Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 206339

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: March 15, 2021, September 12, 2022. October 6, 2022, November 30, 2022, January 5, 2023, and January 23, 2023 Record Closed Date: January 27, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the March 15, 2021 Hearing For the REDACTED REDACTED, District Representative For the Parent REDACTED, Esq., Attorney for Parent.

Names and Titles of Persons who appeared at the September 12, 2022 Hearing For the REDACTED REDACTED, Esq., District Representative For the Parent

REDACTED, Esq.

Names and Titles of Persons who appeared at the October 6, 2022 Hearing For the REDACTED REDACTED, Esq., District Representative For the Parent

None

Names and Titles of Persons who appeared at the November 30, 2022 Hearing For the REDACTED REDACTED, Esq., District Representative For the Parent REDACTED, Esq., Attorney for Parent Names and Titles of Persons who appeared at the January 23, 2023 Hearing For the REDACTED REDACTED, Esq., District Representative

REDACTED, IEP Teacher

REDACTED, Supervising School Psychologist.

For the Parent

REDACTED, Esq., Attorney for Parent

REDACTED, Parent

REDACTED, Principal of REDACTED

I. Introduction and Procedural History

On January 28, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by her parents (“Parent” or “Parents”). A pre-hearing conference was held on March 9, 2021, a pendency hearing was held on March 15, 2021, status conferences were held on October 13, 2021, December 14, 2021, March 2, 2022, May 6, 2022, July 6, 2022. Hearings were held on September 6, 2022, October 6, 2022, November 30, 2022, January 5, 2023, and January 23, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective January 27, 2023.

II. Background

Student presently attends the REDACTED School. (“REDACTED”). Parent filed a due process complaint on January 27, 2021, alleging a denial of a Free and Appropriate Public Education for the 2020-2021 school year, and requesting tuition at the REDACTED School for the 2020-2021 school year. (Exh. A). There were two days of hearing. The REDACTED submitted the IEP and supporting documents as evidence and provided witness testimony in support of its case. Parent provided affidavit testimony of a representative from the REDACTED School. Tuition was provided pursuant to pendency from January 21, 2021 until the end of the school year. Parent requests funding and/or payment of tuition for the remainder of the twelve-month 2020-2021 school year. (Exh. A).

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

An Individualized Education Program (“IEP”) meeting was held on February 27, 2020. (Exh. 1). The Committee on Special Education (“CSE”) team recommended a 12:1:1 classroom with related services. (Exh. 1). The REDACTED had two witnesses in support of the appropriateness of the IEP. The supervising psychologist, after review of the documents available during the CSE meeting testified that that “the self-contained recommendation appeared appropriate in that it would confer educational benefits in that it would support the student in the least restrictive environment.” (Tr. 120). However, neither witness attended the IEP meeting. (Tr. 113). Parent contends that no one at the CSE meeting ever worked with or had independent knowledge of Student’s needs, and failed to adequately consider the recommendations of Student’s providers. (Exh. A, page 1). The REDACTED’s witness testified that the recommended placement could have provided the recommended program for the 2020-2021 school year. (Tr. 103).

The REDACTED School is a secular special education school that provides general education curriculum adapted and modified by staff, as well as related services. (Exh. I). In addition to academics, the school offers social skills, behavioral supports, and emotional regulation techniques (Exh. K). The school accepts students ages 5-12 years old, who have a range of disabilities, including Autism, sensory processing disorders, intellectual delays, and learning delays. (Exh. P. page 2). There were 26 students in the school during the 2020-2021 school year. (Tr. 44). Students receive individualized instruction. (Exh. P, page 1). The school uses adaptations of Creative Curriculum’s multi-modality approach, as well as ABA techniques, social cognition theory, Mind Moves and Floortime. (Exh. P, page 1). There are weekly scheduled team meetings, and impromptu meetings as necessary to discuss students and progress is monitored on a daily basis. (Exh. P, page 3). There is ongoing training provided to school staff. (Exh. P. page 2).

According to the school, Student presents with weak processing and memory skills that significantly impact on her ability to comprehend and retain information and benefits from a small group setting with 1:1 and small group instruction that is individualized and presented using a multisensory approach. (Exh. P, page 3). Student was in a class of five students, ranging in age from 10 to 12 years, with one teacher and two assistant teachers. Students had similar social and emotional needs. (Exh. P, pages 2, 4). Student’s schedule for the 2020-2021 school year included social skills, physical education, social studies, spelling, literacy, gross motor, English Language Arts, math, organizational skills, arts/ music, creative literacy, activities of daily living, organizational skills, and science. (Exh. I). Student also received related services during the 2020-2021 school year. (Exh. F). Student received occupational therapy 3 x 30 minutes per week, speech and language therapy 3 x 30 minutes per week, counseling 1 x 30 minutes per week, as well as a bi-monthly parent workshop. (Exh. F, page 1). Goals were developed and addressed by Student’s teachers and related service providers. (Exh. L through Exh. O). Student is easily distractible and struggles to stay on task, and strategies were developed to address these concerns. Student continues to struggle with social skills and maintaining eye contact. (Exh. P, pages 6-7).

Student made progress during the 2020-2021 school year, academically, as well as in her related services. (Exh. L, Exh. M, Exh. N and Exh. O). She made progress in her phonemic awareness skills, although she continues to struggle with reading comprehension; she continues to need support in her writing skills and spelling. Her vocabulary has expanded, as well as her grasp of number sense. (Exh. P, pages 4-5). Since Student struggled with anxiety and social skills, and a program was designed to address these deficits, and Student has made progress in her ability to interact with peers and control her anxiety. (Exh. P, page 5). Student’s issues with attention and weak executive function skills were addressed using a variety of strategies. (Exh. P, page 5). Student made progress with learning relationship skills and socially appropriate behaviors. (Exh. P, page 7). Overall, Student made clear and consistent progress. (Exh. P, page 6).

Parent signed an enrollment contract for the twelve-month 2020-2021 school year starting July 2, 2020. (Exh. E). The contract provided for withdrawal prior to August 15, 2020 if the REDACTED located an appropriate placement. (Exh. E, page 3). Parent provided both a financial affidavit and tax returns to establish that she was unable to fund tuition and seeks reimbursement. (Exh. D and Exh. J).

Parent sent the required Ten-Day Notice on or about June 18, 2020. (Exh. B). There is nothing in the record to indicate a response. Parent filed a due process complaint on January 27, 2021. (Exh. A).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."

(Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.

2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services.

(see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED provided witness testimony of two witnesses that have never met Student, did not work with Student, and did not attend the CSE meeting. Although the REDACTED witness testified credibly regarding the REDACTED’s ability to implement the recommended program, the record is devoid of support that this recommended program was reasonably calculated to enable Student to make progress. (Tr. 103). Parents allegations regarding meaningful parental participation and predetermination were not addressed. The witnesses never met Student or spoke to anyone who did know Student about her needs. (Tr. 125). No one addressed Parent’s allegations concerning the failure of the CSE team to consider the recommendation of Student’s providers. The school personnel who did attend the meeting testified that Student would be unable to function in a 12:1:1 classroom. (Tr. 131). The identical program was found inappropriate for the prior school year and was not appealed. (Exh. B, page 3). Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not... perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Initially, this school has been found to be appropriate in at least two other cases. (Exh. B). The REDACTED has not appealed the determination of appropriateness of the placement in either case. Parent has shown, through testimony, and documentation, that the REDACTED School understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for his unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]).  The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent attended the IEP meetings. (Tr. 130). Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Tr. 140 and Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2020-2021 school year.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021 school year.
• • The REDACTED shall fund tuition at the REDACTED School for the twelve-month 2020-2021 school year within thirty days of receipt of invoice and proof of attendance.

Dated: February 7, 2023

AUDREY DANIEL, ESQ.

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 ADMITTED AT HEARING

District

EXHIBIT

NUMBERING SEQUENCE

DISCLOSURE DESCRIPTION

DATE OF EVIDENCE

NUMBER OF PAGES

1.

Individualized Education Program (IEP)

03/04/2019

21

2.

Attendance Page of IEP

03/04/2019

1

3.

Prior Written Notice (Notice of Recommendation)

05/31/2019

8

Parent

A 01/27/21 Due Process Complaint 6

B 01/19/21 Findings of Fact & Decision 17

C 06/18/20 Letter to CSE 1

D 06/10/21 Tuition Affidavit – REDACTED School 1 E 08/26/20 2020-21 Enrollment Contract – REDACTED School 5

F 2020-2021 Related Service Schedule 1

G 08/21/20 Student’s Summer 2020 Attendance Record 1

H 06/21/21 Student’s 2020-21 SY Attendance Record 1

I 2020-2021 Student Class Schedule 1

J Undated 2019 U.S. Individual Income Tax Return 3

K Undated REDACTED Program Description 3

L Various Related Service Progress Reports (speech) 4

M Various Related Service Progress Report (counseling) 2

N Various Related Services Progress Reports (OT) 2

O Various Education Progress Reports 10

P 11/29/22 Affidavit of REDACTED 7

Impartial Hearing Officer

• • None.