New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554226 - NYC: 210327

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 210327

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: July 6, 2021

Hearing Dates: March 25, 2022

Actual Record Close Date: March 25, 2022

Decision Date: April 4, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

[Redacted], Director of Private School

For the Department of Education:

[Redacted], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about July 6, 2021, regarding the 2021/22 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2021/22 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School; related service authorizations for his related services; transportation; and adaptive equipment (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on December 20, 2021. A prehearing conference was held on January 26, 2022, to discuss the issues in the case. The hearing began on March 25, 2022, and concluded in one day (See, Transcripts).^[2] The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavits. The record closed on March 25, 2022. There were approximately two extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old, 2nd grade student who is attending the Private School during the 2021/22 school year (P-Ex. A). The Student is diagnosed with REDACTED and REDACTED (P-Ex. A-1). The Student is classified as a student with an Other Health Impairment (P-Ex. A-2; B). The Student uses leg braces, a walker, crutches, and a wheel chair for mobility and has a full-time 1:1 nurse for his medical needs in school and on the bus (P-Ex. A-2).

On February 22, 2021, the District’s Committee on Special Education (“CSE”) met to develop an IEP for the 2021/22 school year (P-Ex. B). The Parent participated in the meeting by phone (P-Ex. A-2; B; Q-2). The CSE recommended a 12:1:1 special class program; adaptive physical education; occupational therapy 3x30 minutes per week; physical therapy 5x30 minutes per week; speech language therapy 3x30 minutes per week; and a full time 1:1 nurse (P-Ex. B).

The Parent testified that when she received a copy of the IEP she was surprised by what was recommended (P-Ex. Q-2). The Parent had shared that the Student was doing well in school, but needed an intense amount of attention for him to attend to his lessons (P-Ex. Q-2). She also shared that she felt the Student would benefit from interaction with typical peers (P-Ex. Q-2). The Student’s teacher was present at the meeting and shared how the Student was doing academically (P-Ex. Q-2). According to the Parent, goals were discussed in a very general way and were not read or shown to the Parent at the meeting (P-Ex. Q-2). The Parent did not agree with the goals as they were written in the IEP (P-Ex. Q-2). The Parent did not agree with the IEP as written, because it did not incorporate all of the Student’s equipment and devices that help him learn throughout the day, such as his leg braces, a walker, crutches and a REDACTED (P-Ex. B; Q-2). The IEP also failed to recommend assistive technology and/or services (P-Ex. Q-2). The Parent also did not agree with 12:1:1 ratio since he was previously in a small group for learning (P-Ex. Q-3).

The Parent received a Prior Notice Package in the middle of June and made several attempts to make an appointment to visit the school (P-Ex. G; Q-3). The Parent notified the District that the proposed placement did not conform to the Student’s requirement of a barrier-free program (P-Ex. H; Q-3). The District did not respond to the Parent or offer the Student an alternative program (P-Ex. Q-3). She was finally given an appointment on July 6, 2022, despite asking for an earlier date so that she could make a decision prior to the start of the 12-month school year (P-Ex. H; Q-3). During the Parent’s tour of the recommended public school she learned that, in addition to the accessibility concerns, that the Student would be placed on the second floor, that the auditorium and playground were inaccessible, and that there was no adaptive playground equipment (P-Ex. Q-3-4). The Parent sent another letter to the District rejecting the program as inappropriate and notifying the District that she was unilaterally enrolling the Student at the Private School (P-Ex. I; Q-4).

CONCLUSIONS OF LAW

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

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

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

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

Here, the District did not present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 school year.

PARENT’S BURDEN

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

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

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

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

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

Finding that the District did not provide FAPE to the student during the 2021/22 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

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

The Director of the Program at the Private School testified and described the school as a not-for-profit organization that supports three schools, one being the elementary school where the Student attended (P-Ex. K; P-2). The Private School employs head teachers, assistant teachers, and school psychologists who are also Board Certified Behavior Analysts/NYS Licensed Behavior Analysts (P-Ex. P-3). Staff at the Private School are provided training, offered professional development and they have the opportunity to attend conferences (P-Ex. P-13). The Private School enrolls students from ages 5 to 14 (P-Ex. P-3). There are 5 classrooms, with 34 students enrolled in the program (P-Ex. P-3). All students have global delays and all classes provide differentiated instruction to the students (P-Ex. P-3). Students are provided with modifications and accommodations based on their individualized needs, including their behavioral needs (P-Ex. P-3).

The Student has been in the program since he turned five (P-Ex. P-3). The Student was described as very communicative and social, to the extent that he takes notice of everything that occurs around him (P-Ex. P-3). He has delays in socialization, academic skills and activities of daily living and requires extensive learning support (P-Ex. P-4). The Private School modified the classroom to minimize the distraction of providers entering the room to escort another student to therapy; instead, a classroom paraprofessional quietly escorted students outside of the classroom, meeting the therapists outside of the room (P-Ex. P-3).

There are six students in the class but instruction is delivered in one-to-one or small group settings (P-Ex. P-4). Typically, there are fewer students in the class at any given time because students are removed from the classroom for their therapies (P-Ex. P-4). Students in the class are grouped according to their learning style and needs (P-Ex. P-4). The Student requires a very small setting with individual attention to make educational progress (P-Ex. P-6).

The Student is provided with a class schedule that is modified to account for his various related services (P-Ex. L; P-4). The Student has a dense schedule of intensive teaching, which focuses on goals through one-on-one direct teaching using ABA strategies (P-Ex. P-4). The teacher keeps a data book, and data is taken consistently throughout the day on each goal (P-Ex. P-4). The Student is extremely prompt dependent and will wait for a prompt before he will perform any task (P-Ex. P-5). Based on the data, the methodology and the objectives are revised as necessary throughout the course of the school year (P-Ex. P-8).

The academic program used with the Student is based on the Functional Academic Curriculum for Exceptional Student curriculum (P-Ex. P-8). For reading, the Student is instructed 1:1 using the Reading Mastery Program which provides direct instruction (P-Ex. P-8). The Student’s language program is another direct instruction program called Language for Learning (P-Ex. P-8). At the Private School they also take skills out of the ABLLS, the Assessment of Basic Language and Learning Skills, which add components of requesting items with actions and being able to express emotions (P-Ex. P-9). The direct instruction program uses strategies of ABA, the concept of fluency, where the Student would learn things quickly and to a mastery level, before moving onto another skill (P-Ex. P-9). The program then recycles the material to ensure that the Student is maintaining the skills he previously mastered (P-Ex. P-9). The Student engages in group work that works on generalization of some of the skills that he has been taught (P-Ex. P-9). In the intensive teaching program the Student’s goals are broken down into the smallest possible components and specific and systematic teaching plans are used to teach the skill (P-Ex. P-9). The intensive teaching program is implemented by multiple people within the classroom: the teacher, the teaching assistant, the board certified behavior analyst, and the Director, to ensure that the Student does generalize his knowledge across people (P-Ex. P-9). The Student is working in a one-to-one setting for most of the time, with skills presented to the Student individually (P-Ex. P-9).

Built into the Student’s schedule there are a variety of sensory activities, fine motor skills activities, Yoga which focuses on balance and self-calming strategies and breathing techniques, and music therapy (P-Ex. P-10). The Student is also provided with social skills training (P-Ex. P-10). At the Private School they also work on ADL skills, language skills, and motor skills (P-Ex. P-10). The Student receives all of his related services through Related Service Authorizations (“RSAs”) issued by the District (P-Ex. P-11). The Parent can then choose to have the services provided either in school or outside of school (P-Ex. P-11). Providers are interviewed by the Private School and matched to students (P-Ex. P-11). The providers work with the teachers to schedule sessions and collaborate on strategies and techniques to carry over from one environment to another (P-Ex. P-11-12). The Private School provides space and equipment for all of the providers, including a gym OT area, a sensory area with a large swing and other equipment; an ADL suite where students can work on functional ADL skills; a large and small PT gym; and a speech therapy room (P-Ex. P-12). The Private School also provides parent counseling in a group and individual basis throughout the year (P-Ex. P-13).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). However, here, the Student made progress.

According to the Director, the Student made remarkable progress during the 2021/22 school year (P-Ex. P-14). Academically, the Student has shown progress in reading, specifically decoding and comprehension; in language; and in Math, specifically telling time, adding and counting (P-Ex. P-14). Socially, the Student has been working on improving his pragmatic and conversational skills and improving his eye contact when speaking to others and has shown progress in those areas throughout the school year (P-Ex. P-14). The Parent also observed progress and described that although the Student is still prompt dependent, he reads well, and shows enthusiasm to interact with his school friends (P-Ex. Q-4). The Student is using his peers as learning models to improve his independence; and he is walking more with his crutches, which also gives him more independence (P-Ex. Q-4). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2019/20 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 12-month, 2021/22 school year;
• • ORDER THAT, the District shall provide the Student with Related Services Authorization (RSA’s) for Occupational Therapy 3x30 minutes per week; Physical Therapy 5x45 minutes per week; and Speech Language Therapy 3x30 minutes per week;
• • ORDER THAT, the District shall provide the Student with special transportation, including 1:1 nursing support, limited travel time, climate control, lift bus, a route with fewer students, and walking aids;
• • ORDER THAT, the District shall provide the Student with adaptive equipment necessary, specifically but not limited to, leg braces, posterior walker and wheelchair.

SO ORDERED

DATED: April 4, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

Ex. Description Date Pages

NONE

PARENT EVIDENCE

Ex.

Description

Date

Pages

A Impartial Hearing Request 7/6/21 8

B Individualized Educational Program 2/22/21 23

C Occupational Therapy Report 2/12/21 4

D Speech and Language Therapy Report 2/15/21 2

E Physical Therapy Report 2/16/21 3

F Teacher's Report 2/17/21 3

G Prior Written Notice 6/12/21 6

H Letter to CSE 6/22/21 4

I Email to CSE 7/6/21 2

J Enrollment Agreement 9/13/21 6

K Program Description Undated 3

L Class Schedule and Profile 21-22 SY 3

M Tax Return 2020 1

N Individualized Educational Program 4/7/20 21

O Affidavit and Attendance 6/21-3/22 3

P Affidavit of Direct Testimony – School Director 3/16/22 14

Q

Affidavit of Direct Testimony – Parent undated

5

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.