Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Names and Titles of Persons who appeared at the August 2, 2023 Hearing For the [REDACTED]: [REDACTED], Esq., Agency Attorney

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

Names and Titles of Persons who appeared at the August 10, 2023 Hearing For the [REDACTED]: [REDACTED], Esq., Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Special Education Director, [REDACTED]

[REDACTED], Finance Administrator, [REDACTED]

I. Introduction and Procedural History

On July 6, 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 his parents ("Parent" or "Parents"). A prehearing conference was held on September 10, 2021, status conferences were held on December 15, 2021, January 24, 2022, April 12, 2022, January 3, 2023, February 6, 2023, March 20, 2023, April 5, 2023, May 8, 2023, June 6, 2023, and July 7, 2023. Hearings were held on August 2, 2023 and August 10, 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 August 15, 2023.

II. Background

Parent filed a due process complaint on July 6, 2021, alleging a denial of a Free and Appropriate Public Education for the 2021-2022 school year, and requesting tuition at [REDACTED]. (Exh. A). There were two days of hearing. Parent had three witnesses at hearing who provided direct testimony by affidavit, including Parent, and the educational director, and financial officer from [REDACTED]. All witnesses were available for cross-examination.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student has been receiving the requested placement pursuant to a pendency agreement dated September 7, 2021, providing for services starting the date of the due process complaint, July 1, 2021, based on an unappealed Findings of Fact and Decision finding the same program appropriate. (Exh. A).

An IEP meeting was held on March 2, 2021. (Exh. 1). The [REDACTED] did not provide witnesses during the hearing, rested on the evidence and waived its right to put on a direct case. (Tr.56). Only the relevant IEP, attendance page, attendance page, notice of reevaluation and Prior Written Notices were submitted as evidence. (Exh. 1- Exh. 5).

Student attended [REDACTED] for the twelve-month 2021-2022 school year. The school provides students with 1:1 ABA instruction, as well as occupational therapy and speech and language therapy. Related services are provided by a licensed provider, and there is significant collaboration among providers. (Exh. R page 2). There is significant professional development, and extensive parent training and counseling, including individual and group training and home visits as needed. (Exh. R, page 2).

There were twenty-one students for the 2021-2022 school year ranging in age from 3-21; there were four classrooms grouped by age and developmental levels. (Exh. R, page 2). While the instructional model is 1:1 intervention, students had the opportunity to work on group, social and leisure skills with peers as appropriate. (Exh. R, page 3). Students are assessed across a variety of domains at the beginning of the school year, and skill inventories are conducted to determine gaps. (Exh. R, page 3). The program is data driven and adapts constantly to address needs and progress. (Exh. R, page 3).

Student has been attending [REDACTED] since 2010; he presents with Autism, cognitive functioning in the extremely low range, and significant delays in all domains, as well as only limited verbal communication. (Exh. P, page 1 and Exh. R, page 4). Student was in a class with four other students; each student worked with a 1:1 instructor with a supervisor. (Exh. R, page 4). An Individualized Education Plan was developed and implemented for the school year. (Exh. D). Prior to its development, evaluations were conducted to assess Student's strengths and needs. (Exh. E and Exh. G). A Behavior Intervention Plan was developed to address Student's interfering behaviors, including squeezing others and "fixing" his learning environment. (Exh. K and Exh. R, pages 5-6). Student received individual occupational therapy daily for forty-five minutes, as well as a sensory diet implemented by staff. (Exh. R, page 6).

Student made progress during the 2021-2022 school year, including academically and Activities of Daily Living. (Exh. L and Exh. R, page 6). Student made progress in occupational therapy and speech and language therapy. (Exh. F, Exh. H and Exh. R, page 7). Student also gained skills in both the community and workplace settings. (Exh. P, page 3).

Parent signed an enrollment agreement on July 1, 2021. (Exh. N). [REDACTED] operates on a service-based model and bills separately for 1:1 ABA instruction, supervision and related services. (Exh. Q, page 1). As Student was provided for services pursuant to pendency, and Parent showed she was unable to pay tuition, Parent is requesting direct funding of tuition. (Exh. O and Exh. P).

A Ten-Day Notice was submitted on March 2, 2021. (Exh. B). There is nothing in the record to indicate a response. (Exh. P, page 2). Parent filed a due process complaint on July 1, 2021. (Exh. A). As above, the school was found appropriate for previous as well as subsequent school years and was the basis for the pendency agreement signed by the [REDACTED]. Further, [REDACTED] was found appropriate for the 2022-2023 school year, in an unappealed Findings of Fact and Decision for case number 229579.

The [REDACTED] requested significant information pursuant to a subpoena signed on July 7, 2023. Upon information and belief, [REDACTED] provided all requested information. (Tr. 58-9).

During the hearing, I notified the parties that, as Student received pendency services for the entirety of the 2021-2022 school year, my inquiry into the appropriateness of the unilateral placement would be limited. (Tr. 203-204). However, given the [REDACTED]'s concerns regarding the services provided, I provided the [REDACTED] with an opportunity to propose language for the final order. (Tr. 205). The [REDACTED] declined to do so and the record was closed on the agreed date for submission.

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] submitted evidence but rested without otherwise putting on a case. Therefore, the [REDACTED] did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL ^[1]

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).

Although the [REDACTED] argues that Parent has not met her burden of proof that [REDACTED] is an appropriate placement, I disagree. Parent has shown, through testimony, and documentation, that [REDACTED] understands Student's unique educational needs and designed a program to address these needs. Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her 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 contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). However, the [REDACTED] raised significant concerns regarding the signing of the agreement that did not specifically provide for full tuition and provided [REDACTED] with considerable discretion in unilaterally adding services. (Tr. 92-5, 121, 191). I agree and require [REDACTED] to provide documentation to show that the services were provided. (Exh. N, page 4). Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year, and tuition shall be paid within thirty days of receipt of invoice and documentation concerning the provision of services.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] failed to provide Student a Free and Appropriate Public Education for the 2021-2022 school year.

2. Parent is entitled to funding and/or reimbursement for tuition at [REDACTED] for the twelve-month 2021-2022 school year. To the extent that payments were not paid under the pendency agreement, the [REDACTED] shall pay invoices within thirty (30) days of receipt of this Findings of Fact and Decision, as well as receipt of invoice and proof of attendance and delivery of services.

Dated: August 29, 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

1. District IEP, dated 3/2/21, 28 pages DOE

2. Attendance Page, dated 3/2/21, 1 page DOE

3. Notice of Annual Review, dated 2/23/21, 3 pages DOE

4. PWN, dated 6/13/21 4 pages DOE

5. PWN, dated Parent 11/17/21 4 pages DOE

DATE DOCUMENTS PAGES

P-A. Demand for Due Process and Pendency 07 Pages July 1, 2021

P-B. Individualized Education Plan (IEP) 25 Pages [REDACTED] March 2, 2021

P-C. Letter from Parent to NYC[REDACTED] (with fax confirmation) June 21, 2021 04 pages

P-D. Student's Individualized Education Plan 08 Pages [REDACTED] Learning Center 2021-2022

P-E. Speech and Language Evaluation 13 Pages By: [REDACTED], CF-SLP, TSSLD and [REDACTED], MA, CCC-SLP, TSSH [REDACTED] Learning Center April 26, 2021

P-F. Speech and Language Progress Report 05 Pages By: [REDACTED], MS, CCC-SLP [REDACTED] Learning Center December 14, 2021

P-G. Occupational Therapy Evaluation Report 11 Pages By: [REDACTED], MS, OTR/L [REDACTED] Learning Center June 2021

P-H. Occupational Therapy Progress Report 04 Pages By: [REDACTED], MS, OTR/L [REDACTED] Learning Center December 2021

P-I. Occupational Therapy Evaluation 09 Pages By: [REDACTED], OTR/L [REDACTED] Learning Center June 2022 14 pages

P-J. Student's Schedule 01 Page 2021-2022

P-K. April 12, 2022 Behavior Intervention Plan By: [REDACTED], MSED, BCBA [REDACTED] Learning Center 02 pages

P-L. Educational Progress Report 05 Pages By: [REDACTED] [REDACTED] Learning Center May 26, 2022

P-M. Student's Attendance Record 01 Page By: [REDACTED] [REDACTED] Learning Center July 1, 2022

P-N. Services Enrollment Agreement 04 Pages [REDACTED] Learning and Developing, LLC July 1, 2021

P-O. 2020 Family Tax Return 02 pages

P-P. Affirmation of [REDACTED] August 7, 2023 03 pages

P-Q. Affidavit of [REDACTED] 48 Pages August 7, 2023

P-R. Affidavit of [REDACTED] 09 Pages Impartial Hearing Officer None. August 7, 2023

Footnotes

[1] As stated above, Parent and Student received the requested relief pursuant to a pendency agreement that covered the entire school year. However, as the SRO has held that "pendency placement and appropriate placement are separate and distinct concepts", a short analysis is provided. (See, e.g., Application of a Child with a Disability, No. 20-195.