member of each team to provide a sufficient factual basis for what the CSE did and why, and to refute the allegations raised in the complaints. The district chose to not do so, instead providing the testimony of a School Psychologist who was not a part of either CSE team, and instead offered testimony – much of which was opinion, not fact – based on a review of the district’s written exhibits and other documents. See Tr. 42-45; E-10, passim. Indeed, the School Psychologist candidly testified that they did not consult with anyone who participated in the two CSE meetings at issue, instead reviewing documents “to try and figure out what was going on at that meeting.” Tr. 43. The School Psychologist’s testimony – key to the district’s prima facie FAPE case, as well as to rebutting the family’s specific allegations – provided exceedingly limited added value in determining whether the student was recommended for an appropriate program, and even less added value when considering the district’s burden under N.Y. Educ. Law § 4404(1)(c).

The witness’ testimony failed to mention, let alone convincingly rebut, many of the family’s allegations. For example, the affidavit – which appears to be a template for district witnesses to fill in – was blank with respect to the primary drafter’s question about how the recommended goals addressed the student’s deficiencies and why they were appropriate for this specific student. See E-10 at 3. Nor was clarity elicited by the district on re-direct. As noted above, the question about the appropriateness of the goals and short-term objectives recommended for the student were key allegations by the family with respect to both due process complaints (see E-A at 6-7, E-C at 8-10). The district was functionally silent.

Both the witness’ affidavit and live testimony failed to rebut the family’s explicit allegations about the conduct of the meeting, how the CSEs allegedly predetermined/shoehorned the student into the ICT/SETSS recommendation, and how the teams failed to inform the parents how the district’s “SETSS” program – a service that is not contained on the State’s continuum of services for students with disabilities – would specifically help the student’s math needs, or even what SETSS was.

There is nothing in the affidavit to counter the family’s allegations that the CSE did not fully evaluate the student or that it disregarded the information provided by the family and the nonpublic program. At best, the testimony reflects that the School Psychologist believed that “[b]ased on the available data” (emphasis added) the recommended program would have been appropriate for the student. E-10 at 3. See also Tr. 56 (re-direct eliciting testimony that there was nonspecific “testing done”). This witness, who no more participated in the reviews of this student than did I, and whose access to evaluative and review information about the student is more limited than my own, falls far short of demonstrating that the student was fully and comprehensively evaluated by the CSEs as required by 8 NYCRR 200.4(b), nor does it even persuasively overcome the explicit allegations by the family to the contrary.

The district’s evidence also failed to demonstrate that the recommended program was reasonably calculated to allow the student to make meaningful progress, given that the evaluative information in the hearing record reflects a consensus regarding the student’s need for multisensory instruction and placement in a small, supportive specialized class program. See, e.g., Tr. 85, 89-95, 112-113; E-EE at 13, E-II at 4-5, 8. Compare with Tr. 46 (School Psychologist testifying that, in substance, the size and composition of an ICT class is beyond the scope of the CSE making such a recommendation). The district did not introduce any contrary evaluative evidence calling into question the student’s needs for such support and did not meaningfully grapple with these issues in its case-in-chief. In short, the district did not meet its burden. See, e.g., A.M. v. New York City Dep't of Educ., 845 F.3d 523, 542-546 (2d Cir. 2017).

Moreover, the district’s evidence actually undercuts a determination that the the program might have been appropriate for the student. For example, in the management needs section of the IEP generated for the 2020-2021 school year, the CSE noted that the student would “benefit” from a “[m]ulti-sensory approach to learning, when feasible.” See E-1 at 6 (emphasis added). This qualifier runs squarely counter to the fundamental premise of the special education law: that the IEP must capture the student’s needs and the district must then deliver a program that addresses them, full stop. Not when it is convenient or feasible or in keeping with the district’s extraneous constraints to do so. See also E-10 at 3 (district School Psychologist’s conclusion that the recommended program(s) for the student “as indicated in the recommended service page” which did not include any provision for multisensory instruction were appropriate). The IEP for the 2021-2022 school year didn’t even bother with a qualified suggestion for multisensory notwithstanding the fact that there was no basis for the district to believe that the need for a multisensory approach had diminished. See E-8 at 7.

Further, both IEPs reflect that the ICT program was a partial one, only providing support for some, but not all, of the student’s weekly class schedule. See E-1 at 12, E-8 at 13. Other than the provision of SETSS (which was not convincingly explained or justified by the district) and speech-language therapy, there is no indication as to what the balance of the student’s week would look like; given that the student was to be placed in a non-specialized, community school (see E-1 at 18-19, E-8 at 17, 19), under this IEP the balance of the student’s program could have been in a purely general education environment, at the placement’s discretion and in contravention to the needs detailed in the clinical assessments. See also E-10 at 4. The district asserted that this was the least restrictive environment for the child. Id. LRE is of course important – and a necessary consideration under the law – but appropriateness can never be sacrificed to LRE. If it could, then the best placement for every student would always be an unmodified general education classroom. See 34 C.F.R. § 300.114(a)(2)(i) (the recommended program must first meet the student’s educational needs; placement with typically developing peers is mandated only “to the maximum extent appropriate” when considering such needs). I Find that the district failed to address, let alone demonstrate, how a partial ICT program, coupled with the recommended (and unexplored) SETSS periods and related services, would meet this student’s specific learning needs as detailed in the assessments.

The district also failed to prove that it provided the family with a timely school location letter for the 2021-2022 school year. The family explicitly alleged that no such placement notice was received prior to the start of the school year. The district did submit into evidence a school location letter, dated August 18, 2021. See E-9 at 5. The notice contains a boilerplate statement that the letter was to be “Mail[ed] to” the family. See E-9 at 6. However, despite the due process complaint’s clear allegation of non-receipt, there was no evidence submitted by the district that the school location letter was in fact sent via U.S. Mail to the family (or via any other means). No presumption of mailing was established by the district. See Application of the New York City Dept. of Educ., Appeal No. 08-110 at 7 (“Although the parent's claim that she did not receive the IEP and FNR is insufficient by itself to rebut the presumption of mailing (see Nassau Ins. Co., 46 N.Y.2d at 829-30), testimony by the district's placement officer did not establish that the IEP and FNR were mailed in accordance with the district's standard office procedures; thus the district is not entitled to the presumption of mailing, and therefore the district's mailing and the parent's receipt of the IEP and FNR are not supported by the hearing record”) (available at https://www.sro.nysed.gov/decision/2008/08-110).

For all of these reasons, I Find that the district has denied the student a FAPE for both the 2020-2021 and 2021-2022 school years.

Turning now to whether the private school was an appropriate program reasonably calculated to meet student’s needs for the 2020-2021 and 2021-2022 school years – I find that the record reflects that the program amply met the Rowley/Endrew standard as applicable to families.

First, the school’s program, which the student received during the 2019-2020 school year, was recently determined to be substantively appropriate for the student in an impartial hearing addressing the prior year. See E-Q at 2-8, E-JJ at 3. While not dispositive, it is worth noting that the student remained in the same specialized nonpublic program, and that the record affords no evidence of any fundamental error with respect to, or appeal of, the prior determination of appropriateness, nor any evidence of fundamental change in the student’s assessments or needs between and among the school years. The prior determination surely serves as a tailwind behind any effort to evaluate the years here under review as applied to the same student attending the same school. See S.H. v. Eastchester Union Free School Dist., 2011 WL 6108523, at *10 (S.D.N.Y. Dec. 8, 2011); F.L. v. Bd. of Educ. of the Great Neck U.F.S.D., 274 F. Supp. 3d 94, 120 (E.D.N.Y. 2017) (where a student made progress under a prior program, a successive, substantially similar program modeled upon the previous, progress-inducing program was appropriate).

Second, the family marshalled detailed (if somewhat obscurantly-organized) evidence demonstrating that the student received a supportive, specialized, personalized educational program for both the 2020-2021 and 2021-2022 school years that met the student’s specific needs. See, e.g., Tr. 85-87, 89-99; E-R at 12-13, E-CC at 1-2, E-FF, E-GG, E-II at 2, 5-13. Given that the student was in a substantially similar program the prior (2019-2020) year, where the child received an appropriate specialized program and made progress (see, e.g., Tr. 110-111; E-Q at 7), it was eminently reasonable for the family, when they enrolled the student in the nonpublic program for the 2020-2021 (and 2021-2022) school year, to believe that the student would continue to make progress – the precise inquiry that Rowley/Endrew frame as our prime directive. See Endrew, supra and R.E. v. New York City Dep't of Educ., 694 F.3d 167, 187 (2d Cir. 2012).

Third, under the IDEA, families may be held to a more forgiving legal standard in demonstrating the appropriateness of a unilateral program than a school district would be held to if seeking to demonstrate the propriety of a program with which the family does not agree. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-837 (2d Cir. 2014); see also Frank G., 459 F.3d at 364. “The test for the private placement ‘is that it is appropriate, and not that it is perfect.’” T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 (2d Cir. 2016) (citations omitted); see also Carter, 510 U.S. at 14-15.

Finally, there is nothing in the record that would raise, much less support, an equitable reduction of the otherwise appropriate award of tuition funding. The family cooperated with the district, provided more than adequate notice of their concerns prior to enrolling the student in the nonpublic program – notice that the district chose to disregard – and otherwise acted with clean hands throughout vis-à-vis the district. See, e.g., E-1 at 19-20, E-E, E-F, E-G, E-J, E-K, E-JJ at 2, 4-7 The family’s tuition claims for both school years are successfully framed and my remedy is crafted accordingly.

ORDER.

As detailed above, I Find that the family’s placement was appropriate for both the 2020-2021 and 2021-2022 school years and continues to be appropriate, and I Order the district, to the extent not already paid pursuant to pendency, to (1) reimburse the family for any out-of-pocket tuition costs for the child’s placement during the 2020-2021 and 2021-2022 school years; and (2) pay directly to the school any outstanding amount as yet unpaid for the program for the 2020-2021 and 2021-2022 school years; and

I Order the district to provide a copy this decision to any person participating in any review of this student’s placement that takes place during the next twelve (12) months from the date of this decision. The copy of this decision shall be provided by the district to all meeting participants at least three (3) school days in advance of such CSE meeting.

August 26, 2022

John Farago, 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.  The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD BY THE DISTRICT

DOCUMENTATION ENTERED INTO THE RECORD BY THE FAMILY

Footnotes

[1] The U.S. Department of Education’s 1999 Appendix A to Part 300 Regulations implementing the IDEA address this question explicitly: What is a public agency’s responsibility if it is not possible to reach consensus on what services should be included in a child’s IEP? The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents’ concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)). The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority “vote.’’ If the team cannot reach consensus, the public agency must provide the parents [FR Page 12474] with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing.

[2] ‘Issues’ may unduly cast the family’s obligation with respect to the Complaint; it is meant to be a forum in which parents may appear pro se and the terms used make it clear that the requirement is for ‘notice pleading’: “a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem.” 34 C.F.R. § 300.508(b)(5).

[3] The Supreme Court in Endrew made this very point about the imbalance of power prior to the administrative hearing: “By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017).

[4] Although the New York and federal statutes are silent with respect to the standard of proof in special education hearings, they both specify that the standard with respect to the de novo judicial review of the subject matter of those hearings shall be ‘preponderance of the evidence.’ NY Educ. Law § 4404.

[5] To be sure, as noted above, the family has an obligation to frame the hearing issues in their Complaint, and the hearing is bound to address the problem(s) alleged and no others, but that is explicitly a factual description – “a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem” [8 NYCRR 200.5(i)(1)(iv)] – not a legal one. The obligation of the family in their Complaint is to provide the district with facts sufficient to convey notice of the substantive nature of their concern, they need not specify their legal theory of the case. The two may be very different indeed and it may not be easy to discern from the former what the latter may turn out to be. Thus, for example, a Complaint that alleges that a proposed placement has too many distractions for a child diagnosed with ADHD could constitute a sufficient description of the problem with the placement, without detailing whether the family is challenging the district’s evaluation, the IEP it has generated, or the placement it is proposing. It could be any or all of these, and the district’s initial burden is affirmative: it must make at least a minimalist showing of the propriety of each. Families, under the IDEA, are not required to be experts on the law; they need simply articulate the nature of what they disagree with their child’s school district about.

[6] This does not mean that, once a district has failed to meet its burden, the family will almost automatically win because theirs is so low. The equities may well still not favor reimbursement. Reimbursement for all or part of a unilateral placement may be inappropriate because it falls too far in the opposite direction –the family has opted for a ‘Cadillac’ when a ‘Chevy’ could have gotten the child to his or her Rowley-defined destination. That, however, is not properly an argument about the propriety of the family’s placement, but, rather, an argument that the family should not be entitled to recapture the full cost of their placement – an argument about how the equitable remedy should be sculpted. When the parents’ unilateral placement exceeds the child’s minimal Rowley entitlement, a decision-maker balancing the equities has the opportunity -- though not the obligation -- to whittle the desired remedy down from reimbursement for what the parents obtained to something closer to the cost of what the district should have offered; the equities, not Rowley or the parents’ burden, allow the judge to reshape the remedy under these circumstances, Similarly, when families prioritize other values ahead of their child’s education – prejudice, even bigotry, or religion or cultural values – and decline a public offer and insist on a non-public school that comports better with their notion of what they want for their child, they run the very serious risk that the decision-maker won’t feel that the equities tilt in their favor. They may even find that a decision-maker believes that a Guardian ad Litem need be appointed to protect the child’s interests.