New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565804 - NYC: 221190

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED

Record Close Date: May 26, 2022

Hearing Officer: Randy Glasser, Esq.

On November 10, 2021, REDACTED, Esq., of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding his special education program and services for the 2021/2022 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”), Section 504 of the Rehabilitation Act of 1973, and Part 89 of the Education Law, against the DOE (IHO Ex. “I”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on November 12, 2021, after the appointment of the previous Hearing Officer for this case was rescinded. On February 10, 2022 Mr. REDACTED filed an Amended Due Process Complaint for which this IHO granted permission (Parent Ex. “A”). Prehearing conferences (“PHC”) were held on December 9, 2021, and March 25, 2022, and status conferences were held on January 10, 2022, February 9, 2022, March 25, 2022, and May 6, 2022. The Hearing for this matter went forward on May 19, 2022. The DOE was represented by District Representative, REDACTED, and the Parents and Student by Mr. REDACTED.

The District submitted into evidence Exhibits “1” through “4”, but only District Ex. “1” and “4” were accepted into evidence, because they were not disclosed at least five (5) business days before the Hearing (Tr. 69-71), while the Parents submitted into evidence Exhibits “A” through “K”, with the latter consisting in part of the Affidavit Testimony of REDACTED, a psychologist in the Middle School of REDACTED (the “School”), and the Parent, REDACTED (see Parent Ex. “J,” and “K,” respectively). The District did not put on a direct case. Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Order. The compliance date for this matter was extended to July 30, 2022 (IHO Ex. “II”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old, classified as a student with a Learning Disability, and diagnosed with a Developmental Coordination Disorder, a Disorder of Written Expression, a Math Disorder, and an Attention Deficit Hyperactivity Disorder – Inattentive type (DOE Ex. “4”; Parent Ex. “C”). “These diagnoses were thought to be complicated by his concomitant executive function challenges, slow processing speed, retrieval, and a complex pattern of receptive and expressive language challenges. Heightened anxiety was also found to be present” (Parent Ex. “C” at pp. 1-2).

The Student’s Individualized Education Program (“IEP”) dated March 16, 2021, for the 2021/2022 school year recommends the following ten (10) month special education program and services: Integrated Co-Teaching Services for English Language Arts (“ELA”) fifteen (15) times per week, one (1) period per session, and for Math, five (5) times per week, one (1) period per session, along with individual occupational therapy, one (1) time per week, thirty (30) minutes per session, occupational therapy in a group of three (3) students, one (1) time per week, thirty (30) minutes per session, and speech language therapy in a group of three (3) students, three (3) times per week, thirty (30) minutes per session, and touch screen tablet, word processing/digital folder application, scanning/annotation, math number alignment, and work predication/auditory feedback applications daily, for class writing, reading and math tasks (DOE Ex. “4” at pp. 14-15).

The Parents unilaterally placed the Student at the School for the 2021/2022 school year, for which they are now seeking tuition reimbursement, and roundtrip transportation (Parent Ex. “A”). The Parents’ requested relief is based upon their allegations that:

• • The IEP Team at the meeting held on March 16, 2021, was not duly constituted, as several required members were not present;
• • The IEP Team did not conduct, secure, or rely on sufficient evaluative measures in order to determine the Student’s present levels of performance, educational and cognitive profile, and areas of need;
• • The IEP Team significantly impeded the ability of the Parents to participate in the development of the IEP;
• • The IEP Team failed to meaningfully review goals or management needs with the Parents at this meeting;
• • The Parents did not receive a copy of the IEP at this meeting;
• • The Individualized Education Program (“IEP”) resulting from this meeting contains present levels of performance that are vague, management needs that do not address all the issues discussed at the meeting and are insufficient to adequately support the student in the recommended program, the IEP did not contain adequate program modifications and supports to address the management needs that were listed, the annual goals were vague, and failed to address every area of the Student’ deficits and specify a baseline of functioning, actual targets to be achieved, or detail by what means the goal would be conserved to be achieved;
• • The program recommended by the IEP Team was not appropriate in that it failed to provide a setting suitably structured and supportive to meet the Student’s needs; and
• • The CSE failed to respond to the Parents’ notice dated August 24, 2021 of the DOE’s failure to provide the Student with an appropriate program and their intention to enroll the Student in the School and seek funding if an appropriate program and placement was not offered to the Student at the start of the school year.

(Parent Ex. “A;” see also: Parents’ opening statement at Tr. 82-85).

The District’s position expressed at the Hearing in their opening statement, appears to be that the program recommended by the CSE at the meeting held on March 16, 2021, provided the Student with a free and appropriate public education (“FAPE”) (Tr. 81-82).

The Student’s eligibility and classification are not at issue in this case.

A. Introduction and Findings of Fact: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

• • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or local educational agency (“LEA”) has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The Parents presented two (2) witnesses on their direct case: REDACTED, PhD., and the Parent.

REDACTED testified in relevant part regarding his position as a psychologist at the School, including his duties, educational background, certifications, and training (Parent Ex. “J” at ¶¶1-5), a description of the School, what the Student’s Program at the School targets, number of students and staff at the School’s Middle School, (Id. at ¶¶6-9), teachers at the Middle School and their certifications, the teachers participate with staff in weekly faculty meetings, where the Middle School’s students are discussed, and monthly meetings with Faculty and the Middle School Director (Id. at ¶¶10-11), professional development of the teachers (Id. at ¶12), the School’s curriculum, and how they measure students’ progress (Id. at ¶¶13-14), how he is familiar with the Student (Id. at ¶15), why the Student was recommended for his program at the School (Id. at 16; Tr. 102-103), a description of the Student, including his areas of need and how they are addressed at the School (Id. at ¶¶17 – 21), the Advisory class attended by the Student, which is a time for the Student to troubleshoot any issues that arise within his school day, and the support he receives in the class (Id. at ¶22), how the School addresses the Student’s difficulties in reading and writing, and learning difficulties in math (Id. at ¶¶23-24), the Student’s Science class, along with the Student’s modifications in the class and how the Student appears in the class (Id. at ¶25), the Student’s Social Studies class, how the materials are presented in the class so that they can be accessed by the Student and how he appears in the class (Id. at ¶26), the Student’s Academic Enrichment class which supports the Student throughout his classes and provides increased opportunities for skill development in his areas of weakness, and that such support is resulting in the Student being more successful and confident in his abilities, how the class is targeting his writing and math skills, executive functioning weakness, and how he benefits from the class (Id. at ¶28), the Student’s speech language therapy, which addresses his language based difficulties, how it is tied to the curriculum and the fact that the Student “continues to make steady gains in reading and in written expression as a result of this support” (Id. at ¶28), why he believes the Student is appropriately placed in this program at the School (Id. at ¶29), and why the IEP Team’s recommended placement and program for the Student for the 2021/2022 school year would not address his needs and does not offer adequate support for the Student’s deficits in math, where he has a need for increased support and attention (Id. at ¶30).

• • The Parent testified in relevant part providing a description of the Student, and the special education supports he has received since preschool (Parent Ex. “K” at ¶¶1-3), the IEP Team meeting the Parents participated in on March 16, 2021, the recommendation by the IEP Team that the Student’s placement continue in an Integrated Co-Teaching (“ICT”) classroom, the Parents’ concerns with the recommended placement expressed at the meeting and Team’s response that there were no other placements that would be appropriate for the Student within the public school placement, and Parents’ feeling that they were unable to meaningfully participate in the consideration of an appropriate placement for the Student (Id. at ¶4), the Parents’ decision to secure an updated neuropsychological evaluation for the Student by Dr. REDACTED in Spring 2021, the areas of academic functioning and where he was regressing identified in the evaluation and why he was not regressing in other areas (Id. at ¶5, Parent Ex. “C”), the Parents emailed Dr. REDACTED evaluation to the District on or about June 1, 2021, requesting a reevaluation and IEP Team meeting for the Student, and the District’s response that such meeting would need to be over the summer, but never heard from the District about scheduling this meeting, or reevaluating the Student (Id. at ¶6; Parent Ex. “E”), the 10-Days’ Notice given by the Parents’ attorney at their direction, which the DOE failed to respond to, leaving the Parents no choice but to enroll the Student at the School in September 2021 (Id. at ¶7; Parent Ex. “B”; Tr. 110), how the Parents learned about the School, and then sent documentation to the School which was followed by the School interviewing the Student, and the Student’s admission to the School, starting in February 2021 (Id. at ¶8), the Parents’ review of the contract and understanding that they would lose the deposit plus the Student’s prorated tuition if they withdrew on or before September 30, 2021, and after September 2021, the Parents would be liable for the Student’s full tuition under the contract (Id. at ¶9; Parent Ex. F”; Tr. 109), despite the Parents’ request to transport the Student to the School, the District did not respond, resulting in the Parents contracting for bus service with the School (Id. at ¶11; Parent Ex. “G”), the progress the Student has made at the School during the 2021/2022 school year (Id. at ¶12), and the Parents have paid the Student’s full tuition in accordance with the aforementioned contract with the School (Id. at ¶13).

B. The CSE’s consideration of appropriate evaluation material: As stated above, the Parents argue in part that the IEP Team at the meeting held on March 16, 2021 “did not conduct, secure, or rely on sufficient evaluative measures to make a determination of the Student’s present levels of performance, educational and cognitive profile, and areas of need” (Parent Ex. “A”). In this regard, the Parent testified that the District did not reevaluate the Student, pursuant to her request on June 1, 2021, but did not provide any testimony or documentary evidence addressing their allegation regarding the insufficiency of the evaluations at the IEP Team meeting held on March 16, 2021, or as to what additional evaluations are needed in order to develop and appropriate IEP for the Student (Infra). However, as stated below, the District also failed to proffer any testimony or evidence proving that the evaluations relied upon by the IEP at this meeting were sufficient.

Moreover, the Regulations of the Commissioner require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303(a)(2); 8 NYCRR 200.4(b)(4)); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4(b)(4); see 34 CFR 300.303(b)(1)-(2)). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414(b)(2)(A); 34 CFR 300.304(b](1)(ii); see S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 (S.D.N.Y. 2011); see Letter to Clarke, 48 IDELR 77 (OSEP 2007)). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x)). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status (20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii)). The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability and sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education, whether or not commonly linked to the disability category in which the student has been classified. Id.

In the instant matter, other than the evaluations stated on the IEP dated March 16, 2021, e.g., the “TCRWP” administered in February 2021, and Engage NY Math Rubrics, there are no other evaluations listed, that this IEP was based upon (District Ex. “4”). Moreover, the District failed to proffer any testimony or evidence proving that three years had not elapsed since the Student was fully evaluated, when the Parent requested that the Student be reevaluated in June 2021. Accordingly, an argument can be made that upon the Parents’ request in June 2021, the District was obligated to reevaluate the Student, because the Parents and the District had not agreed in writing that such reevaluation was not necessary. Regardless, even if this IHO was to find that the IEP was not based upon sufficient evaluative data, such determination is not necessary since as more fully explained herein this IHO has found that the Student’s IEP was not calculated for him to make meaningful progress in light of his unique circumstances and therefore failed to provide the Student with a FAPE. Accordingly, regardless, of this IHO’s finding regarding this issue, the District cannot and does not prevail for Prong I.

C. Meaningful Participation: The Parents appear to argue they were denied meaningful participation at the meeting held on March 16, 2021, because when they presented their views, disagreeing with the recommended placement in an ICT class, they responded that there were no other settings in the public school that would be appropriate for the Student (infra).

However, the record is devoid of any evidence in this matter substantiating such allegation. In this regard, this IHO notes that the IEP resulting from this meeting states the following Parent concerns:

[The Student’s] mom discussed how the format of [the Student's] education during the pandemic seems to have been more supportive due to the smaller class setting, one on one tele-therapy sessions and from [the Student] not being pulled out of the classroom for related services. She mentioned that she has concerns going into middle school with reducing any mandates such as lessening Speech from 3x to 2x. His previous years teacher mentioned that in a class of 32 students last year he made significantly less progress, as more students around him led to more barriers to his learning. He has been making more progress this year more quickly. His parents would like him to get as much support as possible going into middle school to ensure he continues to make progress academically.

(DOE Ex. “4”).

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415(b)(1)). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5(d)). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. 2015); A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 (S.D.N.Y. 2015); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation") (emphasis added); Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. 2006) ("Meaningful participation does not require deferral to parent choice")). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192).

Based upon the above, the Parent’s mere disagreement with the District’s recommended program does not automatically amount to a denial of her meaningful participating. Also, due to the fact that the Parent’s concerns are stated on the IEP, it appears that the Parent was listened to. Accordingly, it appears that the Parent was afforded meaningful participation in the development of the Student’s IEPs dated March 16, 2021.

D. CSE Team: The Parents assert in relevant part that the IEP Team at the meetings held on March 16, 2021, was not appropriately constituted because several required members were not present. However, neither the DPC, nor any evidence or testimony proffered by the Parent explains why and/or supports this allegation (Parent Ex. “A”).

In this regard this IHO notes that the following individuals participated in this IEP Team meeting: Related Service Provider/Special Education Teacher – REDACTED, General Education Teacher – REDACTED, Parent/Legal Guardian – REDACTED, District Representative – REDACTED, Occupational Therapist – REDACTED, and Speech and Language Therapist - REDACTED (DOE Ex. “4”).

Pursuant to 8 NYCRR 200.3(a)(1), an IEP Team shall be comprised of the following members:

i) the parents or persons in parental relationship to the student; (ii) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (iii) not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student; (iv) a school psychologist;

(v) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist. The representative of the school district shall serve as the chairperson of the committee; (vi) an individual who can interpret the instructional implications of evaluation results. Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee; (vii) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years, if specifically requested in writing by the parent of the student, the student or by a member of the committee at least 72 hours prior to the meeting; (ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and

(x) if appropriate, the student.

Id. (Emphasis added.) First, there is no indication on the IEP that the Special Education and Regular Education Teachers that attended the IEP Team meeting were the Student’s teachers. Nonetheless, the neuropsychological evaluation states that REDACTED and REDACTED, were in fact the Student’s teacher (Parent Ex. “C” at pp.3, and 11). However, a school psychologist did not attend the meeting. Accordingly, since there was no indication that this was a subcommittee meeting^[1] of the IEP Team, and the school psychologist did not attend, the IEP Team was improperly constituted.

While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E. v. New York City Dep’t. of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012)), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); 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)).  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 (20 U.S.C. § 1415(f)(3)((E)(ii); 34 CFR 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).

Nonetheless, even though the lack of a psychologist as a CSE member at the March 2021 meeting constituted a procedural violation, the Parents have not alleged and there is no evidence in the hearing record that the absence of a psychologist as a member impeded the Student's right to a denial of FAPE, significantly impeded the Parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or that the lack of such member caused a deprivation of educational benefits (see E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *13-*14 (E.D.N.Y. 2013)). To the contrary, and as discussed below, the Parents had ample opportunity to participate in the CSE meeting (see: Infra).

E. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). 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 to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the only evidence submitted by the District in this regard, are the IEPs dated March 16, 2021 and November 16, 2021 (DOE Ex. “1” and “4”). However, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017). Moreover, both REDACTED and the Parent testified why the recommended ICT class is not appropriate for the Student, e.g., “[t]hat the ICT model was becoming increasingly untenable for [the Student]” (Parent Ex. “J” at ¶30, “K” at ¶4, and Infra).

Accordingly, the District failed to prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., that pursuant to the Student’s IEP it offered a program that was “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017). In light of this finding by the IHO, it is unnecessary for this IHO to consider the remaining claims regarding whether or not the DOE provided a FAPE to the Student for the 2021/2022 school year. Accordingly, it is this IHO’s finding, as discussed more fully infra that the District denied the Student a FAPE, for the 2021/2022 school year, and it is unnecessary to address the Parents’ remaining allegations in the DPC.

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

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.

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

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s placement at the School provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School (see: Parent Ex. “J” at ¶¶16-29, “K” at ¶12) and Infra; see also: the School’s Trimester 2 Progress Note contains the following statements regarding the Student’s progress in ELA at (Parent Ex. “I” at pp. 1-2), Social Studies at (Id. at p. 2), Math (Id. at p. 3), Speech and Language Therapy (Id. at p. 3), and Science (Id. at p.5), and a passing grade in Flex Time (Id. at p. 3).

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parents’ unilateral placement of the Student at the School for the 2021/2022 school year. In fact, the only issue that may have impacted upon these equitable factors is the fact that the Parents signed the contract with the School on February 11, 2021, which required a SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00) nonrefundable deposit which was made (Parent Ex. “F”). However, the Parent testified in relevant part that they signed the contract and submitted the deposit at that time in order to give them “the confidence to sign their enrollment contract and save a place for him” (Parent Ex. “K” at ¶9). In addition, even though the Parent provided a ten-day notice of her intention to place the Student at the School, the District did not reply (Parent Id. at ¶7, Infra).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, and the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2021/2022 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2021/2022 school year is SIXTY FOUR THOUSAND DOLLARS ($64,000.00) of which the Parents have paid the full amount (Parent Ex. “F” and “K” at ¶13).

F. Transportation: As aforementioned the Parents request the DOE be required to fund the Student’s transportation to the School and that the case be settled in part for the cost of such transportation (Parent Ex. “A”). In this regard, the Parents provided the Bus Service Registration which obligated the School to provide such transportation in return for the Parents’ payment of $6,000.00 which the Parent testified has been paid (Parent Ex. “G”; Tr. 111).

Generally, a student parentally placed in a nonpublic school is entitled to transportation to and from the nonpublic school only if the school is located within fifteen (15) miles of the student's home, unless such the Student is receiving a special education program and/or services similar to special education program recommended by the CSE (see Educ. Law §3635, 4402(4)(d)). As stated above, the burden of proof is on the 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 (Educ. Law § 4404(1)(c); see 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. 2010)). Since the Student is receiving a special education program and services at the School, this IHO is not persuaded that the District has established that such program is insufficiently similar to the program recommended by the District (Educ. Law § 4404(1)(c)). Based on the above, the program and services are sufficiently similar to the special education programs and services recommended by the CSE for the 2021-2022 school year to support the Parents' request for transportation.

Moreover, as explained by the SRO in App. No. 18-115 (2018):

... under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994] (finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses... as related services"]; see also Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 [1992] [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE]).

Id (emphasis added).

Accordingly, this IHO’s decision that the Parents are entitled to tuition reimbursement, encompasses reimbursement for the Student’s reasonable transportation to the School for the 2021/2022 school year, upon their presentment of documentation evidencing their payment of the aforementioned amount of $6,000 pursuant to the Bus Service Registration.

ORDER

IT IS HEREBY ORDERED that, within thirty (30) days of the Parent’s submission to the District of documentation evidencing their payment of the Student’s tuition for the School for the 2021/2022 school year, e.g., receipt, cancelled check(s), credit card statement, etc., the District shall reimburse the Parents in an amount not to exceed of SIXTY FOUR THOUSAND DOLLARS ($64,000.00);

AND IT IS FURTHER ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their payment for the Student’s transportation to the School for the 2021/2022, upon the Parents’ submission to the District documents evidencing their payment for same, e.g., receipt, cancelled check(s), credit card statement, etc., in an amount not to exceed of SIX THOUSAND DOLLARS ($6,000.00).

May 26, 2022 Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING HELD ON

MAY 19, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., Law Offices of REDACTED

REDACTED, Parent

REDACTED, PhD., Psychologist, Middle School, the School

DOCUMENTS ENTERED INTO THE RECORD

IHO EXHIBITS

I. Due Process Compliant Notice, 11/20/2021, 5 pages

II. Order of Extension, 5/19/2022, 1 page

• • DOE EXHIBITS

1. IEP, 11/16/2021, 25 pages

2. Neuropsychological, 4/21/2022, 22 pages*

3. Classroom Observation, 6/14/2021, 1 page*

4. IEP, 3/16/2021, 23 pages

• • PARENT EXHIBITS

A. Amended Request for Impartial Hearing, 2/10/2022, 4 pages

B. Notice of Unilateral Placement, 8/24/2021, 2 pages

C. Neuropsychological Evaluation, 4/21/2021, 21 pages

D. Parent Evaluation Request, 6/1/2021, 1 page

E. Note Scheduling Call with School Psychologist, 6/2021, 3 pages

F. School Enrollment Contract, 2/11/2021, 3 pages

G. Bus Service Registration, 7/21/2021, 1 page

H. School Schedule, 2021-2022, 1 page

I. School Trimester 2 Progress Note, 2021-2022, 6 pages

J. Affidavit, 5/17/2022, 14 pages

K. Affidavit, 5/19/2022, 5 pages

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.

Footnotes

[1] Pursuant to 8 NYCRR 200.3(c)(2)(5) a school psychologist is not a requisite member of a subcommittee CSE Team, unless “... a new psychological evaluation is reviewed or a change to a program option with a more intensive staff/student ratio, as set forth in section 200.6(h)(4) of this Part, is considered” Id.