New York City Department of Education, Impartial Hearing Decision

Case Number: 551333 – NYC: 207573

Student Name: [REDACTED] (hereinafter referred to as "Student")

Date of Birth: [REDACTED]

School District: [REDACTED] (hereinafter referred as "District")

Hearing Requested By: Parents

Date of Hearing: December 9, 2022

Actual Record Close Date: July 17, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

FINDINGS OF FACT & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 9, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Parent Student

[REDACTED], CSE Liaison

For the District:

[REDACTED], ESQ., District Representative

[REDACTED], School Psychologist

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for student and the parents in a due process complaint dated March 31, 2021. The primary issue to be determined at this hearing is whether the District offered the Student a free appropriate public education ("FAPE") for the 2020/21 school year (Ex. P-A). ^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program ("IEP"), which is delegated to a local Committee on Special Education (the "CSE") that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student." See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer ("IHO") typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer ("SRO"). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

On December 8, 2021, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On March 16, 2022, the parents filed an amended due process complaint. See 8 NYCRR § 200.5(i)(7). On June 24, 2022, a pre-hearing conference was held with the parties to clarify the hearing issues and set a date for the hearing (R. 1-10). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of the matter was thereafter held on December 9, 2022 (R. 12).^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the March 31, 2021 due process complaint, the Student was [REDACTED] years old and has been diagnosed with a Developmental Disorder of Speech and Language and Specific Learning Disorders in reading, writing and mathematics (Exs. P-A, P-Q at 10, SD-1 at 5). For the 2020/21 school year, the Student was enrolled for instruction at [REDACTED] (hereinafter referred to as the "Private School"). The Commissioner of Education has not approved the Private School as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The Student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, P-B, SD-1 at 1).^[3] See 8 NYCRR § 200.1(zz)(11).

At age [REDACTED], the Student relocated to [REDACTED]. The Student was enrolled in a mainstream kindergarten class at [REDACTED] (hereinafter referred to as the "Public School"), where she had difficulty keeping pace with the lessons and instructions in the large classroom setting. The Student's family elected to transition the Student to a private school, for first grade. The Student's teachers at the private school quickly noted that her skills in reading, writing, and math were behind grade-expectations. Teachers and specialists worked to support the Student by modifying both in-class and homework assignments. In second grade at the private school, the Student continued to be offered maximal supports, including small group literacy instruction lead by a learning specialist and individualized support from her teacher to initiate and complete modified assignments. Other supports were also introduced, including having the student repeat directives to ensure comprehension and ongoing modifications in homework. In addition to her longstanding literacy issues, the Student also struggled in math, particularly in mastering rudimentary computational sequence necessary in regrouping. Given her ongoing academic challenges and following teacher recommendations, the Student's parents placed her in the Private School, a specialized educational environment, in light of her delays across academic curricula (Ex. P-Q at 2).

In September 2019, the Student participated in a private neuropsychological and educational evaluation. The Student's overall intellectual functioning was measured using the Wechsler Intelligence Scale for Children – Fifth Edition ("WISC-V"), on which she achieved a Full-Scale Standard Score of 101, placing her firmly in the average range (53rd percentile). The Student demonstrated particular prowess on visual-spatial perceptual abilities, scoring in the above average range (77th percentile), with intact performance across measures of fluid reasoning (66th percentile) and processing speed (45th percentile). Conversely, she had relative hardship on tasks of verbal comprehension (30th percentile), with normative difficulty on measures of working memory (21st percentile) (Ex. P-Q at 3).

The Student's functioning in reading, writing and mathematics was assessed using the Woodcock-Johnson IV Tests of Achievement ("WJ-IV"). The Student scored below average or well below average in all areas except one, applied problems (Ex. P-Q at 14). The clinical neuropsychologist concluded that the results of the evaluation revealed that the Student's ongoing deficits have significantly hindered her academic progression (Ex. P-Q at 10).

With respect to placement, the clinical neuropsychologist stated:

[I]t is imperative that [the Student] continues to be placed in a small, structured, full-time special-education school setting that can provide her with special education supports throughout the entire school day. In addition to a small school setting, [the Student] continues to require a small, structured language-based classroom setting with a low student to teacher ratio with less than twelve students, wherein she can be provided with multi-sensory instruction and more individualized attention. She also requires small group instruction with similar functioning peers (Ex. P-Q at 10).

The CSE convened on December 19, 2019 to develop an IEP for the Student through December 2020. The CSE recommended that the Student receive the majority of her instruction in a general education classroom with integrated co-teacher ("ICT") services in a community school.^[4] The CSE also recommended that the Student receive related services of: group (2:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, one time per week for thirty (30) minutes per session; and group (3:1) speech/language therapy, one time per week for thirty (30) minutes per session (Ex. SD-1 at 23-24, 28).

On February 6, 2020, the parents entered into an enrollment contract with the Private School for the 2020/21 school year (Exs. P-F, P-P at ¶ 21). On August 25, 2020, the parents wrote to the CSE to state that: they had not received a school placement, they were rejecting its proposed program for the Student, and they intended to unilaterally place the Student at the Private School for the 2020/21 school year at public expense (Ex. P-C).

On August 31, 2020, the CSE mailed the parents written notice of its recommended program for the Student for the 2020/21 school year and a school location letter placing the student at the Public School for the 2020/21 school year (Exs. SD-1, SD-2, P-B at 3, P-P at ¶ 17). In a letter dated November 4, 2020, the parents acknowledged receiving the school location letter but indicated that they had been unable to contact the Public School's parent coordinator (Ex. PD). Following a February 2021 CSE meeting, the Student's mother spoke with a school social worker at the Public School and determined that the school would not be able to implement the Student's IEP (Ex. P-B at 3, P-D at 1, P-P at ¶ 12). In a letter dated November 4, 2020, the parents advised the CSE of their concerns about the recommended placement and of their continued intent to have the Student educated at the Private School at public expense (Ex. P-D at 1). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The District

The parents' claim for tuition reimbursement and/or direct payment of the Student's tuition to the Private School for the 2020/21 school year should be denied. The District offered the Student a FAPE for the 2020/21 school year. The parents have failed to meet their burden to show that the Private School was an appropriate placement for the Student (R. 32-33, 85-86).

B. The Parents

The District should be ordered to reimburse the parents, and/or directly pay, for the Student's unilateral placement at the Private School during the 2020/21 school year. The District denied the Student a FAPE during the 2020/21 school year. The Private School provided the Student with specifically designed instruction to meet her unique educational needs. The Student made significant progress in all academic areas while at the Private School. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for the private educational instruction and services provided to the Student during the 2020/21 school year (R. 81-85; Exs. P-A, P-B).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). ^[5]

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

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. See 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." See Rowley, 458 U.S. at 203. The "IDEA, [however,] 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. "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment ("LRE"). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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, 2012 WL 4946429 (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); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). ^[6] 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Recommended Public Program

1. Annual Goals

In their complaint, the parents assert that there are no academic goals in the IEP (Ex. P-B at 2). An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); 8 NYCRR § 200.4(d)(2)(iii)(b). From the evidence contained in the hearing record, I find that the December 2019 IEP including academic goals which were designed to meet the Student's needs resulting from her disability and would enable her to make progress in the general education curriculum. The December 2019 IEP included two math goals, two writing goals, a spelling goal, four reading goals, three occupational therapy goals, and three speech/language therapy goals. The math goals addressed computation (solving one digit addition and subtraction equations) and word problems. The writing goals addressed sentence development (including who, what, where information in her sentences) and sentence structure (identify fragmented from complete sentences). The reading goals addressed comprehension, decoding and fluency. The occupational therapy goals addressed sensory motor skills (copying), hand skills (replicating designs) and learning-behavior skills (stay on task, check work). The speech/language goals addressed receptive and expressive language (Ex. SD-1 at 11-23). The school psychologist who chaired the December 2019 meeting credibly testified that the recommended goals contained sufficient detail to be implemented in the classroom (R. 38, 40, 43-44).

2. Size of ICT Class

Although the parents maintain that an ICT classroom would have been too large for the Student to receive individualized teacher support and modified instruction that she required in order to learn, they do not cite to any specific evidence in the hearing record to support their allegations, other than a prior experience "in a small classroom within a mainstream school" in which the student "struggled significantly" and the recommendation of the clinical neuropsychologist (Exs. P-A at 2-4, P-B at 2-5, P-C at 1, P-D at 1, P-P at ¶ 9).

The hearing record reflects that the Student was last enrolled in a mainstream school for kindergarten (Ex. P-Q at 2). The Student was scheduled to attend the fourth grade during the 2020/21 school year (Ex. P-O at ¶¶ 34-35). Even assuming, arguendo, that the Student's kindergarten experience is relevant to a FAPE analysis of the recommended ICT program, I find that there is insufficient evidence contained in the hearing record which would allow for any meaningful comparison of those programs. With respect to the parents' argument that the December 2019 CSE ignored the clinical neuropsychologist's recommendation that the Student be placed in a small, structured, full-time special-education school setting (Exs. P-B at 4-5, P-Q at 10), the hearing record indicates that the December 2019 CSE considered the November 2019 private neuropsychological evaluation (Ex. SD-1 at 1-2) but as permitted under the IDEA – decided not to adopt its placement recommendation (Ex. SD-1 at 28, 30). See J.D. v. New York City Dep't of Educ., 2015 WL 7288647, at *14 (S.D.N.Y. Nov. 17, 2015); T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 340 (S.D.N.Y. 2013) (stating that "'although a CSE is required to consider reports from private experts, it is not required to follow all of their recommendations'"), quoting M.H. v. New York City Dep't of Educ., 2011 WL 609880, at *12 (S.D.N.Y. Feb. 16, 2011); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *11 (S.D.N.Y. Aug. 5, 2013) (holding that "the law does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing the IEP"); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (2004).

C. Recommended Placement

1. Timing of Placement Offer

The parents assert that they did not receive a school placement prior to the start of the 2020/21 school year which denied the Student a FAPE (Ex. P-B at 2).

In general, the IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6.^[7] Although not explicitly stated in federal or State regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a school district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP. See T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016) ("a parent must necessarily receive some form of notice of the school placement by the start of the school year"); Tarlowe, 2008 WL 2736027, at *6 (a school district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year). Recent district court authority within the Second Circuit has indicated that a parent has a right to obtain information about an assigned public school site. See H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 (S.D.N.Y. Jan. 11, 2019) (noting that "courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"); F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 (S.D.N.Y. Sept. 21, 2015) (finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"); V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 (E.D.N.Y. 2014) (finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"); C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 (S.D.N.Y. May 27, 2014) (holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it).

In a school location letter dated August 31, 2023, the DOE advised the parents that the Student's recommended program for the 2020/21 school year would be implemented at the Public School (Ex. SD-2 at 7). It is unclear from the hearing record, however, when the parents actually received that school location letter. In a letter to the CSE dated November 4, 2020, the parents note that "we received a school location letter placing [the Student] at [the Public School for] the 2020-2021 school year" but they do not specify the date when they received that letter (Ex. P-A at 3, P-B at 3, P-D at 1). Similarly, in her affidavit, the student's mother stated that she received the school location letter placing the Student at the Public School "after the meeting" but does not specify when that occurred (Ex. P-P at ¶ 17). Given that the District waited over eight months following the December 2019 meeting to mail the parents its school location letter, and in the absence of any evidence of the mailing procedures in place at that time in the relevant CSE region, I cannot simply assume that the parents received the school location letter prior to the start of the 2020/21 school year. At the impartial hearing, the District was the party that carried the burden of production and persuasion regarding whether it met the procedural requirements of the IDEA and whether it timely arranged for the provision of appropriate special education programs and services. See N.Y. Educ. Law § 4404(1)(c). In the absence of such evidence, it must be found that the District failed to demonstrate that its school location letter was timely. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 22-136 at 12-13 (SRO Dec. 1, 2022). Having determined that the District failed to demonstrate that it complied with the regulatory timeframe for implementing the December 19, 2019 IEP, relief is only warranted after a determination is made that the District's failure to do so deprived the Student of a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); see also A.H. v. New York City Dep't of Educ., 394 Fed. App'x 718, 720 (2d Cir. Aug. 16, 2010); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); Jusino v. New York City Dep't of Educ., 2016 WL 9649880, at *6 (E.D.N.Y. Aug. 8, 2016), aff'd, 700 Fed. App'x 25 (2d Cir. July 7, 2017); A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 688 (E.D.N.Y. 2012), aff'd, 513 Fed. App'x 95 (2d Cir. Mar. 12, 2013); Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 300 (S.D.N.Y. 2010); M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 501 (S.D.N.Y. 2008). Review of the hearing record in this matter shows that the District's delay in notifying the parents of the school that the Student was assigned to attend to receive the educational programming recommended in the December 19, 2019 IEP significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student.

Here, the CSE convened on December 19, 2019 to develop a program for the Student with an implementation date of January 16, 2020 (Ex. SD-1 at 1). Yet it was not until over eight months later that the District sent the parents a prior written notice and school location letter (dated August 31, 2020) which informed them of the Student's assigned school for the 2020/21 school year (Ex. SD-2 at 7). While the school location letter included contact information, when the parents attempted to contact the school's parent coordinator, they received no response from anyone at the school (as of November 4, 2020) to address their questions and concerns (Ex. P-D).

Although the December 2019 IEP expired on December 19, 2020, a subsequent IEP meeting was not held until February 9, 2021 (Exs. SD-1 at 1, P-B at 2). The CSE reportedly recommended that the Student received the majority of her instruction in a general education setting with the supports of ICT services and special education teacher support services ("SETSS") (Ex. P-E at 1). On February 22, 2021, the parents received a school location letter again placing the Student at the Public School. The parents spoke with the school social worker about the placement and, on March 3, 2021, wrote to the CSE about their concerns with the placement (Exs. P-B at 3, P-E at 1). The CSE, however, failed to respond to any of the concerns raised by the parents in their August 25, 2020, November 4, 2020 or March 3, 2021 letters (Exs. P-C, P-D, P-E).

Based on the unique circumstances described above, I find that the District's failure to demonstrate that it provided the parents with a timely school location letter rose to the level of a denial of a FAPE.

2. Assigned Public School Site

The parents assert that the recommended placement, cannot meet the Student's IEP mandate of a co-taught science class because it lacks two science teachers (Exs. P-A at 3, P-B at 3, P-E at 1). The Student, however, never attended the Public School site and, accordingly, any implementation claims regarding the assigned school are impermissibly speculative. Generally, the sufficiency of the program offered by a school district must be determined on the basis of the IEP itself. See R.E., 694 F.3d at 186-88. The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 (2d Cir. May 8, 2015); R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 (2d Cir. Mar. 19, 2015) ("declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"), quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 (2d Cir. 2009); R.B., 589 Fed. App'x at 576. However, a school district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP. See M.O., 793 F.3d at 244; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see also C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 (2d Cir. 2014) (holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site).

The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP." M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 (2d Cir. Aug. 24, 2016); J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 (2d Cir. Mar. 16, 2016); B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 (2d Cir. Dec. 30, 2015). Such challenges, however, must be "tethered" to actual mandates in the student's IEP. See Y.F., 659 Fed. App'x at 5.

Additionally, the Second Circuit has indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so. See M.O., 793 F.3d at 244. In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP. See M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 (S.D.N.Y. Jan. 26, 2018); Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 (S.D.N.Y. Nov. 28, 2016); L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 (S.D.N.Y. Sept. 27, 2016); G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 (S.D.N.Y. Sept. 19, 2016); M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 (S.D.N.Y. Mar. 29, 2016). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate. See K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 (S.D.N.Y. Mar. 31, 2016); Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 (S.D.N.Y. Mar. 7, 2016); N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 (S.D.N.Y. Feb. 11, 2016). At the outset, the parents' claims regarding the provision of ICT services to the Student was not borne out by the evidence, as the Student never attended the assigned Public School site pursuant to the December 2019 IEP. Any conclusion that the District would not have implemented the Student's IEP or that the assigned Public School site could not have met the Student's needs would necessarily be based on impermissible speculation, and the District was not obligated to present retrospective evidence at the impartial hearing regarding the execution of the Student's programming under the IEP or to refute the parents' claims. See R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 (2d Cir. Oct. 29, 2014); F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 (2d Cir. Jan. 8, 2014); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 (2d Cir. July 24, 2013); R.E., 694 F.3d at 187 & n.3. In view of the foregoing, the parents cannot prevail on their claim regarding implementation of the ICT services recommended in the December 2019 IEP.

D. Appropriateness of the Private School

Given my finding that the District failed to provide the Student with a FAPE during the 2020/21 school year, I turn to the appropriateness of the parents' private program. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be "proper under the Act," see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student's special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student's potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent's unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." Id. at 364; see also Gagliardo, 489 F.3d at 115. A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of the CSE Liaison for the Private School and the parent, I find that the Private School was an appropriate program for the Student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 73-79; Exs. P-I, P-J, P-K, PN, P-O, P-P).

The mission of the Private School is to identify students of average-to-superior intelligence who have been unsuccessful in learning to read and write, and to teach them, using a research-based program and highly trained teachers, the skills they need to be successful to transition to a general education school setting when they are finished at the Private School (Ex. P-O at ¶ 7). The Private School's program is based on Orton-Gillingham principles: the instructional program is structured, sequential and multisensory in nature (Ex. P-O at ¶ 15). The Private School's teachers uses Preventing Academic Failure ("PAF"), which is based on OrtonGillingham principles but adapted for use with small groups of students. PAF effectively prevents, lessens, or eliminates reading difficulties (Ex. P-O at ¶ 16). Instruction is differentiated through homogenous grouping, progress monitoring, scaffolding, review, re-teaching, and extra support in classes, during lunch or during focus periods (Ex. P-O at ¶ 19). Total enrollment at the Private School's three campuses at the start of the 2020/21 school year was 941 students; 348 of whom attended the Private School's [REDACTED] campus (Ex. PO at ¶ 6). Most Private School classes have a lead teacher and an assistant teacher. Generally, the student-teacher ratio is about four students to one teacher. Class sizes at the Private School are in the 6 to 10 range for ELA and math, and in the 9 to 13 range for homeroom, social studies, and science. The Private School also offers some 1:1 tutorial classes (Ex. P-O at ¶ 14). During the 2020/21 school year, the Student had access to direct, sequential, multisensory language-based instruction in the skills required for reading and spelling. Her classes were small, the instructional program was research-based, and she was grouped with students of at least average intelligence with similar skill development needs (Ex. P-O at ¶ 35). At the start of the 2020/21 school year, the Student presented with weaknesses in decoding and spelling more challenging words, difficulties with appropriate pace, accuracy and appropriate expression when reading orally, and some difficulties formulating responses to more challenging reading comprehension questions (Ex. P-O at ¶ 38). To address those weaknesses, the Student received direct, multisensory and sequential skill-based language arts instruction three periods daily. The Student's teacher reported that she made significant gains in her reading and writing skills over the course of the 2020/21 school year (Ex. P-O at ¶ 39). At the Private School, progress is measured through direct observation of student work, school-based and standardized measures, and program-based proficiency measures (Ex. P-O at ¶ 43). The Private School test grid suggests that the Student made significant gains in her skills during the 2020/21 school year (Exs. P-K, P-O at ¶ 44). Likewise, progress reports at the end of the 2020/21 school year documented proficiency in almost all the skills addressed in the Student's instructional program at the Private School (Exs. P-J, P-O at ¶ 44).

D. Relevant Equities

The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). "Courts fashioning discretionary equitable relief under [the] 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 placement was unreasonable." Carter, 510 U.S. at 16.

The IDEA also provides that reimbursement and/or direct payment 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. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).

The relevant equities support an award of tuition reimbursement and/or direct payment for the Student's placement at the Private School during the 2020/21 school year. In letters dated August 25, 2020, November 4, 2020 and March 3, 2021, the parents provided the District with adequate written notice of their intent to make a unilateral placement of the Student at the Private School at public expense (Ex. P-C, P-D, P-E). There is also no evidence indicating that the parents were uncooperative with the CSE (Exs. SD-1, SD-2) see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the Student's tuition to the Private School unreasonable given the severity of the Student's educational needs (Exs. P-F, P-L, P-Q), see Carter, 510 U.S. at 16.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The parents' claim that the Student was denied a free appropriate public education (FAPE) for the 2020/21 school year is SUSTAINED; and

2. Within thirty (30) days of its receipt of this Order, the District shall reimburse the parents and/or directly pay the Private School for all costs associated with the Student's placement there for the 2020/21 school year.

Dated: July 20, 2023

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

A. Due Process Complaint/Impartial Hearing Request, 3/31/21, 6 pgs.

B. Amended Due Process Complaint/Impartial Hearing Request, 3/16/22, 6 pgs.

C. Parent Letter w/ confirmation receipt (ten-day notice, 8/25/20, 3 pgs.

D. Parent Letter w/ confirmation receipt (re: placement), 11/4/20, 2 pgs.

E. Parent Letter w/ submission receipt (re: placement), 3/3/21, 3 pgs.

F. Enrollment Contract (2020/21), 2/6/20, 3 pgs.

G. Class Schedule, 2020/21, 1 pg.

H. Attendance Report (2020/21), 6/14/21, 4 pgs.

I. Fall 2020 Progress Report, 11/2020, 8 pgs.

J. Spring 2021 Progress Report, 6/2021, 10 pgs.

K. Test Results, various dates, 1 pg.

L. Tuition Affidavit, 10/7/20, 1 pg.

M. Proof-of-Payments, various dates, 4 pgs.

N. Program Description, undated, 2 pgs.

O. Affidavit – CSE Liaison, 11/30/22, 11 pgs.

P. Affidavit – Parent, 12/6/22, 9 pgs.

Q. Neuropsychological & Educational Evaluation, 11/2019, 15 pgs.

SCHOOL DISTRICT

1. Individualized Education Program (IEP), 12/19/19, 31 pgs.

2. Prior Written Notice (PWN), 8/31/20, 8 pgs.

IMPARTIAL HEARING OFFICER

I. Extension Order, 1/22/22, 1 pg.

II. Extension Order, 2/21/22, 1 pg.

III. Extension Order, 3/23/22, 1 pg.

IV. Extension Order, 4/22/22, 1 pg.

V. Extension Order, 10/18/22, 1 pg.

VI. Extension Order, 11/17/22, 1 pg.

VII. Extension Order, 12/17/22, 1 pg.

VIII. Extension Order, 1/16/23, 1 pg.

IX. Extension Order, 2/15/23, 1 pg.

X. Extension Order, 3/17/23, 1 pg.

XI. Extension Order, 4/16/23, 1 pg.

XII. Extension Order, 5/16/23, 1 pg.

XIII. Extension Order, 6/15/23, 1 pg.

XIV. Extension Order, 7/15/23, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as "R." References to exhibits admitted into evidence are noted as "Ex."

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties' respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents' due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 7-9, 87-88; Exs. IHO-I – IHO-XIV).

[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance. 8 NYCRR § 200.1(zz)(11).

[4] State regulation defines ICT services as the "provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." 8 NYCRR § 200.6(g). In addition, State regulation requires that personnel assigned to each class providing ICT services "shall minimally include a special education teacher and a general education teacher," and each such class "shall not exceed 12 students" with disabilities. See 8 NYCRR §§ 200.6(g)(1)-(2).

[5] The term "free appropriate public education" means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[6] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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." See Endrew F., 137 S. Ct. at 1000.

[7] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following." See N.Y. Educ. Law § 2(15).