New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 566150 - NYC: 221506

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 221506

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: November 15, 2021

Hearing Dates: September 9, 2022

Actual Record Close Date: September 29, 2022

Decision Date: October 13, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], Parent

[Redacted], Private School

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about November 15, 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 (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on April 1, 2022. A prehearing conference was held on May 13, 2022 to discuss the issues in the case. After several status conferences and a lack of an update on the investigation from the District, a hearing was scheduled for September 9, 2022 and was completed on that day (See, Transcripts).^[2] The District did not present a prong I case. The Parent presented exhibits^[3] and two witnesses. The record closed on September 29, 2022. There were approximately four 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 was an [Redacted] year old student who attended the Private School during the 2021/22 school year (P-Ex. A). The Student is classified as a student with a Learning Disability (P-Ex. A-1). The Student was diagnosed with a Mixed Receptive-Expressive Language Disorder and Specific Learning Disorders with impairments in reading, math and written expression (P-Ex. A-1; N-17). The Student was described as having language processing deficits, slow information processing skills, which impacted the Students ability to learn and process new information (P-Ex. A-1).

The Parent testified that the Student started in public school in REDCACTED as a junior kindergarten student (T. 87). The Parent first observed that the Student had difficulty with learning the following year, in Senior kindergarten, at the age of five years old (T. 87). The Parent observed that she was behind in certain learning milestones, which they discussed with her teachers (T. 87). They looked for additional resources outside of school, that included extra assistance in reading and math, at an afterschool learning center three times per week (T. 87-88). The Parent and Student moved to New York in August 2019 and in September 2019, the Student was enrolled in a private school for first grade (T. 88). The private school at that time provided small classes and support from a reading specialist, math specialist and learning specialist (T. 88-89). The private school informed the Parent that the Student could not keep up with the work and requirements of the classroom and the Student again was provided with afterschool help, three times per week for reading and math (T. 89).

During the summer of 2020, there were discussions regarding the Student’s ability to attend 2nd grade so the Student was enrolled in private tutoring (using the Orton Gillingham method) three times per week, and she was assessed by a neuropsychologist to get a better understand of her learning challenges (T. 91-92). In September 2020, the Student continued in the private school where it was discussed that the support she was receiving was not enough and she would not be able to transition to the 3rd grade (T. 92).

The neuropsychologist found that the Student had solid cognitive abilities and strong memory and learning abilities, but required supports and interventions to address her academic and executive functioning deficits (P-Ex. N). The neuropsychologist did not recommend a specific program, but did recommend supports of 1:1 instruction or small group instruction, and intensive support in speech language (T. 93-94). The Parent, through conversations with the neuropsychologist, the after school tutor and the Student’s school, researched schools, including the Private School (T. 94). The Parent signed the contract with the Private School in January 2021 (P-Ex. I; T. 95). The Parent explained that in their experience in New York, when something becomes available, you take it and they wanted to take action so they would not lose the opportunity if they needed it for the Student (T. 95-96). The contract also had a provision where the Parent could withdraw the application and would be reimbursed any deposits made (T. P-Ex. I-3; 96-97).

The Parent learned about the possibility of obtaining special education services for the Student through the District during conversations with the prior private school, the tutor and the neuropsychologist (T. 97). The District did not reach out the Parent prior to them reaching out to District’s Committee on Special Education (“CSE”) sometime in January/February 2021 (P-Ex. J; T. 97, 118). The Parent was concerned with the Student’s ability to stay focused, manage conflicts, regulate emotions and express herself verbally (P-Ex. K). The District’s CSE met to review the Student’s eligibility for special education on March 3, 2021 (P-Ex. V; T. 97). The Parent attended the IEP meeting along with the Student’s teacher from the private school and the reading specialist (P-Ex. V-17; T. 98). The Parent shared all documents and assessments they had from the Student’s school (T. 98-99). The CSE recommended that she be classified as a student with a Learning Disability, and recommended a 12:1 special class program, group counseling 1x30 minutes per week, 1:1 speech language therapy 1x30 minutes per week and 1x30 minutes per week in a group (P-Ex. V-11). The Parent testified that the recommendations in the IEP were less than the supports the Student had been getting at the private school (T. 100-101). The Parent shared his concerns with the IEP team, however the recommendations were not changed (T. 102).

The Parent received a school location letter which recommended a public school, however, when the Parent contacted the school, they informed her that they were not able to do a tour and they did not have a 12:1 classroom at the recommended public school (P-Ex. B; T.102-103). In June 2021, the Parent informed the CSE that the recommended public school could not implement the IEP, but the District never responded (P-Ex. B; Q; T. 103-104). On August 26, 2021, the Parent informed the District that the Student would be unilaterally placed at the Private School for the 2021/22 school year (P-Ex. B). The Parent testified that they paid the tuition in full and explained that the payment was administered by a company affiliated with his employer and that the funds came out of his income/salary (P-Ex. T; U; T. 105-108, 121-124).

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 failed to 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. The District failed to provide any evidence regarding how the recommendations in the IEP would support the Student’s needs; how it would implement the recommendations in the IEP; or confirm whether the recommended public school placement could accommodate the Student’s recommended 12:1 classroom program. Therefore, I find that the District did not provide the Student with FAPE 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 also, 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 Head Teacher from the Private School testified regarding the Private School and the Student (T. 35). The Private School was described as an ungraded, independent school (with an elementary and middle school) for students with learning differences (T. 37). The Private School uses a curriculum based on an explicit, sequential, direct, and multisensory approach (T. 37). The Private School breaks down barriers to learning, builds self-esteem, and realizes academic success (P-Ex. C). The Private School is organized by division: early childhood, lower, intermediate, and middle school, and each has colored coded clusters (T. 38). The Student was in the orange cluster which had approximately 40-45 students, and each class within the cluster had 10-11 students (T. 38). The Head Teacher was responsible for creating and implementing lessons, creating differentiated lessons for each student, and managing behaviors and social interactions of the students (T. 37). The Student was in her class of 10 students with similar deficits (T. 40, 43). There was an assistant teacher in the class and a Speech Language Pathologist and Occupational Therapist were assigned to work with the class as well (T. 40). The Speech Language Provider pushed-in to the classroom for all writing classes throughout the week, taught a language class and provided pull-out services for the students (T. 42). The OT pushed into the classroom for writing, taught a handwriting class and provided pull out services (T. 42).

The Head Teacher testified that the Student struggled with expressive and receptive processing, which was evident in her reading and writing (T. 42). The Student also struggled with organization, word retrieval and inattention (T. 42-43). The Student was provided with Orton-Gillingham instruction, which is used at the Private School, and she made progress (T. 43). Reading instruction was taught in small groups, divided on each students’ learning style, skills and needs (P-Ex. E-9; G-13; T. 44). The Student was provided with reading instruction by a reading specialist, trained in Orton Gillingham (T. 44). She was in a group with 6 students where Orton Gillingham was used (T. 44-45). At the beginning of the year, the Student started at a beginning 2nd grade level and by the end of the year, she was at a middle 3rd grade level (T. 45). Math was also taught in a small group of four, with other students with similar learning styles (P-Ex. E-14; G-17; T. 47). The Head Teacher was her math teacher for half the year and then the Student was reassessed and moved into another group of 6 students with a different math teacher (T. 48). The math curriculum was comprised of the Private School’s own curriculum, Stern Instructional math and Singapore math, which were shown to be effective for students with learning disabilities (T. 49). The curriculums were hands-on, visual, and were broken down (T. 49). At the begin of the school year, the Student was at a beginning to mid 2nd grade level, and by the end of the year, the Student was at a middle 3rd grade level (T. 49-50). The Student made progress in math, developed a solid foundation in multiplication and division concepts, and could use strategies to recall facts and solve one-step problems (T. 50). Writing was taught in collaboration between the Head Teacher and the speech language pathologist, three times per week in the classroom (P-Ex. E-13; G-16; T. 51). The whole class was provided instruction and then broken down into smaller groups (T. 51). The Private School used it’s own curriculum as well as the Writing Revolution curriculum (T. 51). At the beginning of the school year, the Student was able to get ideas down on paper, but was disorganized and repetitive (T. 52). By the end of the year the Student was able to write more detailed sentences and made improvements in organization of her paragraph writing (T. 52).

To address her expressive-receptive language deficits, language processing and organization, the Student was provided with small group instruction, extra time, different scaffolding methods, and organization outlines (T. 53-54). To address her attention issues, she was placed in small groups for direct teacher access and refocusing prompts (T. 54). The classroom also used a classroom behavior plan that provided reinforcement of positive behavior (T. 54-55). The Student received related services of pull out speech once per week, in a group of 2 to 3 students, and push in OT for writing and keyboarding approximately once or twice a day (P-Ex. F; H; T. 56, 57). The Student was also provided with a social emotional learning class, once per week, taught in collaboration with the school psychologist where they worked on friendship building (T. 57, 58, 61). At the beginning of the year, the Student was shy and unsure of her skills, but by the end of the year she was more confident in her skills (T. 58, 61).

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]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically and socially and emotionally. Progress was measured through formal and informal assessments and progress reports were issued twice per year (P-Ex. E; T. 58). The Student made improvements in her reading fluency, writing organization, multiplication and division, and with her confidence in academics and social skills (T. 59-60). The Parent also observed progress in her reading and understanding of math concepts (T. 109). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 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. In contrast, the District ignored the Parent’s concerns and failed to provide the Student with behavioral supports in order to transition the Student from the Private School to the public school.

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 and that the Parent is entitled to reimbursement. 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 2021/22 school year.

SO ORDERED

DATED: October 13, 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.

EXHIBITS

District Exhibits

NONE

Parent Exhibits

Ex. Description Date Pages

A Impartial hearing request 11/15/21 5

B Ten-day notice 8/26/21 3

C Program description 2021/22 1

D Class schedule 2021/22 1

E Mid-year progress 2021/22 24

F Mid-year speech progress report 2021/22 2

G End-year progress 2021/22 28

H End-year speech 2021/22 2

I Enrollment contract 1/16/21 7

J Notice of social history 2/4/21 1

K Social history report 2/23/21 4

L Teacher's progress report Undated 3

M 504 plan 11/2020 2

N Neuropsychological evaluation 8/2020 21

O Speech-language evaluation 11/20/20 10

P Letter from student’s school 2/2021 1

Q Parent's rejection email 6/4/21 2

R Letter regarding tuition payment 1/28/21 1

S Tuition affidavit 9/22/21 1

T Proof of payment 1/2021 1

U Letter regarding tuition payment 9/1/22 1

V IEP 3/3/21 17

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.