New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 548250 - NYC: 204714

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 204714

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: December 8, 2020

Hearing Dates: October 20, 2022

Actual Record Close Date: November 1, 2022

Decision Date: November 15, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], Private School CSE Coordinator

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 8, 2020, regarding the 2020/21 school year (P-Ex. B)^[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. B). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. B).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on August 26, 2022, after the recusal of a previous hearing officer. A status conference was held on September 13, 2022, to discuss the issues in the case. The matter had under investigation for one year and nine months with no movement, so a hearing date was scheduled. The hearing was scheduled for October 20, 2022, and concluded in one day (See, Transcripts).^[2] The District presented one exhibit but no witnesses. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on November 1, 2022. There were approximately two extensions of the compliance timelines granted by this Hearing Officer to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted]-year-old, [Redacted] grade student who attended the Private School during the 2020/21 school year (P-Ex. B). The Student was classified as a student with an Other Health Impairment (D-Ex. 1). The Student was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”); Mixed Receptive-Expressive Language Disorder; Learning Disorders in Reading and Written Expression; and an Adjustment Disorder with mixed anxiety and depression (P-Ex. C-12; L-1; L-2). The Student struggled with writing and reading deficits and challenges with attention (P-Ex. L-2). The Student began receiving services through a 504 plan in 1st grade and then services through an IEP in 4th grade (P-Ex. L-2). The Student was in an ICT program in grades 4-5, then in a self-contained 12:1 class in grades 6-8, and then back to an ICT class during 8th grade (P-Ex. L-2). The Student began attending the Private School in 9th grade, during the 2019/20 school year (P-Ex. L-2, L-4).

The Student had a private neuropsychological and educational evaluation done in 2018, and another one in 2021 (P-Ex. C; L-3). The 2018 evaluation recommended a small, specialized school that offered language-based special education support, very low student to teacher ratio, and similarly functioning peers with no behavioral issues (P-Ex. C-12; L-3). The 2021 evaluation recommended continuation in a small, language-based special education school (P-Ex. L-3). The Parent shared both reports with the District (P-Ex. L-3).

The Parent participated in an IEP meeting on March 25, 2019, and June 10, 2019, however there was no IEP meeting held prior to the beginning of the 2020/21 school year (P-Ex. L-5-6). On August 25, 2020, the Parent notified the District that it had not developed an IEP for the Student for the 2020/21 school year and that they were unilaterally placing the Student at the Private School (P-Ex. A). The Parent participated in an IEP meeting on November 4, 2020, however by then, the Student was already attending the Private School (P-Ex. L-5). The IEP team recommended a 15:1 classroom program but the Parent did not agree with the recommendation (P-Ex. L-6).

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, the District failed to present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21 school year. The Parent alleged that the District failed to develop an IEP for the Student prior to the 2020/21 school year and the only evidence presented by the District was an IEP for the 2022/23 school year. The District failed to explain why an IEP had not been developed prior to September 2020, or any evidence regarding the recommendations in the November 2020 IEP. Therefore, I find that the District failed to provide the Student with FAPE for the 2020/21 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 also, 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 2020/21 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 CSE Coordinator from the Private School testified by affidavit regarding the school and the Student (P-Ex. M). The Private School is a full-time college preparatory school specifically designed for students who need intensive support for their learning disabilities, small classes with low student populations, specialized teaching methodologies, a multi-sensory approach to learning, and a challenging curriculum to empower them to become academic achievers, creative thinkers, and contributing members of a global society (P-Ex. D; M-2). A multi-sensory approach, used in all subject areas and classes, is one that encourages students to learn in a variety of ways, using numerous senses including, but not limited to their visual, auditory, and tactile senses, all at the same time (P-Ex. M-2). The Private School teaches that students with learning disabilities are just as capable as typically developing peers but require different learning methods and strategies to be successful (P-Ex. M-2).

The Private School provides small class sizes, a low student-teacher ratio (with an average of 7:1), and differentiated instruction based on each student’s individual needs, strengths, interests, and abilities to accommodate all types of learners (P-Ex. M-3). Classrooms are equipped with resources including interactive and assistive technologies (such as interactive white boards, FM Systems, and chrome books) to support students with a wide range of learning needs such as dyslexia, dyscalculia, dysgraphia, and expressive and receptive language delays (P-Ex. M-3). Differentiated instruction takes place when a teacher is providing lessons for a variety of different learners, at different levels, at the same time, and must ensure that all students have access to and are understanding the material (P-Ex. M-3). In order to do so, the teacher must differentiate between the students by using different reading levels for different students, asking different questions, or providing different multi-sensory lessons and activities (P-Ex. M-3). Students are placed into reading and math groups according to their abilities, academic performance, and learning profiles but the groups are flexible and may change throughout the year based on a student’s progress or struggles during the school year (P-Ex. M-3). In each classroom there is a head teacher and associate teacher and all head teachers have at least a master’s degree and associate teachers have at least a bachelor’s degree (P-Ex. M-3). The Private School provides professional development for all teachers, related service providers, administrators, and others who work at the school (P-Ex. M-6). During the first year of employment all staff are required to attend two full weeks of professional development at the beginning of the school year (P-Ex. M-6). During the second year of employment, staff are required to attend one full week of professional development classes (P-Ex. M-6). Professional development classes also take place during staff meetings throughout the year (P-Ex. M-6).

Academic curricula are tailored to each academic group’s level, needs, and strengths and consist of research-based techniques based on New York State Common Core Standards, Orton-Gillingham, Preventing Academic Failure, Singapore Math-Math in Focus, and are supplemented with teacher-created strategies and texts tailored for each particular group (P-Ex. M-3-4). A wide range of strategies, supports, modifications, and accommodations are available and utilized to help each student reach their goals, such as adapting material to meet each student’s current level of ability, working on a one-to-one basis, re-reading and highlighting comprehension passages to help a student find answers to comprehension questions, providing word banks and sentence starters to support written expressions, creating visual or multi-sensory models to teach a concept, or engagement in extension activities to practice math problems (P-Ex. M-4). All teachers use language modification techniques as well as a multi-sensory, hands-on approach to teaching, with a focus on building on each student’s strengths (P-Ex. M-4). Language modification techniques include FM systems to amplify voices, reading directions out loud, repetition, and chunking of directions (P-Ex. M-4). In each classroom, educational materials, technology, and classroom furnishings are strategically developed to best facilitate learning for students who struggle with language-based, sensory and/or motor issues (P-Ex. M-4). Students receive small group instruction in reading and math, as well as classes in writing, science, social studies, art, library, blocks, music, social/emotional learning, current events, handwriting, and physical education (P-Ex. M-4). They also work with the students to help them learn to manage their time, organize their school work, and complete long term assignments (P-Ex. M-5). Students also engage in weekly Silent Meetings, where students engage in self-reflection, and practice staying calm while processing information (P-Ex. M-5).

Administrators and the counseling team meet prior to the beginning of the school year to review each student’s file, discuss their strengths, needs, interests, academic, and social functional levels to determine their classroom placements and strategies for individual students (P-Ex. M-6). Strategies include adapting material to each student’s level of ability, re-reading and highlighting comprehension passages to help a student find answers to comprehension questions, graphic organizers, word banks, sentence starters, visual schedules, multi-sensory models to teach a concept, and engagement in extension activities to teach skills such as supplemental exercises on websites (P-Ex. M-6-7). Weekly staff meetings take place for the administrative staff, faculty, and related service providers and supervision meetings take place weekly or bi-monthly to discuss individual students on a rotating basis, including any issues, struggles, or complications that have occurred (P-Ex. M-7).

During the 2020/21 school year, there were 15l students enrolled in the upper school of the Private School (P-Ex. M-5). Students were grouped into small advisory groups, by grade level and social and emotional needs and abilities, that consisted of five to seven students (P-Ex. M-5). Advisory groups offered checks-in on what was outstanding, additional support to understand concepts, assistance to complete assignments, and support for executive functioning skills (P-Ex. M-5).

The CSE Coordinator testified that the Student began attending the Private School in September 2019 (P-Ex. M-8). The Student was described as being easily overwhelmed in the classroom, required a significant amount of support and scaffolding, needed a modified pace of instruction, additional processing time, significant supports in executive functioning, and a significant amount of one-to-one support from teachers (P-Ex. M-8). During the 2020/21 school year, the Student attended school remotely, then in a hybrid capacity (P-Ex. L-4; T. 50, 60-61). The Student’s English class had 6 other students with very similar needs and abilities who worked on writing with a focus on improving sentences, paragraphs, and essay structure (P-Ex. M-9). The course also focused on expanding and developing students’ vocabulary and grammar skills (P-Ex. M-9). The small class allowed for direct instruction when needed, and he was provided with the use of graphic organizers to plan and structure his writing, working at a modified level of instruction with frequent repetition, and review of material to support processing needs (P-Ex. M-9). Over the course of the school year, the Student demonstrated progress in English, he was able to improve his ability to connect with and understand the topics and literature covered, his ability to receive and incorporate feedback into his work improved and he also developed the ability to contribute verbally in class discussions to demonstrate comprehension (P-Ex. M-9). Speech language services were also provided and pushed into the classroom (T. 52-55).

In math, there were a total of 6 other students in the class with similar needs and abilities (P-Ex. M-10). The math class was presented in a modified pace and was specifically designed to help students develop confidence in using mathematical functions and functional notation (P-Ex. M-10). The Student participated in lessons through whole group discussions, small group work, and independent work (P-Ex. M-10). The Student was provided with frequent teacher check-ins, direct teacher instruction, modifications to course material, prompting and redirection (P-Ex. M-10). With the supports in place, the Student made progress in math over the course of the school year, including: significant improvement in homework assignment completion, with structured support and Study hall check ins (P-Ex. M-10-11).

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]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically. Teachers monitored growth through class participation, homework, and assessments (P-Ex. I; J; M-7; M-10). Reading assessments occur approximately three times throughout the academic year, in the fall, winter, and spring; and math assessments occur before and after the completion of each math unit (P-Ex. M-7). As a result of the assessments, new strategies and enhancements would be employed, including further modifications, content, and pace of the curriculum (P-Ex. M-7). Here, the Student demonstrated academic progress and made gains with his executive functioning deficits. According to the Parent, the school year was a success in terms of the Student making great progress on his writing and reading fluency, learning strategies, and self-advocacy skills (P-Ex. L-4). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2020/21 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, obtaining their own evaluations and communicating their concerns with the District. In contrast, the District ignored the Parent’s request for an IEP meeting prior to the beginning of the 2020/21 school year.

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 2020/21 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement. 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 2020/21 school year.

SO ORDERED

DATED: November 15, 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.

EXHIBITS

District Exhibits

Ex. Description Date Pages

1 IEP 11/4/22 25

Parent Exhibits

Ex. Description Date Pages

A Notice of Unilateral Placement 8/25/2020 2

B Request for Impartial Hearing 12/8/2020 3

C Psychological Evaluation 12/7/2018 19

D Program Description Undated 2

E Re-Enrollment Contract 2/17/2020 5

F Payment Affidavit 2/3/2021 1

G Correspondence 6/11/2020 1

H Classroom Schedule Undated 1

I Semester 1 Report 9/2020-1/2021 3

J Semester 2 Report 2/2021-6/2021 4

K Transcript Undated 1

L Affidavit of Parent 9/29/2022 6

M Affidavit of CSE Coordinator 10/13/2022 11

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.