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NYSED # 567709 / NYC # 222802
FINDINGS OF FACT AND DECISION
Case Number: [Redacted]
Student’s Name: [Redacted]
School District: N.Y.C. Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [Redacted]
Hearing Requested by: Parent
Dates of Hearing: 06/08/2022, 06/28/2022 and 07/20/2022
Record Close Date: 08/05/2022
Date of Decision: 08/12/2022
Names and Titles of Persons Who Appeared June 8, 2022
For the Student
REDACTED, Esq.
For the New York City Department of Education
REDACTED, PhD
REDACTED, DOE Special Education Teacher
Names and Titles of Persons Who Appeared June 28, 2022
For the Student
REDACTED, Esq.
For the New York City Department of Education
REDACTED, PhD
REDACTED, Assistant Principal, City Knoll Middle School
Names and Titles of Persons Who Appeared July 20, 2022
For the Student
REDACTED, Esq.
REDACTED Assistant Head of Upper School,REDACTED School
REDACTED, PsyD, Pediatric Neuro Psychologist
REDACTED, Parent For the New York City Department of Education
REDACTED, PhD
BACKGROUND
On December 15, 2021, the parents, by and through their attorneys, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 2220802, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”),[1] and the New York State Education Law.[2]
The DPC asserts that the Student was both substantively and procedurally denied a free and appropriate public education (FAPE) for the 2021-2022 school year after the Committee on Special Education (CSE) held an individualized education program (IEP) meeting for the Student on January 29, 2021.[3] It further alleges that “[t]he IEP team was not duly constituted,” that it “did not conduct, secure, or rely on sufficient evaluative measures to make a determination of the [S]tudent’s present levels of performance,” that it failed to “adequately consider... the findings and recommendations of the... [p]arents,” and that the program it recommended in the IEP “was not consistent with or supported by the weight of the information provided and available to the team.”[4] The parents “received a placement recommendation” from the Department, “contacted the school” and “determined that the recommended placement would not be able to sufficiently implement [the] IEP” and they “therefore ha[d] no choice but to reject the program and placement proposed by the CSE” and enroll the Student at the Private School; they now seek payment of tuition for the 2021-2022 school year, as well as transportation costs.[5]
PROCEDURAL HISTORY
I was appointed the impartial hearing officer (IHO) over this matter on April 20, 2022. On May 6, 2022, a pre-hearing conference was held, and on May 12, 2022, I issued a Pre-Hearing Conference Summary and Order, and an Order of Extension.[6] I issued subsequent Orders of Extension on June 3, 2022, June 8, 2022, and July 28, 2022.[7] I also issued scheduling orders on June 3, 2022, and on June 8, 2022,[8] as well as two more orders scheduling the parties’ closing statements, on July 20, 2022, and on July 28, 2022.[9] The merits hearing was held before me on June 8, 2022, on June 28, 2022, and on July 20, 2022,[10] wherein all of the exhibits were admitted into evidence without objection.[11] At the June 8, 2022 hearing, the Department produced as its witness the DOE Special Education Teacher. At the June 28, 2022 hearing, the Department produced as its witness the Assistant Principal of the DOE Placement School. At the July 20, 2022 hearing, the Parent produced as witnesses the Assistant Head of the Upper School at the Private School, the Pediatric Neuropsychologist,[12] and the Parent.
FINDINGS OF FACT
The following was not in dispute. The Student is fourteen years old and, for the 2021-2022 SY, was parentally placed at the Private School.[13] The Student is classified by the CSE as a student with a Learning Disability.[14] He has been diagnosed with attention deficit, hyperactivity disorder (ADHD), Language Disorder, Specific Learning Disorder with impairments in reading and written expression, and anxiety.[15]
The parents attended the CSE meeting that developed the IEP on January 29, 2021.[16] The IEP describes the assessments reviewed by the CSE, primarily a neuropsychological report from December 28, 2020,[17] that described the Student’s deficits in verbal reasoning, nonverbal fluid reasoning, visual spatial processing, working memory, processing speed, problem solving, attention skills, executive functioning skills, reading speed, organizing and articulating thoughts, writing skills, math skills, word retrieval, anxiety, focus, self-advocacy, as well as the issue that he will “shut down.”[18] The IEP notes that the parents were concerned that the Student showed “more frustration in writing,” and that he “continue[d] to be self[-]conscious with his writing” and that he was already “in a small supportive setting for his academic needs.”[19] In the “Management Needs” portion of the IEP, it states the following. The Student “should be away from noise and distracting external stimuli such as other students” and “he should also be provided with a quiet area within the classroom to complete work or take tests.”[20] He would also “benefit from frequent prompts to help him maintain focus and motivation[,]” and “frequent breaks” to “prevent fatigue and frustration” and to “reduce mental fatigue and provide him with opportunities to self-regulate,” and he “would benefit from having a teacher check in on him regularly[.][21] The IEP recommended ten periods per week each in a general education classroom with integrated co-teaching (ICT) services in English language arts (ELA) and in math, three periods per week of social studies in an ICT classroom, and two periods per week of sciences in an ICT classroom, along with special education teacher support services (SETSS), and the related services of occupational therapy (OT) and speech-language therapy (SLT).[22] The CSE considered but rejected the option of “related services only” as “not enough support at this time[,]” and it also rejected a “Special Class in a community school [with a] 12:1” student/teacher ratio because it was “seen as too restrictive at this time.”[23] The Department’s Case
DOE Special Education Teacher The Department produced as its first witness the DOE Special Education Teacher who attended the January 29, 2021 IEP meeting.[24] She testified as follows. When the IEP team reviewed the Student’s then-levels of performance, they found him to have “an average score for his cognitive performance” with “some areas of strength and some areas of weakness.”[25] He was performing well in reading comprehension, but he “need[ed] support in [] decoding, and he need[ed] support across all of his math skills, calculation and word problem solving.”[26] They noted that although he was in the seventh grade, “he was then reading at a fifth-grade level... so [we] chose [a] delay in his reading skills.”[27]
When asked “how did the team come up with the program recommendation of ICT and SETSS,” the witnessed stated that the Student “presented with delay in his... academic skillset, so we knew that he needed a big area of support.”[28] She believed that “the neuropsych[ological] that’s on the IEP is from several years ago” and “not a measure of where [the Student] was at the time of the meeting. So, [the team] relied upon what the [Private S]chool shared” as well as “the information we had... on file” in order “to determine [how] he’s learning... and that he needs added support[.]”[29] Later in her testimony, however, when it was pointed out that the neuropsychological evaluation had been completed less than a month before the IEP meeting, she acknowledged that she had been “thinking of [a] 2018” report and that it “was a mistake” to have been thinking about the 2018 report.[30] Nonetheless, the team “thought that ICT w[ould] be a suitable program recommendation because he would be with typically developing peers, he would be in a group of students where he’s getting added support” with “on-grade level teaching, because ICT is a form of gen[eral] ed[ucation]” where the “content is being adapted by the special education teacher in the classroom” and they “thought that would be an optimal setting for” the Student.[31] They also added SETSS “to help him with his executive functioning skills, which at the time had to do with some attentional issues and some time management issue[s], organizational issues.”[32]
On cross-examination, the Teacher testified that ICT “is special education” and “[i]t’s considered general ed[ucation]” but then clarified that “[t]he presence of a full-time special education teacher makes it one of the least restrictive settings within special education[,]”[33] which, “for students with needs similar to [the Student’s], it is one of the most appropriate settings because it lets the student with an academic profile[] like his” be able to “receive on-grade level instruction... [with a] special education teacher [to] adapt and modif[y] the delivery, the materials... to help the students access it as well as show what degree of mastery they’re able to.”[34] She also believed that the Department did not conduct an observation of the Student as part of its evaluation, because such an observation would have been included in the Department’s prior written notice (PWN), and it “[v]ery likely” would have been included in the IEP.[35]
Assistant Principal, DOE Placement School The Department’s second and final witness was the Assistant Principal (AP) at the DOE Placement School, who testified as follows. The Placement School offers an ICT program in a school with approximately 129 students in the sixth through eighth grades,[36] about 50 of whom were in the eighth grade.[37] There was a seat available for the Student for the 2021-2022 school year in its ICT classes, and that would have included ELA, math, social studies, and science, as well as SETSS in ELA and math, occupational therapy, and speech-language therapy.[38] The Placement School has a “special education liaison” whose role it is to oversee the special education program at the school and to facilitate meetings among the special education providers to “ensure[] that all the students are receiving their mandated IEP services.”[39]
On cross-examination and further questioning, the AP testified as follows. She was not certified in special education.[40] The Placement School is located in a larger building that houses another public school with pre-Kindergarten through fifth grade students.[41] The Placement School shared certain spaces with the other public school, including the auditorium, the gym, the cafeteria, and the schoolyard,[42] but each school used the shared spaces at separate times.[43]
The AP had reviewed the Student’s IEP and admitted that the Placement School would not have been able to implement ICT the way it was described in the IEP.[44] According to the AP, however, the roster of classes at the Placement School still provided a “full ICT program according to the Department of Education” because it had six periods of ELA, five periods of math, five periods of social studies, and five periods of science, rather than what was called for in the IEP (ten periods of ELA, ten of math, three of social studies, and two of science).[45] The AP noted that the 11 total classes of “social studies and ELA are integrated” because “[t]he skills and strategies... in social studies are similar to those in ELA because... there is a tremendous amount of reading and writing in both, while the ten periods of math and science were [also] integrated, meaning “math skills in the science program.”[46] The ICT student-teacher ratio was 26:2 (one general education and one special education teacher),[47] and for all other classes, including a class called “AIS” (described below), the Student would have been with 26 students and a single general education teacher.[48] Finally, the Placement School would have been able to provide occupational therapy and speech-language therapy as described in the IEP.[49]
The Placement School had an “advisory” program, which includes “community building” and “working on social and emotional development in the class[,]” and it has its own “curriculum that we follow.”[50] For example, “students sit in a circle, and they might do a reading of a passage related to some sort of social emotional skill and have conversations around it.”[51] The school also offers “Academic Intervention Services” (AIS), whereby teachers “provide support for the students using different online programs in math and ELA.”[52] AIS was available to all students, regardless of whether they were in a special education program.[53]
Department Exhibits In addition to the DPC and the IEP, the Department produced the parents’ ten-day notice (TDN), the Department’s PWN, the school location letter (SLL) that recommended the DOE Placement School, a Social History Update (SHU), the Pediatric Neuropsychologist’s report, and two documents from the Private School.[54] The PWN and SLL were sent to the Student’s parents and are both dated July 21, 2021.[55] The SLL stated, in part, “You may visit the recommended placement site. Please contact the above person for assistance in arranging this visit.”[56] The SHU listed the “Date of Assessment” as February 11, 2018, and the Student as being in fourth grade at the time, and the assessment was for fifth grade.[57] It described the therapies and services the Student received at the time, and his then-level of progress. It also noted that there were “no academic concerns” but that “his teachers informed his parents that he is becoming anxious when he is given new and challenging tasks” and “[h]is teachers suggested that [the Student] see[] a psychologist to discuss [these] concerns[.]”[58] Related services had been terminated a few years before the assessment, and one of the parents “state[d] that special education services were more productive and helpful to” the Student.[59]
The Parent’s Case
Assistant Head, Upper School at the Private School
As their first witness, the parents produced the Assistant Head of the Upper School (AH) at the Student’s Private School, who testified as follows. She is dual certificate in general education and special education.[60] As the AH, she works “closely with both students and teachers, whether... from an educational perspective of making sure we’re practicing best... to working with teachers... to also working with students if there w[ere] issues that might arise with... peers[.]”[61] She also teaches math and at the school’s “learning center,” which she described as “the hub of the school” where “kids can go in and out for support” and they “provide in-structure small group settings... where they will get more direct remediation or challenge, depending on what the issue might be[.]”[62] All of the teachers hold master’s degrees, and all of the special education teachers hold special education master’s degrees.[63]
The Private School is an “inclusion-based school” whereby its “mission is really to bring everybody together and that means... their full selves to the table when they come to the school, [including] faculty, students, [and] families[.]”[64] The school “do[es not] only consider inclusion from a learning profile, [it] also consider[s] it from a worldly profile[,]” with families from all backgrounds and “a wide variety of students with different learning profiles within [the] school.”[65] Students at the Private School with IEPs interact with students who do not.[66] For the 2021-2022 school year, the Student was in eight grade in the Private School’s “REDACTED Program.”[67] The AH participated in the January 29, 2021 IEP meeting.[68] At the time of the 2020-2021 school year, the Student was in seventh grade at the Private School, and it was a “hybrid model” during the COVID-19 pandemic, when students were remote, but he was never grouped with other students and teachers and assistants with a ratio of more than 14:2:1 or 14:2:2, with a ratio of 10:1:1 or 10:1:2 or less (students) in English and math.[69]
For the 2021-2022 school year, the Student “came back into the school... so there was definitely an aspect of coming back out of COVID and bringing our whole eighth grade class together[.]”[70] His math class was taught in a 8:1:2 setting, and 7:1:1 for ELA,[71] while history and science were taught in a 13:2:1 setting.[72]
Over the course of the school year, the AH watched him progress with “his advocacy... seeking support when he need[ed] it[,]” and “[a]t the start of the year, he was a little more apprehensive about showing his work on the board, but by the end of the year, in math class, he was... the first to [say], ‘I nailed that question. Can I show you how I did it?’”[73] In the ELA class, the Student “needed a little more support” at the beginning of the year,” but “we saw a lot of progress with [him] by the end of the year. He was able to come up with his main idea and... know [that] this pass is... supporting what [he was] trying to say” and he “was able to locate it with more ease, as well as... make more complex connections. His inferential comprehension [also] improved, and we saw improvement also with his participation in English this [school] year.”[74] The AH also found that “when he is listening to human voice, his comprehension is stronger... [like] that of an eighth-grade student.”[75] After assessing the Student at the end of the year, the Private School determined that he went from a sixth-grade level in reading to a seventh-grade level.[76] As for math, it “[wa]s a little bit harder for [him] than the... English was. He came in working around probably like an early fifth-grade level and was working around a sixth-grade level at the end of the year.”[77] The school found that “[h]e really... needed visuals and some structured strategies... the teacher would read the word problem to him out loud so that he was able to pull out the correct and accurate information and solve it with more ease.”[78] To address all of his deficits in learning and from ADHD, the Student was provided a number of supports, including being provided a seat near the front of the class so that the teacher could continually refocus him; “weaving his name into instruction [to] support his attention”; opportunities to take breaks or walk around the classroom to refocus; being provided direct instruction from the teacher when using his graphic organizer, including the offer of “sentence starters” when he is “blocked”; the use of a graphic organizer to express his ideas; and assistance from speech pathologists, who “worked really closely with the English teacher to... support him in the ability to articulate his ideas, both orally and with[] writing.”[79] The AH explained that the Student “needs a smaller class” because “he is a more quiet student” and “a small class size really ensures that a teacher might notice when [he] is just sitting for a moment” and “get the redirection if he needs it” and “prompting to get back on task if he might... disengage.”[80] This “allows him to feel confident and take ownership of his learning.”[81] Smaller classes also provide more opportunities for him “to be a leader” and “the one working with... other students being like, ‘hey, this is what were gonna do on this project[,]’ and really take charge.”[82] She added that “a small class size for [the Student] really just ensures that he is able to make the appropriate progress that he needs in order to be a successful adult.”[83] The AH “would be very concerned of [the Student] falling through the... cracks in a class of 30 [students], [and] of not getting the attention that he needs, not necessarily getting the support that he needs... [if he were] in a really big school” because “it’s really been beneficial to [the Student] that he knows everybody in the school... that he’s in” and has “develop[ed] good relationships[.]”[84]
On cross-examination and further questioning, the AH testified as follows. All of the students in the Student’s math and ELA classes had IEPs, with different type of disabilities.[85] In history and math, approximately half of the students had IEPs.[86] The REDACTED Program where the Student had been placed is for students who “need the support of a special educator” and “related services up to 180 minutes[.]”[87] The AH has taught in a co-teaching environment and recognized that students can “made progress both academically and socially” and “learned how to relate with a variety of different personalities.”[88] The co-teaching environment at the Private School, however, is only 15 to 16 students at most, while her recollection of the one or two DOE ICT classrooms she visited in the past was that each “was a very large classroom” with “a lot of students doing... work” and “a lot of students that were distracted... and sometimes there might be support... But 30 to 32 students with 2 adults.”[89]
Pediatric Neuropsychologist The Parent’s next witness was the Pediatric Neuropsychologist who evaluated the Student. The Neuropsychologist testified via affidavit, as follows. He has been the Student’s neuropsychologist for many years.[90] The Student has ADHD, Language Disorder, Specific Learning Disorder with impairment in reading and written expression, and anxiety.[91]
In November and December of 2020, he reevaluated the Student, and assessed how the Student was functioning at the Private School.[92] After performing standardized tests, reviewing relevant documents, and interviewing the Student and is parents, he found that the Student “displayed variable abilities[,]” such as those “within normal limits overall in the domains of verbal reasoning, nonverbal fluid reasoning, and visual spatial processing,” but “within these domains his performances fluctuated.”[93] Cognitively, the Student “displays at least average intelligence, but [he] also... struggles with speed, memory, attention, and executive functioning.”[94] The Neuropsychologist found that the Student’s “[c]omprehension skills were stronger provided [he] had time to work at his own speed,” and “[a]lthough [he] was able to write simple sentences effectively... he had significant difficulty generating a longer writing sample[.]”[95] Overall, the Student’s “[w]riting skills were generally below average.”[96] Moreover, “he was... anxious about providing responses that were incorrect, had trouble focusing and sustaining his attention[,]” which “[we]re consistent with a diagnosis of... ADHD[.]”[97] The Neuropsychologist found that these “difficulties... likely contribute to his weakness with speed and memory, since these tasks require focus at the time of information and task completion.”[98] Moreover, the Student’s “ongoing difficulties with language,... requir[ing] support to... comprehend what was said to him... are consistent with his prior diagnosis of Language Disorder.”[99] Finally, the Neuropsychologist noted that his “ongoing weaknesses related to decoding and reading fluency... [were] consistent with his prior diagnosis of Specific Learning Disorder and Impairment in Reading” and that his “weaknesses related to writing [we]re consistent with a diagnosis of Specific Learning Disorder with Impairment in Written Expression.”[100]
It was the Neuropsychologist’s opinion that, notwithstanding that the Student has “average cognitive abilities” and “is able to make academic progress[,]”[101] his deficits were “significant” and so in order to progress, he “requires a small, structured, and supportive class and school environment with opportunities for direct individualized[,] specialized instruction... throughout the day... using a multi-sensory approach to learning with frequent opportunities for one-to-one instruction.”[102] It was the Neuropsychologist’s further opinion that the Student “cannot be placed in a large class with a large school environment” because it “would trigger an increase in anxiety and impact an already fragile self-esteem.”[103] Thus, “an ICT classroom was inappropriate for [the Student]” and “[g]roup SETSS services was also inappropriate because [the Student’s] anxiety interferes with his ability to work well in a group of up to eight children.”[104] The Neuropsychologist was also familiar with the Private School, has “conducted many classroom observations at th[at] school[,]” and “continue[s] to find [the Private School] an appropriate educational setting for” the Student, as its “program and supports... are consistent with [his] recommendations in [his] evaluation.”[105]
On cross-examination and additional questioning, the Neuropsychologist testified as follows. His last evaluation of the Student was on December 28, 2020, but he since had been in contact with the parents to discuss the Student’s “overall progress... regarding school” and “updates[.]”[106] His diagnosis of the Student’s specific learning disability in reading and written expression was based upon his observations that “when words are out of context, when you give him a list of words, he struggled with... sight reading [and] phonetic decoding... his reading was not as fluent as it should be, and that is... one of the definitions of a reading disorder.[107] The Student scored in the first percentile – the lowest bracket – for the “ability to get his thoughts across in an organized way.”[108] His disability in language disorder is based upon how the Student struggles with the organization of speech and language.[109] He also has significant deficits in attention and executive functioning, wherein his ability to learn and his sense of self and self-efficacy are all impacted.[110]
The Student’s cognitive scores “range[d] from the point-fifth percentile and only as high as the ninth percentile... so clearly... his processing of information was quite low.”[111] He had recently met with the Student’s family, on July 13, 2022 and they reported that the Student is benefitting from his current supports and small program.[112] With respect to ICT and SETSS, he had observed students in such a program many times, and has even “advocate[d] for and [has had] to convince a CSE team to” provide it.[113] This was not the case for the Student, who needed the more restrictive supports described in his report.[114] He would not change any of his recommendations for the Student.[115]
Parent
Finally, one of the Student’s parents testified, as follows. The Student is “a very kind boy” who is “very curious.”[116] He has specific learning needs, including difficulty articulating himself. He began to see that he was “different” around 10 and 11 years old, and he began to participate less, and lost self-confidence.[117] The Student was receiving SETSS at a different private school for a few years, but it was then no longer delivered and the school recommended that the Student be placed in a different placement, one that could offer more individualized and small group support.[118] They decided to “get some expert input” and took the Student to the Pediatric Neuropsychologist.[119]
The parents request an IEP and attended the IEP meeting in January of 2021.[120] They provided the DOE with the Neuropsychologist’s report before that meeting.[121] After the meeting, they were given two placement recommendations.[122] The first was in May of 2021 and they tried to meet with someone from that school, which offered a video tour at first but eventually gave them an in-person tour.[123] They were concerned that it was “the full class size of a typical public school.”[124] The second recommendation was the DOE Placement School.[125] They made multiple phone calls and left messages with no response.[126] They contacted the CSE to let them know they could not get in contact with the Placement School and the person they spoke with “just said ‘keep trying.’”[127] By August, they “said to them, ‘we still haven’t gotten through’ and then... September was coming... [and] school [was] beginning” again.[128]
Now that the Student is at the Private School, “he[‘s] done very well.”[129] The Parent explained: “he likes school, which is good to hear... He didn’t like school before... [he] did very well... we were happy that he was making progress.”[130] The Parent noted that “even his reports were... showing that he was doing okay... in terms of grades.”[131] He also looked over the Private School’s Affidavit of Payment, noted that the tuition was $83,600.00 for the 2021-2022 school year at the Private School, and confirmed that the parents paid the entirety of that amount.[132]
On cross-examination and further questioning, the Parent testified as follows. After they could not get in touch with the DOE Placement School, they walked by it and they looked at its website.[133] He could not remember when he signed the contract with the Private School, but he recalled that “we paid in June, because we had gotten to that stage where we felt we had to secure the position.[134] He also recalled that this was between the Department’s first and second recommendations of schools.[135] The parents were not informed of any further IEP meeting between January of 2021 and September of 2021.[136]
Parents’ Exhibits The parents also submitted documentation in support of their position, including the DPC, the TDN, the Pediatric Neuropsychological evaluation, the parents’ contract with the Private School, the Student’s schedule and attendance records, six of the Student’s progress reports, three therapy reports from the Private School, an affidavit of payment for the Private School’s tuition, and the affidavit of the Pediatric Neuropsychologist.[137]
The parents’ attorney noted that three of the exhibits – the Private School’s “Fall Qtr 1 Progress Report,” the “Fall Semester Progress Report,” and the “Therapy Interim Report,”[138] were “reports that the DOE had when it developed the IEP.”[139] The remaining reports from the Private School were all offered to demonstrate the Student’s progress during the 2021-2022 school year.[140] The three reports sent to the Department before the CSE met in January of 2021 noted how the Student did well in his classes at the Private School, that he was engaged, shared answers, and benefitted from supports such as scaffolding, the use of graphic organizers, and “teacher checks for understanding.”[141]
Other reports describe how the Student performed at the Private School during the 202-2022 school year. They noted that the student is “enthusiastic” and “engaged” and that he “demonstrated self-direction” and while he still “requires support to stay organized and on task[,]” he “has shown growth” in multiple areas, including “look[ing] back into... text to find information when completing comprehension questions” and in writing a “piece[s that] showed a deep understanding of the text[.]”[142] Some of the teachers report that in order to maintain his level of progress, he needs to be “prompted” and be given “teacher check-ins” and “reminders” and “teacher modeling” with “a focus on time management” and “teacher guidance.”[143] The Pediatric Neuropsychologists’ evaluation that was completed on December 28, 2020, included the following. The Student’s overall cognitive ability was rated in the “low average” range based upon scores that “varied across domains.”[144] His verbal comprehension and reasoning were “within the normal range overall,” but scoring in the 37th percentile for hierarchical reasoning and in the 25th percentile for vocabulary.[145] His working memory was rated “below average for his age overall[,]” scoring in the 50th percentile for verbal tasks and in the 9th percentile for visual tasks.[146] Likewise, his processing speed, planning ability, higher order attention, writing and specifically “generating sentences in response to specific prompts” and math skills were all “below average.”[147] The report finds that the Student has shown “solid cognitive potential coupled with significant academic weaknesses.”[148] He “displays at least average intelligence, but also... struggles with speed, memory, attention, and executive functioning.”[149] The report echoes the Neuropsychologist’s testimony where it states that the Student required “a small, structured, and supportive class and school environment with opportunities for direct individualized specialized instruction[.]”[150] It recommended against “a large class within a large school environment.”[151] The program the Student would attend “should... provide[] breaks... to promote self-regulation” and “prompting and redirection” and “teacher check-ins” and “extra time to complete assignments, developing better organizational skills[,]” and “1:1 support to help develop his reading comprehension, written expression, and ability to solve math and word problems.”[152]
Closing Arguments
I granted the parties leave to submit closing arguments and any legal arguments in briefs to be filed by August 5, 2022.[153] I have reviewed the briefs and summarize the closing statements here.[154]
DOE’s Closing In its closing, the DOE contends the following. The IEP developed for the Student provided a FAPE. The CSE reviewed reports and assessments to complement the meaningful discussions that occurred at the CSE meeting, including the neuropsychological report, the Private School’s Quarter 1 Progress Report 2020-2021, a social history update, and the psychoeducational tri-annual report. The CSE discussions coupled with the clinical assessments and teacher reports were summarized and incorporated into the IEP. The CSE was focused on the student’s strengths and weaknesses, and how deficit skill areas would be addressed and incorporated into the IEP. The DOE Special Education Teacher testified that the IEP goals were designed to be “next steps” to address where the child progresses academically with the necessary therapeutic supports. Moreover, the parent’s input and concerns were unambiguously incorporated into the various sections of the IEP.
The program of ICT with SETSS and related services was specially designed to meet the Student’s needs, to address his deficits and foster his cognitive, academic, and social strengths. Cognitively, he performed in the average range within the domains of verbal reasoning, nonverbal reasoning and visual spatial processing; however, working memory and processing speed were both below average. His spelling skills are intact, and he was able to write simple sentences effectively. The IEP’s Present Levels of Performance incorporated the results of the clinical evaluations, as well as the teacher and related service reports reviewed by the IEP team and discussions by the participants.
Likewise, the “Annual Goals” and “Management Needs” in the IEP were designed to specifically target the Student's deficit areas, including ELA goals such as critical thinking, decoding and vocabulary expansion; reading comprehension goals such as paraphrasing, synthesis and evaluation; math goals such as problem solving strategies relevant to quantitative analysis and higher-level calculations; writing goals such as essay writing, grammar, proofreading, and revision; and executive functioning goals clustered around metacognitive strategies for improving reading comprehension, organization, and time management.
The CSE team believed that ICT and SETSS would better enable the Student to internalize information taught in the classroom, and that it was the appropriate program for the Student’s 2021-2022 school year. The classroom setting would allow for two teachers (one general and one special education) to provide frequent prompts, check-ins, and assist him access material throughout the academic day with typically developing peers. The ICT class would provide on-grade level curriculum with the necessary adaptation from the special education teacher. The proposed program could have implemented the goals, management needs, and related services recommended in the IEP, which aligned with the Student’s needs. Finally, the AP of the DOE Placement School explained how that program would have been able to provide 21 periods of ICT rather than the 25 recommended in the IEP. This is not a “material deviation” from the IEP and therefore does not affect FAPE. It is therefore the Department’s position that it provided a FAPE to the Student for the 2021-2022 school year.
With respect to Prong 2, the program at the Private School is overly restrictive, as the Student would be placed in self-contained core academic classes of only eight students. The Student’s disability can be addressed with the supports of the ICT with two teachers and SETSS and related services. The Student has demonstrated he possesses the cognitive, academic, and social skills to thrive in a general education public school setting alongside his peers and classmates. As for Prong 3, the parents had an opportunity to visit the DOE Placement School but instead just “walked by it.” They also received the Department’s SLL on July 21, 2021, given them approximately seven weeks before the start of the 2021-2022 school year to walk into the Placement School and inquire about the placement. This inaction demonstrates a lack of genuine interest in the recommended program.
It therefore should be determined that DOE provided the Student with a FAPE and if not, the parents cannot establish Prong 2, and Prong 3 favors the Department. The claim for tuition reimbursement, therefore, should be denied.
Parent’s Closing With respect to Prong 1, the Student presents with significant attentional difficulties, despite average cognitive levels. His most recent evaluation in December of 2020 revealed that he struggled with speed, memory, attention, and executive functioning skills. This report was provided to the CSE, and the CSE recommended ICT with SETSS and related services, despite that the report submitted to the CSE recommended a small class with significant individual instruction.
The Student required a special education program in all subjects. He could not make progress in a mainstream, general education, or ICT class. He was performing below grade level and the Department knew that that he attended a small, 15-student class with full time special education support from the Private School. The DOE therefore failed to develop an appropriate IEP based upon the Student’s needs and thus failed to provide the Student with a FAPE.
As for Prong 2, the Private School offers small special education classes and individualized instruction, and it challenges him in areas where he has shown strengths and more attention where he struggles. Finally, with respect to the Prong 3 equities, the parents provided a timely TDN, they offered the evaluation to the CSE and attended the IEP meeting and explored the DOE’s recommended placements. Finally, there is no evidence of any “bad acts” on the part of the parents.
It therefore should be determined that DOE failed to provide the Student with a FAPE, that the parents unilaterally placed the Student in an appropriate program, and that there are no equitable factors that warrant a reduction in tuition. Reimbursement of the tuition to the parents should thus be granted.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for witness credibility, I found no reason to doubt the veracity of any witness, with respect the facts they related or as to the earnestness of their expert opinions. That said, I do not give equal weight to all the testimony. This too will be reflected in the analysis.
LEGAL FRAMEWORK
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[155] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[156] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[157]
The U.S. Supreme Court has determined that a board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) there is no FAPE, in that 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.[158] These three prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.[159] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.[160] The standard required is a preponderance of the evidence.[161]
As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.[162] Moreover, the law does not require the CSE to adopt the parent’s preferred placement.[163] Even so, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[164] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[165] and then provides for the utilization of sufficient special education services,[166] and then is properly implemented.[167] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[168] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[169]
If the Department proves that the recommended program in the IEP offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.[170] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”[171] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.”[172] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.[173] In fact, 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.”[174] With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable,[175] whether the parents failed to make their child available for evaluation by the district,[176] or whether actions taken by the parents were unreasonable.[177] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needs-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent of the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.[178] “Important 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.”[179] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement.[180]
Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.[181] It is an important step, because the notice “gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections – all before the parents enroll their child in a private school and file a due process complaint.”[182] In a case where "parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement,"[183] as the parents of students enrolled in private school are not exempted from ten-day notice requirements.[184]
It is against this backdrop that I analyze the admitted evidence, including the Parent’s unilateral placement and equitable factors. If the factors weigh in favor of the Parents, an award is warranted, including any related services requested. In considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[185] with the only limitations being that the remedy “be appropriate in light of the purpose of the Act,”[186] and that damage awards are not available under the IDEA.[187]
ANALYSIS
Prong 1 – FAPE The Student here is classified by the CSE as a student with a Learning Disability.[188] For the 2021-2022 school year, the Student attended eighth grade in a small, special education school with a student/teacher/assistant ratio of no more than 8:1:2 in core subjects, and no more than 13:2:1 in non-core subjects.[189] The Parent attended the Student’s CSE meeting on January 29, 2021, which developed the IEP at issue.[190]
The Department contends that the IEP met the standards of a FAPE. Upon my review of the document, while I agree that it contained all the required information, including a statement of the student's present levels of academic achievement and functional performance, annual goals, recommendations, and other options considered,[191] I cannot conclude that the recommendations were designed to enable the Student to make progress and provided appropriate special education and services.[192]
The IEP includes a then-“Present Levels of Performance and Individual Needs”[193] section, with information taken directly from the December 28, 2020 neuropsychological report that had recommended the program at the Private School. It listed the Student’s substantial deficits, including his ranking between the 1st and 30th percentile in verbal comprehension, fluid reasoning, working memory, processing speed, word reading, decoding fluency, essay composition, and math problem solving.[194] It noted some of the same findings that the Neuropsychologist testified about, including how the Student “struggled markedly on tasks that assessed his attention and executive functioning skills” and that he “had significant difficulty working quickly[.]”[195] The “Management Needs” section of the IEP provided a litany of interventions and supports that the Student required, including “frequent prompts” and “[f]requent teacher check-ins” and “frequent breaks” to “help prevent fatigue and frustration” and to “provide him with opportunities to self-regulate” and it recommended that he “be seated where both auditory and visual stimuli are openly received” and that “he should be provided with a quiet area within the classroom to complete work or take tests” and that “he should be away from noise and distracting external stimuli such as other students or windows.”[196] Finally, the IEP mentions the Student’s parents’ presence, and that they shared their concerns that the Student had been showing “frustration,” and that “[i]nformation needs to be repeat[ed]” and “chunked and previewed and reviewed to help him complete tasks.”[197]
Given the extent of the Student’s deficits and the level of support he clearly needed to address these issues in the learning environment, it was the Department’s obligation to recommend a program commensurate to those deficits and need for support. The DOE Special Education teacher, who was a member of the subject IEP team, defended ICT with SETSS and related services as “a suitable program... because he would be with typically developing peers” receiving “on-grade level teaching” with “added support” where “content is being adapted by the special education teacher in the classroom[.]”[198] The Department did not demonstrate, however, how such a program – with 26 students and two teachers for core subjects and only 26:1 for all other subjects – could have attended to the more significant supports the Student required for his deficits in working memory, processing speed, problem solving, attention skills, and executive functioning skills, such as the IEP-recognized needs that he be placed “away from noise and distracting external stimuli such as other students” or that he “be provided with a quiet area within the classroom to complete work or take tests[,]”[199] or that he be given “[f]requent teacher check-ins” and “frequent breaks.”[200] Even the Special Education Teacher acknowledged that ICT is “one of the least restrictive settings within special education[,]”[201] an assessment I find incongruent with the above-needed supports. An IHO or “court may fairly expect th[e] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [their] circumstances.”[202] The Department’s explanation for its recommended program was neither cogent nor responsive in light of the Student’s significant needs.
It does not help the Department’s position that the Special Education Teacher also incorrectly believed that the neuropsychological report was “several years” old,[203] and therefore “not a measure of where [the Student] was at the time of the meeting[,]”[204] when, in fact, that report had been generated less than a month before the January 29, 2021 CSE meeting.[205] Although she later acknowledged that she was mistaken in her testimony, she did not make it clear whether she knew the 2020 evaluation to be the one she was reviewing at the time of the IEP meeting. It is thus not clear from the Department’s evidence whether the IEP team properly considered the evidence before it.
The Parent demonstrated, on the other hand, and as more fully developed in the Prong 2 analysis below, that the Private School’s program did, in fact, provide supports in line with the Neuropsychologist’s recommendations and observations, including that the Student could be challenged academically, because he “displays at least average intelligence, but [he] also... struggles with speed, memory, attention, and executive functioning”[206] due to his diagnosis of... ADHD”[207] as well as his diagnoses of a Specific Learning Disorder with Impairments in Reading and Written Expression.”[208] Moreover, and notwithstanding that he has “advocate[d] for and [has had] to convince a CSE team to” provide an ICT with SETSS program for other students,[209] the Neuropsychologist concluded that the Student here “cannot be placed in a large class with a large school environment” because it “would trigger an increase in [his] anxiety and impact an already fragile self-esteem[,]”[210] adding that “[g]roup SETSS services was also inappropriate because [the Student’s] anxiety interferes with his ability to work well in a group of up to eight children.”[211]
On this record, I find the Neuropsychologists opinion, as described in his report and his testimony,[212] a more accurate description of the Student’s needs and his required level of service and restriction than that provided by the Department’s witnesses and other evidence. I therefore conclude on this record that the IEP did not adequately address the Student’s needs, and that the recommendation of ICT – which is an otherwise general education integrated classroom with only one or two teachers for up to 26 student that still follows grade-level curriculum, standards, and pacing – was insufficient, given how clearly the Student required greater support, and I further conclude that the addition of SETSS and related services did not make up for those insufficiencies. This “IEP [was not] ‘likely to produce progress” as opposed to “regression,’” and it did not “afford[] the student with an opportunity greater than mere ‘trivial advancement.’”[213] In making my determination, I am granting that the CSE had to weigh whether the program it recommended (as well as those it rejected) would have provided the least restrictive environment. That goal, however, does not supersede the duty to ensure that a program is appropriate to the Student’s unique special education needs. I therefore conclude that the IEP was not “reasonably calculated to provide some ‘meaningful’ benefit”[214] and that the DOE failed to prove, by a preponderance of the evidence, that the IEP it developed offered the Student a FAPE.[215]
I further find that the Department also denied the Student a FAPE with respect to the implementation of the IEP, because the DOE Placement School would have removed even more of the Student’s supports than recommended by the CSE, by providing fewer ICT classes than listed in the IEP. The IEP called for 25 periods per week in ICT – ten of ELA, ten of math, three of social studies, and two of science.[216] The AP testified, however, that the Placement School could not comply with that program recommendation, because it’s program included only five periods each of ELA and math in an ICT setting.[217] She asserted that notwithstanding that shortfall, the Placement School still provided a “full ICT program” because it increased social studies and science classes to five each, arguing that ELA and social studies should be considered ten “integrated” periods because they involved similar skillsets, while math and science should be considered ten “integrated” periods for the same reason.[218] I find this unavailing.
Once a school district’s plan is approved and not objected to by a parent, the plan’s special education and related service must be applied in “conformity with the... individualized education program.”[219] A FAPE is thus denied if the services are not implemented in accordance with the IEP. [220] The deviation, however, must be more than de minimis,[221] it must be a “material failure[,]” one where “the services a school provides to a disabled child fall significantly short of the services required by the child’s IEP.”[222] It must be shown that “the school actually failed to implement an essential element of the IEP that was necessary for the child to receive an educational benefit.”[223] In a case with services similar to those proposed for the Student before me, the 9th Circuit Court of Appeals found that where a program offered “five hours per week of instruction in math” when the “IEP required 8-10 hours of math instruction per week... [the] five-hour shortfall was a material implementation failure.”[224] Here, the subject IEP called for no less than ten periods per week of math and ten periods per week of ELA, and the Placement School could not provide more than five periods of each. Cutting the number of math and ELA classes in half from what was designated in the IEP is the exact material “fail[ure] to implement an essential element of the IEP” as was determined by the 9th Circuit.[225]
The additional social studies and science ICT classes offered by the Placement School did not save its program from having materially deviated from the IEP, for two reasons. First, the IEP did not order “integrated” skillsets associated with ELA or math for the Student – it ordered “ELA... 10 time(s) per week” and “Math... 10 time(s) per week[.]”[226] That is what was called for, and that is what was to be provided. Second, the IEP required only three periods of social studies and two periods of science; offering more classes in those subjects did not otherwise constitute compliance where the IEP did not call for those additional classes.
Finally, I note that the Placement School’s deviation was not cured with the addition of its “Academic Intervention Services,” as AIS was not part of the IEP, and it was not a special education service, being made available to all students.[227] For these reasons, I find that the DOE’s intended program implementation materially and substantially deviated from the IEP, and that this constituted a second, independent, substantive denial of FAPE. I therefore find that the DOE has failed to meet its burden under the first prong of the Burlington/Carter standard.
Prong 2 – Appropriateness of Unilateral Placement
Having determined that the Department did not offer the Student a free and appropriate education, I must next turn to the Parent, who “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[228] A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a [disabled] child.’”[229] The parents rejected the recommendation of the CSE and instead enrolled the Student in the Private School. They offered into evidence the testimony of the AH,[230] the school’s class schedule,[231] the Student’s attendance record,[232] his “Progress Reports,”[233] and the contract and payment information.[234] Consistent with the recommendation of the Neuropsychologist, the Private School offers a dedicated full-time special education program for students with disabilities.[235] The school utilizes a 8:1:2 setting for the Student’s math class, and 7:1:1 for ELA.[236] For history and science, the class ratio was 13:2:1.[237] All of the Private School’s teachers have at least a Master’s degree, and the teachers and assistant teachers provide students with 1:1 support.[238]
The AH testified that the Private School provided the Student with a number of supports to address his attention deficits, including placing him in a seat near the front of the class so that the teacher could continually refocus him, as well as give him opportunities to take breaks or walk around the classroom to refocus, 1:1 instruction when writing, and the use of a graphic organizer to express his ideas.[239] All this has “allow[ed] him to feel confident and take ownership of his learning.”[240] The AH also emphasized that the Student also “needs a smaller class” because it “ensures that a teacher might notice when [he] is just sitting” and requires “prompting to get back on task if he might... disengage.”[241] She found that “a small class size... really just ensures that he is able to make the appropriate progress that he needs in order to be a successful adult.”[242]
Over the course of the 2021-2022 school year, the Private School tracked the Student’s progress. The AH watched him increase “his advocacy... seeking support when he needs it[,]” such that “[a]t the start of the year, he was a little more apprehensive about showing his work on the board, but by the end of the year, in march class, he was... the first to [say], ‘I nailed that question. Can I show you how I did it?’”[243] In the ELA class, the Student “needed a little more support” at the beginning of the year,” but they “saw a lot of progress with [the Student] by the end of the year. He was able to come up with his main idea and... know [that] this passage is... ‘supporting what I am trying to say[.]’”[244] After assessing the Student at the end of the year, the Private School determined that he went from a sixth-grade level in reading to a seventh-grade level.[245] The AH also found that “when he is listening to human voice, his comprehension is stronger... that of an eighth-grade student.”[246] As for math, it “[wa]s a little bit harder for [him] than the... English was. He came in working around probably like an early fifth-grade level and was working around a sixth-grade level at the end of the year.”[247]
“[E]vidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.”[248] It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.”[249] Given the degree to which the Student’s diagnoses caused him to struggle when learning, and the amount and degree of supports he required to perform well academically, including all the individualized attention and small group classrooms and the other necessary modifications, the program described by the AH, which was undisputed by the Department, clearly meets this standard. The school provides the exact type of small setting with frequent 1:1 and small group support to aid in the Student’s learning and focus his attention. The Progress Reports further demonstrated that the Student was doing well academically with the various supports in place. On this record, therefore, I conclude that the program chosen by the Parent is appropriate to meet their child’s needs,[250] and that the parents have met their Prong 2 burden under the Burlington/Carter analysis.
Prong 3 – Equitable Considerations
Finally, I must weigh pertinent equitable factors. The record is clear that the Parent never obstructed and, in fact, fully cooperated with the DOE during the entirety of the IEP process, which is “[i]mportant to the equitable consideration[s]” analysis[251] because equities can generally favor the parents when they cooperate in good faith and properly notify the district of the unilateral placement.[252]
Here, the parents attended the IEP meeting on January 29, 2021,[253] and expressed their concerns to the CSE. The Department sent the parents the PWN[254] and SLL[255] that designated the DOE Placement School with the ICT, SETSS, and related services program on July 21, 2021.[256] There were, in fact, two schools recommended to the parents, and they made numerous attempts to arrange tours of both schools.[257] The first school eventually gave them an in-person tour, but they were concerned that it was “the full class size of a typical public school.”[258] The second recommendation was the DOE Placement School.[259] They made multiple phone calls and left messages with no response.[260] After being unable to communicate with the Placement School, they walked by it one day and they looked at its website. (Id. pg. 100-111) In its closing, DOE suggested that seven weeks between the SLL notification of the DOE Placement School and the beginning of the school year was enough to do more than “walk by” the school, and that they should have “walked in” to inquire about placement. Putting aside the question of whether a public school would have allowed someone to just “walk in” given security and COVID-19 concerns, I find it difficult to see how this favors the Department, who offered the school to the parents and then failed to communicate with them. DOE cannot benefit from that failure.
The record also shows that the parents entered into the contract with the Private school for the 2021-2022 school year before they rejected the Department’s program in their TDN.[261] Enrolling a student in a private program before rejecting a DOE placement recommendation may be considered evidence that the parents did not intend to send their child to public school.[262] However, where “the parents signed an enrollment contract... and paid the registration fee to secure a seat for the upcoming school year” before the parents “receiv[ed] the final notification of placement... [and then] notified the Department of their rejection of [that placement,]” it may still be held that the “parents did not act so unreasonably as to warrant a denial of or reduction in reimbursement” where the “contract permitted the parents to withdraw [the student] from [the private school] without financial penalty if they accepted a public school placement” and in the TDN the “parents indicated that they were willing to meet with the Department to try to resolve the matter.”[263] The contract for the payment of tuition that the parents here signed contained a clause that stated, in part, that “the Contract, excluding [a] non-refundable deposit, may be cancelled after May 1, 2021 and prior to September 1, 2021, if the student is placed by the Parent(s) in a public school class recommended by the local education agency... in accordance with an Individualized Education Program.”[264] In addition, the TDN stated, in part, that “[t]he [p]arents request that the CSE contact them immediately to address the... issues and provide an appropriate program and placement to the student prior to the beginning of the school year[.]”[265] On this evidence, I find that the evidence reflects the parents willingness to still consider a public school option if the Department had acted on the TDN, and that they therefore did not act unreasonably with respect to their entering into the contract before rejecting the DOE Placement School.[266]
Finally, there is no argument or evidence that there was any fraud or collusion,[267] or any colorable argument that the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA,[268] or that the parents failed to make their child available for evaluation by the district,[269] or that any of their other actions were unreasonable,[270] or that the cost of the Private School was unreasonable.[271] Taken in their totality, the equitable considerations favor the Parent and do not favor the Department. I find that the third prong of the Burlington/Carter standard has been established for the Parent, and that remedies are therefore warranted in this case.
Remedies
Tuition The parents offered into evidence proof that the cost of tuition for the 2021-2022 school year was $83,600.00,[272] of which the parents paid all of that amount.[273] Accordingly, I find the Parent is entitled to be reimbursed the sum of $83,600.00, for the entirety of the tuition obligation the parents paid to the Private School.
Transportation The hearing was held after the Private School ended its 2021-2022 school year on June 30, 2022.[274] Although transportation costs were not mentioned at the hearing, they were raised in the DPC.[275] To the extent the IDEA requires that a school district provide transportation for a child with a disability,[276] and to the extent that the Parent provided no evidence of a particularized or continuing need for transportation, or of a specific cost the Parent paid or other related loss warranting transportation reimbursement, I find only that the Department was responsible for transportation, and its cost, for the 2021-2022 school year, to the extent not already provided.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall directly reimburse the parents for the entirety of the amount the parents paid for the cost of the aggregate tuition for the 2021-2022 school year, in the amount of $83,600.00; and it is further, Ordered, that the DOE shall make round-trip door-to-door special education transportation services available to enable the Student’s attendance at the Private School for the 2021-2022 school year.
So Ordered.
Dated: August 12, 2022
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Due Process Complaint
12/15/2021
5
2
10-Day Notice
08/25/2021
3
3
Individualized Education Program
01/29/2021
31
4
Prior Written Notice
07/21/2021
4
5
School Location Letter
07/21/2021
3
6
Social History Update
02/11/2018
3
7
Neuropsychological Evaluation
12/28/2020
16
8
[Redacted] Q1’20-’21 Progress Report
11/2020
15
9
Psychoeducational Tri-Annual Report
02/11/2018
5
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Impartial Hearing Request
12/15/2021
5
B.
Ten Day Notice
08/25/2021
3
C.
[Redacted] Neuropsychological Evaluation
12/28/2020
16
D.
[Redacted] Enrollment Contract
02/12/2021
4
E.
[Redacted] Student Schedule
2021-2022
1
F.
[Redacted] Student Attendance
06/16/2022
1
G.
[Redacted] Fall Qtr 1 Progress Report
2021-2022
15
H.
[Redacted] Fall Semester Report
2021-2022
11
I.
[Redacted] Therapy Interim Report
Fall 2021-2022
3
J.
[Redacted] Fall Qtr 1 Progress Report
2021-2022
15
K.
[Redacted] Fall Progress Report
2021-2022
11
L.
[Redacted] Fall Therapy Interim Report
January 2022
3
M.
[Redacted] Qtr 3 Progress Report
2021-2022
14
N.
[Redacted] Final Progress Report
2021-2022
11
O.
Spring Therapy Interim Report
June 2022
3
P.
[Redacted] Affidavit of Payment
07/13/2022
1
Q.
Affidavit of [Redacted], PsyD.
07/13/2022
5
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Pre-Hearing Conference Summary and Order
05/12/2022
2
II.
Order of Extension
05/12/2022
1
III.
Order of Extension 2
06/03/2022
1
IV.
Order of Extension 3
06/08/2022
1
V.
Order of Extension 4
07/28/2022
1
VI.
Scheduling Order
06/03/2022
4
VII.
Scheduling Order 2
06/08/2022
2
VIII.
Closing Statements Scheduling Order
07/20/2022
2
IX.
Closing Statements Scheduling Order 2
07/28/2022
4
Footnotes
[1] See 20 U.S.C. § 1415(f).
[2] See Educ. Law §§ 4404(1) and 3602-c(2)(b)(1).
[3] See Ex. A-2 to A-3.
[4] See Ex. A-3.
[5] See Ex. A-3 to A-4.
[6] See IHO Exs. I and II.
[7] See IHO Exs. III, IV, and V.
[8] See IHO Exs. VI and VII.
[9] See IHO Exs. VIII and IX.
[10] In this decision the transcript of the June 8, 2022 hearing will be referred to as “Tr.1,” the transcript of the June 28, 2022 hearing will be referred to as “Tr.2,” and the transcript of the July 20, 2022 hearing will be referred to as “Tr.3.”
[11] See Exs. 1 through 9, and A through Q.
[12] The Neuropsychologist’s direct testimony was provided via affidavit, and he appeared for cross-examination.
[13] See Ex. A.
[14] See Ex. 3-1.
[15] Id. ¶ 19.
[16] See id. at 3-31.
[17] See id. at 3-1.
[18] See id. at 3-2 through 3-4.
[19] Id. at 3-3, 3-4, and 3-29.
[20] Id. at 3-5.
[21] Id.
[22] See id. at 3-22 to 3-23.
[23] Id. at 3-29 to 3-30.
[24] See id. at 3-31; see also Tr.1 17-18.
[25] Tr.1 pg. 22.
[26] Id.
[27] Id. pg. 23.
[28] Id. pg. 24.
[29] Id. pp. 24-25 (emphasis added).
[30] Id. pp. 27-28.
[31] Id.
[32] Id. pg. 25.
[33] Id. pg. 33.
[34] Id. pg. 36.
[35] Id. pg. 53.
[36] Tr.2 pg. 88.
[37] Id. pg. 95.
[38] Id. pp. 88-89.
[39] Id. pg. 89.
[40] Id. pg. 91.
[41] Id. pp. 91-92.
[42] Id. pg. 92.
[43] Id. pg. 98.
[44] Id.
[45] Id. pp. 92-93.
[46] Id. pp. 99-100.
[47] Id. pp. 93-94.
[48] Id.
[49] Id. pp. 98-99.
[50] Id. pp. 100-102.
[51] Id. pg. 102.
[52] Id. pg. 103.
[53] Id.
[54] See Exs. 1 through 9, respectively.
[55] See Exs. 4-1 and 5-1.
[56] Ex. 5-2.
[57] See Ex. 6-1.
[58] See id. at 6-2.
[59] Id.
[60] Tr.3 pg. 24.
[61] Id. pg. 25.
[62] Id. pp. 25-26.
[63] Id. pg. 27.
[64] Id. pg. 29.
[65] Id.
[66] Id. pp. 29-30.
[67] Id. pg. 31. The REDACTED Program was described in her cross-examination, below.
[68] Id. pp. 31-32.
[69] Id. pp. 32-34.
[70] Id. pg. 35.
[71] Id. pp. 38-39.
[72] Id. pp. 40 and 41.
[73] Id. pp. 35-36.
[74] Id. pg. 39.
[75] Id. pg. 44.
[76] Id. pp. 42-43.
[77] Id. pg. 44.
[78] Id. pp. 44-45.
[79] Id. pp. 45-47.
[80] Id. pp. 48-49.
[81] Id. pg. 49.
[82] Id.
[83] Id.
[84] Id. pp. 50-51.
[85] Id. pp. 57-61.
[86] Id. pp. 62-64.
[87] Id. pg. 65.
[88] Id. pp. 70-72.
[89] Id. pp. 78-80.
[90] Ex. Q ¶ 18.
[91] Id. ¶ 19.
[92] Id. ¶¶ 18-19.
[93] Id. ¶¶ 20 and 22.
[94] Id. ¶ 23.
[95] Id. ¶ 23.
[96] Id.
[97] Id. ¶¶ 28-29.
[98] Id. ¶ 30.
[99] Id. ¶ 31.
[100] Id. ¶ 32.
[101] Id. ¶ 37.
[102] Id. ¶¶ 34-35.
[103] Id. ¶ 36.
[104] Id. ¶ 37.
[105] Id. ¶ 39.
[106] Tr.3 pg. 87.
[107] Id. pp. 87-88.
[108] Id. pg. 88.
[109] Id. pg. 89.
[110] Id.
[111] Id. pg. 90.
[112] Id. pg. 91.
[113] Id.
[114] See Ex. Q.
[115] Tr.3 pg. 91.,
[116] Id. pg. 97.
[117] Id. pg. 98.
[118] Id. pg. 99.
[119] Id. pp. 99-100.
[120] Id. pg. 100.
[121] Id. pg. 101.
[122] Id.
[123] Id. pg. 101-102.
[124] Id. pg. 106.
[125] Id. pg. 102.
[126] Id. pg. 103.
[127] Id. pp. 106-107.
[128] Id. pp. 107-108.
[129] Id. pg. 108.
[130] Id.
[131] Id.
[132] Id. pp. 108-109; see also Ex. P-1.
[133] Id. pg. 100-111.
[134] Id. pp. 111-112.
[135] Id. pg. 112-113.
[136] Id. pg. 113.
[137] See Exs. A through Q.
[138] See Exs. G, H, and I, respectively.
[139] Tr.3 at pg. 18.
[140] See Exs. J, K, L, M, and N.
[141] Ex. G-2 to G-6.
[142] Ex. J-1 to J-2.
[143] Ex. J-5 to J-6.
[144] Ex. C-3.
[145] Ex. C-4.
[146] Ex. C-5.
[147] Ex. C-5 to C-8.
[148] Ex. C-9.
[149] Ex. C-10.
[150] Ex. C-11.
[151] Id..
[152] Ex. C-11 to C-13.
[153] See IHO Ex. IX.
[154] I summarize only their arguments with respect to the record; I will address any arguments of law I deem appropriate in the Analysis section of this decision.
[155] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[156] See 34 C.F.R. § 300.13.
[157] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[158] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[159] See id.
[160] See NYS Educ. Law § 4404(1)(c).
[161] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[162] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[163] See S.Y. and R.Y. v. New York City Bd. of Educ., 15 Civ. 6277 (AT), 2016 WL 5806859, at 9 (SDNY Sept. 28, 2016).
[164] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[165] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008) (establishing annual goals related to those needs, see 34 C.F.R. § 300.320[a][2]; and 8 NYCRR 200.4[d][2][iii]).
[166] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[167] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[168] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[169] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[170] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[171] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[172] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[173] See id. at 364 (citing Carter, 510 U.S. 7 at 14).
[174] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[175] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[176] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[177] See id.
[178] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[179] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[180] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[181] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
[182] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[183] Id.
[184] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[185] See Doe v. East Lyme, 790 F.3d at 454.
[186] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[187] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[188] See Ex. 3-1.
[189] See Tr.3 pp. 39 – 41.
[190] See Id. at 1-31.
[191] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[192] See id; see also 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v), and Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[193] See Ex. 3-1 to 3-5.
[194] See id. at 3-1 to 3-2.
[195] Id. at 3-2.
[196] Id. at 3-5.
[197] Id. at 3-3.
[198] Tr.1 pp. 27-28.
[199] Ex. 3-5.
[200] Id.
[201] Tr.1 pg. 33.
[202] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[203] Id. pp. 24-25.
[204] Id. pg. 25.
[205] See Ex. C, dated December 28, 2020.
[206] Id. ¶ 23.
[207] Id. ¶¶ 28-29.
[208] Id. ¶ 32.
[209] Id. pg. 91.
[210] Id. ¶ 36.
[211] Id. ¶ 37.
[212] See Exs. C and Q, and Tr.2 pp. 84-94.
[213] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[214] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[215] Because I am finding that the IEP did not substantively provide a FAPE, I need not entertain the Parent’s assertion in the DPC that FAPE was denied for procedural deficiencies.
[216] See Ex. 3-22.
[217] Id.
[218] Id. pp. 92-93.
[219] U.S.C. § 1401(9)(D); see also 34 C.F.R. 300.320.
[220] See Application of a Student with a Disability, Appeal No. 21-244.
[221] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).
[222] Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007).
[223] Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 (8th Cir.2003) (deciding that the IDEA was violated where there was no cohesive plan to address the child’s need, denying an essential benefit offered by the IEP).
[224] Van Duyn v. Baker Sch. Dist. 5J, supra.
[225] Neosho R-V Sch. Dist. v. Clark, supra.
[226] See Ex. 3-22.
[227] Van Duyn v. Baker Sch. Dist. 5J, supra.
[228] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).
[229] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89]).
[230] See Tr.3 pp. 20-82.
[231] See Ex. E.
[232] See Ex. F.
[233] See Exs. G, H, J, K, M, and N.
[234] See Exs. D and P.
[235] Head Teacher Aff. ¶ 4.
[236] Id. pp. 38-39.
[237] Id. pp. 40 and 41.
[238] Tr.3 pp. 26-27.
[239] Tr.3 pp. 45-47.
[240] Id. pg. 49.
[241] Id. pp. 48-49.
[242] Id. On cross-examination, AH acknowledged that student can to well in an ICT setting (see id. pp. 70-72); this does not mean, however, that she found ICT was the proper setting for this Student, especially since she was concerned that if he were in a large classroom, he would “fall through the cracks.” Id. pp. 50-51.
[243] Id. pp. 35-36.
[244] Id. pg. 39.
[245] Id. pp. 42-43.
[246] Id. pg. 44.
[247] Id. pg. 44.
[248] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[249] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[250] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[251] See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[252] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[253] See Ex. 3-31.
[254] See Ex. 4.
[255] See Ex. 5.
[256] See id. at 5-1.
[257] Id. pg. 101-102.
[258] Id.
[259] Id. pg. 102.
[260] Id. pg. 103.
[261] It is unclear if the parents signed the contract on February 12, 2022, which is the date next to the “Head of School” signature, because there is no date next to the e-signature lines for the parents. In addition, the Parent could not recall when he or his partner signed the contract (Tr.3 pg. 111), although the agreement was likely in effect some time before July 8, 2021, because that is when the parents paid the balance of the tuition (see Ex. P-1), and the TDN is dated August 25, 2021. See Ex. B.
[262] See P.K. v. N.Y.C. Dep’t of Educ., 89 F. Supp 2d 90, 117 (E.D.N.Y. 2011); cf. M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (“courts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child’s IEP”).
[263] P.K. v. N.Y.C. Dep’t of Educ., 89 F. Supp 2d at 117-118.
[264] Ex. D-2.
[265] Ex. B-2.
[266] See Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[267] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[268] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[269] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[270] See id.
[271] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[272] See Ex. D-1.
[273] See Tr.3 pp. 108-109; see also Ex. P-1.
[274] See Ex. A-4.
[275] See id.
[276] See Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted); see Education Law §§ 4401(1) and 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww).