New York City Department of Education, Impartial Hearing Decision

SED # 548664 NYC # 205107

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 205107

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 19, 2020

Hearing Dates: February 14, 2022

Actual Record Close Date: February 14, 2022

Decision Date: February 23, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2022

For the Student:

[Redacted], Parent Attorney

[Redacted], Parent

[Redacted], Principal

For the Department of Education:

[Redacted], 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 19, 2020, regarding the 2019/20 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 2019/20 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 November 10, 2021. A prehearing conference was held on November 19, 2021, to discuss the issues in the case. The hearing was held on February 14, 2022, and concluded that day (See, Transcripts).^[2] The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on February 14, 2022. There was one extension 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, 5th grade student, who attended the Private School during the 2019/20 school year (P-Ex. A; J-1). The Student is diagnosed with and classified as a student with Autism (P-Ex. A; J-1). The Student was described as presenting with many academic and social delays (P-Ex. J-1). Academically, her skills were all below grade level and socially she had a hard time relating to her peers and understanding their perspectives (P-Ex. J-1). The Student would get upset very easily and it was hard to calm her down (P-Ex. J-1).

The District’s Committee on Special Education (“CSE”) met on April 9, 2019, to develop a program for the 2019/20 school year (P-Ex. A; J-1). At the meeting, the CSE changed the Student’s IEP recommendation from a 12:1:1 special class to an ICT program (P-Ex. J-1). During the meeting, the Parent expressed concerns that the ICT class was too large and would not provide the support the Student required (P-Ex. J-1).

On June 4, 2019, a speech language evaluation was conducted and new IEP meeting was held on June 6, 2019 (P-Ex. A; J-1). The CSE declined to recommend speech services (P-Ex. J-1). The Parent never received a copy of the June 2019 IEP or the speech language evaluation report (P-Ex. A; J-1). The only information the Parent received from the CSE was a placement for the ICT program (P-Ex. J-1). The Parent sent the CSE a letter on August 21, 2019, informing them of her concerns with the recommendation, the fact that she had not received a copy of the June IEP or the Speech evaluation, and requested a copy of the class profiles since the school was closed for visits during the summer (P-Ex. B; J-2). The Parent also informed the District of her intent to place the Student at the Private School for the 2019/20 school year if the District did not address her concerns (P-Ex. B).

The Parent visited the school in September 2019, and testified through her affidavit that the visit confirmed her concerns that the ICT classroom was too large for the Student and that she would not be provided the support she needed (P-Ex. J-2; C). The Parent sent the CSE another letter on September 16, 2016, again reiterating her concerns with the recommendation and the location of the ICT program, and the fact that the Student would remain at the Private School (P-Ex. C).

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 did not present a case and therefore did not meet its burden in demonstrating that FAPE was provided to the Student for the 2019/20 school year. The evidence demonstrates that the Parent was not provided with a copy of the June 2019 IEP or the speech language evaluation prior to the beginning of the school year, and there was no evidence in the record to support the CSE’s recommended change from a 12:1:1 program to an ICT program. Based on the lack evidence in the record, I find that the District 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 setting with individualized instruction that addressed her academic and social emotional needs.

The Principal of the Private School described the Private School as a special education program that offers self-contained special education classrooms hosted within mainstream school sites (P-Ex. K-1). The Private School provides students the opportunity to receive the small-full time special education programming they require for their academics, while still allowing for mainstreaming opportunities as appropriate for each student (P-Ex. K-1). Every student has an individually tailored program that addresses their unique special education needs (P-Ex. K-1).

The Student was in a specific program at the Private School for students who have significant language, social and developmental delays (P-Ex. K-1). The majority of the students in the program are classified with Autism and a strong emphasis of the program is based upon developing language skills and social development and Applied Behavior Analysis (“ABA”) methodology serves as the underpinning of the program in order to help support the behavioral and social needs of students (P-Ex. K-1). Students in the program ranged from 5-13 years old and classes were typically an 8:1:1 ratio (P-Ex. K-1). Students in each class were carefully grouped based upon academic, social and learning needs (P-Ex. K-2). The Private School also offered related services of Speech Therapy, Occupational therapy and Counseling, which were provided by service providers licensed and certified in their respective disciplines (P-Ex. K-2). The staff take part in ongoing professional development throughout the year (P-Ex. K-2).

The Student has attended the Private School since September 2018 (P-Ex. K-2). The Student was described as having significant academic and social delays which necessitated her need for a very small and intensive special education setting during the 2019/20 school year (P-Ex. K-2). Academically, the Student struggled in all areas of learning and was delayed in reading, writing and math (P-Ex. K-2). In reading, her decoding was stronger than her comprehension and in math she struggled with word problems and multi-step equations (P-Ex. K-2). The Student was a very rigid and literal thinker which made it hard for her understand abstract concepts and higher-level thinking skills (P-Ex. K-2). The Student also struggled with anxiety and regulating her emotions and when she would feel anxious her emotions would escalate very quickly, necessitating considerable 1:1 support (P-Ex. K-2). Socially, the Student wanted to have friends but due to her Autism diagnosis, had a very hard time understanding social cues and perspective taking (P-Ex. K-2). She would try to control conversations with her peers and could not appropriately manage social scenarios when her peers did not agree with her or wanted to do an activity she did not pick (P-Ex. K-2). The Student needed considerable support in developing empathy and perspective taking skills (P-Ex. K-2). To address her needs, the Student was provided with a very small and intensive special education program where she was made to feel comfortable and believed that she could learn (P-Ex. K-2).

During the 2019/20 school year, the Student was in a 7:1:1 classroom ratio, with similarly situated students (P-Ex. K-3). The class was split between two teachers, one who was a special education teacher and licensed BCBA/LBA (P-Ex. K-3). Another BCBA oversaw the classroom and helped create social goals and worked with the teachers to implement the goals and monitor the Student’s progress (P-Ex. K-3).

To address comprehension, strategies included making predictions and inferences, identifying the plot and theme in the story, as well as literary elements such as figurative language and foreshadowing (P-Ex. K-3). Teacher modeling and think alouds were used to help learn these skills, as well as significant 1:1 support and attention (P-Ex. K-3). The Student was also provided significant supports, including organizers and visual aids to aid in her understanding of the material (P-Ex. K-4).

To address the Student’s social and behavioral needs the school’s BCBA collaborated with classroom teachers and all support staff to institute goals from the Social Thinking Curriculum and underlying ABA techniques that targeted the Student’s social emotional needs (P-Ex. K-4). Classroom goals included maintaining focus and not getting distracted (P-Ex. K-4). Social-emotional goals included learning to label emotions, identifying the size of a problem and matching an appropriate reaction (P-Ex. K-4). Peer goals included developing appropriate conversation skills as well as vital perspective taking skills such as stating how her actions affected others and showing awareness by helping others (P-Ex. K-4). The Student responded very well to the direct interventions and supports provided from the social thinking curriculum (P-Ex. K-4). She was provided positive reinforcement and received feedback on a regular basis from her teachers (P-Ex. K-4). With this support, the Student displayed improved focus and an improved awareness of the needs of her peers, as well as more interactive conversation skills during social times (P-Ex. K-4).

During the 2019/20 school year the Student received weekly group and individual counseling (2x30), to address her emotional needs as well as improve her ability to socialize with peers (P-Ex. K-4). Individual counseling focused on improving the Student’s emotional awareness and help her develop coping strategies to deal with the overwhelming emotions that she experiences (P-Ex. K-4). Group sessions focused on improving her perspective taking skills, empathy for peers, as well as conversation and play skills (P-Ex. K-4). The Student’s counselor also collaborated with her teachers to help them recognize the signs when she was struggling with an overwhelming emotion, guided them to coach her to express those emotions, and helped them identify an appropriate coping strategy (P-Ex. K-5).

The Student also received weekly occupational therapy (“OT”) (2x30) to address deficits in sensory processing skills, fine-motor skills, and graphomotor skills (P-Ex. K-5). The Student’s sensory processing deficits contributed to her trouble with self-regulation in the classroom, and poor sustained attention (P-Ex. K-5). In OT the Student explored various sensory techniques that she could employ to help her replace ineffective, emotional reactions with appropriate self-soothing techniques (P-Ex. K-5). The OT collaborated with her classroom teacher to ensure that sensory breaks would be instituted as needed and the Student responded well to these sensory interventions (P-Ex. K-5). The Student also exhibited decreased core and hand strength which were worked on through mat exercises and using various manipulatives (P-Ex. K-5). The OT used a slant-board, verbal and visual cues (P-Ex. K-5). The Student also exhibited decreased graphomotor skills and had trouble organizing written material on paper (P-Ex. K-5).

In March 2020, the Private School turned to virtual, distance learning (P-Ex. K-6). The goal during distance learning was to provide a structured experience that allowed students to continue learning and receive their core academic instruction, as well as related services in a full school day (P-Ex. K-6). Instruction was provided through Zoom with breakout rooms for small group and individual instruction as needed (P-Ex. K-6). The Student responded well during distance learning (P-Ex. K-6).

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.

To assess progress, the Student was provided with assessments (P-Ex. K-3). The Student made strong progress during the 2019/20 school year (P-Ex. K). In November 2019, the Student’s instructional reading level was at a beginning 3rd grade level (Level L) and in May 2020 she scored at a mid third grade (Level N). The Principal testified that the jump from L to N was considerable progress for the Student given her struggles with comprehension skills (P-Ex. K-3). The Student also made many gains in writing skills over the school year, she learned how to write a paragraph and how to incorporate those skills to write letters and content area subjects (P-Ex. K-3). In math, the Student learned multiplication tables, short and long multiplication, division, topics in geometry, many fraction concepts, and strategies to solve math word problems (P-Ex. K-4). The Student often needed to be refocused during math and benefited from visual multi-sensory teaching (P-Ex. K-4). Based on her assessments, the Student mastered the material being taught to her and was making clear math progress (P-Ex. K-4).

During counseling sessions, the Student’s ability to identify and express her emotions progressed significantly and the Student learned to replace the targeted inappropriate behaviors with more prosocial behaviors during the structured activities presented during group counseling, with prompting and guidance (P-Ex. K-5). She learned to express her emotions with teacher prompting and was able to generalize her perspective taking skills to the classroom by expressing compliments or giving positive feedback to peers (P-Ex. K-5).

The Parent also observed the Student’s progress at the Private School and attributed it to to the small classes and individualized attention that supported her needs (P-Ex. J-2). The Parent saw improvement in her academic skills and significant progress in her social development, including her ability control her anxiety and better communicate with her peers (P-Ex. J-2). 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, including related services, for the secular portion of the Student’s unilateral placement at the Private School for the 2019/20 school year.

SO ORDERED

DATED: February 23, 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

NONE

PARENT EVIDENCE

Ex. Description Date Pages

A Due process complaint 12/19/20 three pages

B Parent letter with receipt 8/21/19 two pages

C Parent letter with receipt 9/24/19 two pages

D Contract '19/'20 two pages

E Payment affidavit 1/28/20 one page

F Provider affidavits '19/'20 two pages

G Schedule '19/'20 one page

H Tax return, 2018 two pages

I Program description/remote learning plan '19/'20 four pages

J Parent affidavit 1/6/22 two pages

K Principal affidavit 2/8/22 six pages

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.