Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 210485

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: September 15, 2023 and September 22, 2023 Record Closed Date: September 22, 2023

Hearing Officer: Audrey Daniel, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE SEPTEMBER 15, 2023 HEARING

For the [REDACTED]: [REDACTED], Esq., Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE SEPTEMBER 22, 2023 HEARING

For the [REDACTED]: [REDACTED], Esq., Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

I. INTRODUCTION AND PROCEDURAL HISTORY

On December 21, 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 pre-hearing conference was held on January 5, 2022, and two days of hearing were held on September 15, 2023 and September 22, 2023. Numerous status conferences were held in an attempt to facilitate settlement. 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 September 22, 2023.

II. BACKGROUND

Student presently attends the [REDACTED]. ("[REDACTED] Academy" or "[REDACTED]"). Parent filed a due process complaint on July 9, 2021, alleging a denial of a Free and Appropriate Public Education for the 2021-2022 school year, and requesting tuition at [REDACTED] for the 2021-2022 school year, as well as round trip door-to-door special education transportation. (Exh. A). There was one day of hearing. The [REDACTED] submitted evidence but did not otherwise put on a case. Parent provided direct testimony of two witnesses by affidavit, Parent, and a representative from [REDACTED]. The [REDACTED] declined the opportunity to cross examine either witness. (Transcript).

III. DISCUSSION

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student received the requested program pursuant to a pendency agreement based on the same fact pattern from the previous year. The IEP is in evidence, but the [REDACTED] did not argue that FAPE was provided for the 2021-2022 school year. No further discussion regarding the appropriateness of the IEP is necessary. The IEP, however, provided for special education transportation, including transportation from the closest safe curb location, air conditioning, climate control, and 1:1 transportation paraprofessional. (Exh. 3, page 29).

Student attends the [REDACTED] Academy. The [REDACTED] Academy is a program that provides comprehensive services for students who are severely disabled, including students with brain-based disorders who participate in academic instruction with appropriate modification and adaptation, as well as therapeutic services. (Exh. N and Exh. S, pages 2-3). The school provides a multidisciplinary and collaborative program using medical, clinical, and educational interventions and is a twelve-month extended day program. (Exh. N, page 2). There are extensive related services, including health and nursing services, aquatic therapy, vocational development, and behavior therapy support. (Exh. N, page 4). There is extensive use of assistive technology, and an intensive ADL program. (Exh. S, pages 4-5). There were 77 students from age 5-21, and the fifteen classes are grouped by age, developmental level, and ability to learn and interact in the classroom. (Exh. S, page 3). There are small classes, and each student is assigned a 1:1 paraprofessional at all times and a variety of modified curriculum is used. There is an intensive Activities of Daily Living program, as well as related services using a combination of push in and pull-out models and there is an interdisciplinary team for each student that collaborates frequently. (Exh. S, pages 4-6). The teachers hold or are working towards master's degrees, and the faculty and staff have the same qualifications as the [REDACTED]; significant professional development is held throughout the year. (Exh. S, page 9). A remote learning program was developed and utilized during Covid. (Exh. M).

Student has a diagnosis of [REDACTED] which causes global developmental delays and frequent daily seizures. (Exh. E). The staff at [REDACTED] conducted an educational evaluation for the 2021-2022 school year. (Exh. E). The evaluators determined that Student required a 6:1:1 class and be provided 1:;1 support throughout the instructional day. (Exh. E, page 1 and Exh. S, page 11). She needs a 1:1 paraprofessional to assist for all aspects of daily living, as well as speech therapy, occupational therapy and physical therapy. (Exh. E, page 1). An occupational therapy evaluator recommended occupational therapy four times per week for sixty minutes to address her motor and processing skills. (Exh. F, pages 7-8). Physical therapy was recommended after a thorough evaluation at a frequency of five times per week for sixty minutes to address Student's mobility and gross motor issues. (Exh. G, pages 7-8). Her annual speech language pathology evaluation indicated a continued need for individual speech language therapy four times per week for sixty minutes to address communication deficits. (Exh. H, pages 1, 7-8). Parents were recommended to receive 1 x 60 minutes per month of Parent Counseling and Training. (Exh. S, page 12). The staff at [REDACTED] developed their own IEP to address these deficits and to develop goals and objectives in all domains for the school year. (Exh. J).

Student's schedule for the 2021-2022 school year included literacy, social studies, one to one independent reading, science, "literacy fun" and music therapy. (Exh. K). Her schedule also included math, Activities of Daily Living skills and social skills development. (Exh. L).

Student made progress during the 2021-2022 school year. (Exh. I). Student made progress in both her educational and therapeutic goals. (Exh. S, page 12). Student progressed gradually and inconsistently towards her educational goals and related services goals. (Exh. S). According to Parent, Student made progress at [REDACTED] in every area of her development. (Exh. T, pages 5-7). She made progress in ger communications skills, made progress in her feeding skills, and in her gross motor skills and functioning. (Exh. T, pages 5-6).

Parent signed an enrollment contract on May 19, 2021. (Exh. O). The enrollment contract provided for release if the school district provided a placement prior to October 15, 2021 and requires full cooperation with the school district. (Exh. O, pages 2-3). Parent showed that she is unable to afford the cost of tuition, and that she paid $750 towards total tuition. (Exh. P and Exh. R).

Parent filed a Ten-Day Letter on June 17, 2021. (Exh. B). The [REDACTED] determined that settlement was not appropriate. (Exh. H). Parent filed a due process complaint on July 9, 2021. (Exh. A).

FAPE

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order "to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

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

The [REDACTED] submitted evidence but did not otherwise put on a case. Therefore, the [REDACTED] did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

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

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents' choice turns on whether the chosen school "is reasonably calculated to enable the child to receive educational benefits." Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is "one that is 'likely to produce progress, not regression.'" Id. (quoting Walczak, 142 F.3d at 130). The parents' choice must be "appropriate," "not . . . perfect." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement "need not meet state education standards or requirements." Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement . . . provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Gagliardo, 489 F.3d at 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

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 funding and/or 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). Parent showed her inability to pay tuition and seek reimbursement under the Carter Analysis. (Exh. P, Exh. R and Exh. T). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2021-2022 school year.

Parent also requests special education transportation. (Exh. A). The uncontroverted testimony was that Student needed special education transportation to access his education. Further, the IEP recommended special education transportation and the [REDACTED] did not object to this request. This request includes special education transportation with transportation from the closest safe curb location, 1:1 travel paraprofessional, air conditioning, a mini-bus, wheelchair assistance and limited time travel not to exceed sixty minutes. (Tr. 81). The [REDACTED] had no objection to this request. (Tr. 82-3). As there was no objection, I order the [REDACTED] to provide special education transportation as above.

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. The [REDACTED] shall fund/reimburse Parent for tuition and costs at the [REDACTED] for the twelve-month 2021-2022 school year within thirty days of receipt of invoice and/or proof of payment.

3. The [REDACTED] shall provide round trip special education transportation to the [REDACTED] for the 2021-2022 school year, including transportation from the closest safe curb location, 1:1 travel paraprofessional, in an air conditioned mini-bus, wheelchair assistance and limited time travel not to exceed sixty minutes.

Dated: September 22, 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 [REDACTED]

EXHIBIT DATE NAME PAGES

1 07-06-2021 WITHDRAWN - DUPLICATIVE

2 06-17-2021 WITHDRAWN - DUPLICATIVE

3 05-04-2021 IEP 33

4 05-04-2021 IEP Attendance Sheet 1

5 06-03-2021 WITHDRAWN - DUPLICATIVE

6 06-09-2021 Prior Notice Package for Placement 4

7 06-09-2021 School Location Letter 2 Parent

EXHIBIT DATE NAME OF DOCUMENT #PAGES PAGE DATE IN

NUMBER EVIDENCE

IN PDF

A 7/9/2021 Due Process Complaint 12 3-14 9/15/2023

B 6/17/2021 Ten Day Notice 3 15-17 9/15/2023

C 7/22/2021 Notice – No IHO Appointment 1 18 9/15/2023

D 12/21/2021 Notice – New IHO Appointment 1 19 9/15/2023

E 1/24/2022 [REDACTED] Educational 7 20-26 9/15/2023

Evaluation

F 11/29/2021 [REDACTED] Occupational 8 27-34 9/15/2023

Therapy Evaluation

G 12/6/2021 [REDACTED] Physical Therapy 8 35-42 9/15/2023

Evaluation H 12/13/2021 [REDACTED] Speech Language 8 43-50 9/15/2023

Pathology Evaluation I 6/27/2022 [REDACTED] Quarterly Progress 9 51-59 9/15/2023

Report J 6/3/2021 [REDACTED] Recommended IEP 20 60-79 9/15/2023

K Summer [REDACTED] Class Schedule – 1 80 9/15/2023

2021 Remote L 2021-2022 [REDACTED] Daily Class 2 81-82 9/15/2023

Schedule M Summer [REDACTED] Remote Learning 8 83-90 9/15/2023

2021 Program Description N 2021-2022 [REDACTED] Program 10 91-100 9/15/2023

Description O 5/20/2021 [REDACTED] Enrollment Contract 5 101-105 9/15/2023

P 7/28/2021 [REDACTED] Tuition Affidavit 1 106 9/15/2023

Q 5/20/2021 Tuition Deposit Proof of Payment 1 107 9/15/2023

R 2019 Tax Return - [REDACTED] 2 108-109 9/15/2023

S 9/19/2023 Affidavit of [REDACTED] 15 110-124

T 9/20/2023 Affidavit of [REDACTED] 6 125-130

Impartial Hearing Officer

None.