New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549293 - NYC: 205657

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 205657

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: January 6, 2021

Hearing Dates: February 10, 2022

March 14, 2022

Actual Record Close Date: March 20, 2022

Decision Date: April 3, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

For the Department of Education:

[Redacted], District Representative

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

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

[Redacted], Director of Private School

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 January 6, 2021, 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 19, 2021. A prehearing conference was held on December 7, 2021, to discuss the issues in the case. The hearing began on February 10, 2022, and concluded on March 14, 2022, after two days (See, Transcripts).^[2] The District presented exhibits but no witnesses. The Parent presented exhibits^[3] and two witnesses by affidavits. The record closed on March 20, 2022. There were approximately three extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old student who attended the Private School during the 2019/20 school year (P-Ex. A). The Student is diagnosed with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”), Developmental Coordination Disorder and a Specific Learning Disorder with impairment in Reading (P-Ex. A-1; ). The Student also presents with challenges related to language and social-emotional issues (P-Ex. A-1).

On May 6, 2019, the District’s Committee on Special Education (“CSE”) met to develop an IEP for the 2019/20 school year (P-Ex. B). The Parent participated in the meeting (P-Ex. B; P-1). The CSE recommended a 12:1:1 special class program with related services of counseling 2x30 minutes per week, occupational therapy 2x30 minutes per week, and speech language therapy 2x30 minutes per week (P-Ex. B). The CSE also recommended services for a 12-month school year, however the recommended public school placement, received by the Parent after the start of the 12-month school year, did not offer a 12-month program (P-Ex. B-17; P-1). According to the Parent, the Student did not require 12-month school instruction, had progressed in a 10-month program the prior school year, and did not show regression after the summer break (P-Ex. P-1).

The Parent reached out to the public school placement but did not hear back from them (D-Ex. 6; P-Ex. P-2). The Parent wrote the District to inform them and notify them that she would be placing the Student back at the Private School, where he had attended since the 2018/19 school year (P-Ex. C; P-2). In the Fall of 2019, the Parent was able to visit the public school program, however, at the time, the school could not confirm whether there would be an available spot for the Student in the recommended 12:1 classroom (P-Ex. P-2). The Parent again wrote to the District regarding their concerns about the 12:1 classroom setting (if available), the Student’s ability to elope, and the large group settings (P-Ex. D-1; P-Ex. P-2).

CONCLUSIONS OF LAW

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

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

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

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

Here, although the District did introduce documents, it did not present any witnesses to discuss the documents or present any other evidence regarding how it provided the Student with a FAPE. Based on the lack evidence in the record, I find that the District failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2019/20 school year.

PARENT’S BURDEN

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

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

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

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

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

The Director of the Private School testified and described the school as a special education school program that provides highly individualized programming and specialized therapeutic services to meet the needs of each of our students (P-Ex. O-1-2). The Private School develops a school curricula that follows State guidelines and the guidelines of the school (P-Ex. O-2). The Private School works with students, parents, teachers and administrators, to create an individualized program for each student (P-Ex. O-2). They develop goals and consider which of the myriad inclusion opportunities available with the Private School’s partner community school would be appropriate for each student (P-Ex. O-2). Beyond academic inclusion, students have opportunities to socialize with their peers throughout the day, as well as participate in co-curricular and extra-curricular activities (P-Ex. O-2). The approach is called “Inclusion by Design” (P-Ex. F-1; O-2).

During the 2019/20 school year, there were approximately 43 students in Grades one through eight (P-Ex. O-2). Classes average between five to nine students, with two to three Masters level teachers, and the entire class works together on community building and social skills (P-Ex. O-2). For academic learning, children work in even smaller groups or one-on-one with a teacher, based on their individual learning needs in each subject (P-Ex. O-3). The Private School uses a multisensory approach to provide students with different ways to learn information that might be challenging to them, integrating the use of sight, sound, speech, and touch (P-Ex. F-1; O-3).

The Director is familiar with the Student and described him as a hard worker and dedicated student, but his attentional concerns, disorganization, and tendency to rush through work, interfered with his ability to learn (P-Ex. O-3). The Student also presented with delayed academic skills and was described as needing appropriate special education supports and services to address his academic, attention, and social-emotional needs (P-Ex. O-3).

During the 2019/20 school year, the Private School created an individual plan for the Student (P-Ex. J; O-3). The Director conferred frequently with the teachers and therapists who worked with the Student and met at least once weekly with his classroom team, where they worked collaboratively to ensure that the program was appropriately addressing his academic, language/communication, social, and emotional needs (P-Ex. O-4). The Student was placed in a class of eight students, in a fifth/sixth grade class (P-Ex. O-4). Within the class, the students often broke into smaller groups for academic instruction (P-Ex. O-4).

The Student’s schedule was developed based on the Student’s academic and social-emotional needs; what related services would be appropriate; and mainstreaming opportunities with general education peers (P-Ex. O-4). There was a daily focus on developing the Student’s executive function skills; conversational and social skills with peers; and every day the Student had a Spelling/Decoding period (P-Ex. O-5). During Morning Meetings, the students worked on pro-social behavior such as sharing information, showing interest in other peers’ shared information, asking relevant questions, and agreeing or disagreeing appropriately and respectfully (P-Ex. O-6). Responsive Classroom techniques were also used in other areas, such as partner work and in stretching a students’ ability to appreciate the perspective of others (P-Ex. O-7). During the Read Aloud period, the Student had reading instruction with seven of his classmates (P-Ex. O-7). The Student worked on maintaining his focus during instruction and required a lot of teacher support and intervention, in addition to working in the small group (P-Ex. O-7). Instruction was broken down into small units and scaffolded (P-Ex. J-5; O-8). The Student had multiple periods per week of Writing instruction (P-Ex. O-8). The Student required a lot of support with math and received Math instruction in a group of two and he worked on and improved his skills in areas such as multiplication and division of fractions and mixed numbers, and in applying these skills to algorithms and word problems (P-Ex. O-9).

The Private School also provided Adaptive Physical Education/Occupational Therapy (“APE/OT”) in a group, weekly and worked on skills related to keyboarding, fine motor tasks, visual/motor/perceptual skills, bilateral motor coordination, and classroom focus; Art Therapy in a group, once per week and worked with materials such as clay and paint to create new works and worked on social-emotional skills; Language Therapy in a dyad and group, weekly and worked on communication skills with peers, verbal reasoning skills, pragmatics, vocabulary, listening/conversational skills, critical thinking, problem solving, and figurative language; Occupational Therapy (“OT”) in a dyad, weekly and worked on the same goals as in APE/OT; and Social Skills in a group, weekly and worked on learning and practicing cooperative skills, and modifying his behavior with adult facilitation (P-Ex. G-1; O-10-12).

Due to the global pandemic, the Private School began providing remote instruction on March 16, 2020, through the end of the 2019/20 school year (P-Ex. H; O-4). Small changes were made to students’ schedules to accommodate the best means of instruction for the new online format, taking into consideration factors such as social interaction, individual supports, and what would work best in a virtual format (P-Ex. G; I; O-4). The Student continued to participate eagerly and show growth in his organization, understanding, and study skills (P-Ex. J-12; O-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.

During the 2019/20 school year, the Student progressed towards a number of spelling targets. (P-Ex. J-13; P-O-5). The Student showed excellent effort and motivation, and made important gains in spelling (P-Ex. O-5). The Student mastered the skills of locating and defining terms in a glossary, recognizing and recording important terms, and made progress towards goals such as developing study and time management skills for test preparation, outlining chapters in a textbook, and recognizing nonfiction text features to use to improve his comprehension (P-Ex. J-12; O-6). In reading, the Student began the school year reading at an approximate end of third grade/beginning of fourth grade level and by the end of the school year, his reading skills were solidly at the fourth grade level (P-Ex. O-7). He mastered many targets, including making connections with knowledge he had and activating background knowledge; generating questions related to the reading; identifying a text’s setting, main character, problem, and solution; previewing a nonfiction text and predicting what will be learned; using prior knowledge to understand an unfamiliar text; scanning a text’s features and structure; and recognizing the form of a nonfiction text. (P-Ex. J-5; O-7-8). In Writing, the Student mastered many skills including: generating a topic sentence; generating a Quick Outline independently; producing a Quick Outline and a narrative paragraph; editing for capitalization errors and for punctuation errors; and taking notes from a source which follow the textual structure (P-Ex. J-10; O-8). At the start of the school year, the Student’s math skills were at an approximate fifth grade level and by the end of the school year, he had improved to an approximate sixth grade level (P-Ex. O-9). The Student had progressed in algebra concepts such as variables, writing simple expressions, and solving simple equations (P-Ex. J-8; O-9). The Student also made progress in his related services (P-Ex. O-11-13). The Parent also observed the Student make progress (P-Ex. P-2). The Student showed greater responsibility in general, and his conversational and social skills improved (P-Ex. P-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 for the secular portion of the Student’s unilateral placement at the Private School for the 2019/20 school year.

SO ORDERED

DATED: April 3, 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

Due process complaint

1/6/21 eight pages

Ten-day notice

11/15/19 two pages

Ten-day notice

8/15/19 one page

IEP

5/6/19

30 pages

Prior written notice

6/26/19 five pages

School location letter

6/26/19 three pages

Notice of IEP meeting

4/11/19 three pages

Notice of IEP meeting

5/2/19 three pages

Teacher report

7/2/18

11 pages

Neuropsychological evaluation

1/11/18 two pages

Social history update

10/15/15 three pages

Psychoeducational evaluation

10/20/15 eight pages

PARENT EVIDENCE

Ex.

Date

Description

Pages

P-A

January 6, 2021

Demand for Due Process

07 Pages

P-B

May 6, 2019

IEP

24 Pages

P-C

August 16, 2019

Letter from Parent to CSE

02 Pages

P-D

November 16, 2019

Letter from Parent to CSE

04 Pages

P-E

11/2017-1/2018

Neuropsychological Evaluation

22 Pages

P-F

(Undated)

Program Description

01 Page

P-G

2019-2020

Student’s Daily Schedule

01 Page

P-H

2019-2020

Distance Learning Plan and

02 Pages

P-I

2019-2020

Student’s Distance Learning Schedule

01 Page

P-J

2019-2020

Student’s Comprehensive Student Plan (CSP)

21 Pages

P-K

2019-2020

Student’s Attendance Record

01 Page

P-L

February 11, 2019

2019-2020 Tuition Contract

01 Page

P-M

September 23, 2020

Affirmation of Payment

01 Page

P-N

March 2, 2021

Family Tax Return

04 Pages

P-O

March 4, 2022

Affirmation of Private School Director

15 Pages

P-P

March 8, 2022

Affirmation of Parent

03 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.