New York City Department of Education, Impartial Hearing Decision

NYSED # 569500 / NYC # 224212

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

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

Hearing Requested by: REDACTED, Esq., of REDACTED, on behalf of REDACTED (the “Parents”) and the Student

Record Close Date: September 13, 2022

Hearing Officer: Randy Glasser, Esq.

On January 31, 2022, REDACTED of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding his special education program and services for the 2021/2022 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”), Section 504 of the Rehabilitation Act, and Article 89 of the New York State Education Law (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on January 31, 2022. A Prehearing Conference was held for this matter on March 15, 2022, Status Conferences on April 12, 2022, May 18, 2022, and June 16, 2022, and a Hearing on August 2, 2022. At the Hearing the District was represented by District Representative, REDACTED, and the Parents and Student by REDACTED. Pursuant to REDACTED’s request, the Parties prepared written closing statements, which pursuant to the Parties’ agreement were submitted on August 30, 2022 (see District’s Closing Statement at IHO Ex. “III” and Closing Statement on Behalf of the Parents at IHO Ex. “IV”).

Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to September 13, 2022 (IHO Ex. “V”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old, classified as a student with a Learning Disability, and diagnosed with an unspecified neurodevelopmental disorder, which accounted for his various learning difficulties across all domains as well as his low average functioning, and attention deficit hyperactivity disorder (“ADHD”), “combined presentation, due to significant difficulties with attention and executive functioning including difficulties with recall, retrieval, impulsivity, regulating and sustaining attention, planning and organizing, and a low processing speed.” He also “has difficulties with approaching novel problems and solving tasks” (Parent Ex. “C”; see also: “K” at ¶20).

The Student’s Individualized Education Program (“IEP”), dated September 23, 2021, for the 2021/2022 school year recommends the following ten (10) month special education program and services: Special 12:1 class for English Language Arts (“ELA”), and Math, both ten (10) times per week, one (1) period per session, Social Studies three (3) times per week, one (1) period per session, and Sciences two (2) times per week, one (1) period per session, along with Special Education Teacher Support Services (“SETSS”) for ELA three (3) times per week, one (1) period per session, SETSS for Math, two (2) times per week, one (1) period per session, individual Counseling services one (1) time per week, thirty (30) minutes per session, individual occupational therapy three (3) times per week, thirty (30) minutes per session, individual speech-language therapy two (2) times per week, thirty (30) minutes per session, and individual speech language therapy one (1) time per week, thirty (30) minutes per session (IHO Ex. “I”).

The Parents are seeking reimbursement for the Student’s home program, consisting of full-time, 1:1 special education teaching support, approximately five (5) hours per day for the 2021/2022 school year (Parent Ex. “A”; Tr. 63). The District did not present a case to defend the school year at issue and did not call any witnesses (Tr. 60).

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

FINDINGS OF FACT AND DECISION

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

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

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

Id. (Emphasis added)

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

• • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.
• • B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

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

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As stated above, the DOE failed to put on a direct case or submit any evidence into the record (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Consequently, since the hearing record is devoid of any persuasive evidence, arguments or statutory authority proffered by the District, which can adequately support a contention or otherwise negate the Parents’ allegations, it is this IHO’s finding, that the District both procedurally and substantively denied the Student a FAPE, for the 2021/2022 school year.

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

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

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

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

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s home-based program provided him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress in such program. In this regard the Learning Assessment Report, Parent’s testimony and Neuropsychologist’s testimony discuss how in part, the goals that provided the basis for the Student’s one-to-one home program, and how such program addressed his areas of need (see Parent Ex. “G”, and “L” at ¶¶38, 39-52, 54-58, and “K” at ¶¶41-45, respectively).

Moreover, the Review of Academic/Processing Skills and Learning Progression Assessment Report contain both the Student’s testing and anecdotal report which demonstrate the Student’s progress in his 1:1 home program. In this regard, on the Woodcock Johnson IV, the Student’s scores during the period from September 2021 to June 2022, went from a 1.9 to a 5.2 grade equivalent for reading fluency, 2.7 to 6.5 for calculation, 1.5 to 3.7 for math fluency, 1.5 to 5.5. for passage comprehension, and 1.1. to 3.0 for spelling. While on the Detroit Test of Learning Aptitude, the Student’s Age Equivalent between September 2021 and June 2022 went from an age equivalent of 4-6 to 10-9, for Auditory Attention for Unrelated Words, 5-0 to 14-3 for Visual Attention Span for Objects, and from 3-9 to 6-3 for Auditory Attention for Related Words. While on the WISC IV, the Student’s scores improved as well (Parent Ex. “I”).

In addition, the Neuropsychologist testified regarding the Student’s overall progress and more particularly with, regard to his processing and fluency skills, mechanics of writing (Parent Ex. “K” at ¶¶46-47,49-55), and the Parent testified regarding his “incredible progress over the school year”, “significant progress” with processing skills, which helped him build his vocabulary and retain informant from reading, progress in letter-word identification, reading fluency, reading accuracy, math calculation, math facts fluency, and spelling, executive functioning including organization and impulsivity, “significant progress” with memory, processing speed, language skills, and automatic access of information, progress with auditory attention and visual processing, and improvement in his content retention and ability to recognize and repeat information with appropriate language skills (Parent Ex. “L” at ¶¶59-66, 68-69).

The District’s only objection to the home-based program appears to be that “the home-based program was overly restrictive for [the Student]and is, overall, one of the most restrictive programs for students. The facts in this case did not merit home-based placement and the nature of [the Student’s] disabilities did not warrant it either. The District requests that the Parent’s request for relief be denied” (IHO Ex. “III”).

In this regard, the Parents’ assert in relevant part in their Closing Statement:

“[P]arents may not be subject to the same mainstreaming [or LRE] requirements as a school board” (M.S., 231 F.3d at 105, citing Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also Frank G., 459 F.3d at 364). While the restrictiveness of a parental placement may be considered as a factor in determining whether parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Walczak, 142 F.3d at 122; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), parents are not as strictly held to the standard of placement in the LRE as are school districts (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 830, 836-37 [2d Cir. 2014]; [noting “while the restrictiveness of a private placement is a factor, by no means is it dispositive” and that “inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal that the Supreme Court recognized in Burlington.” see Carter, 510 U.S. at 14-15; M.S., 231 F.3d at 105 [stating that parents “may not be subject to the same mainstreaming requirements as a school board”].

This applies in full force to the instant matter and is compounded by the district’s failure to put forth any program for [the Student] for the 2021-22 school year. Even so, the record establishes that the parents did not make the decision to place [the Student] in a one-to-one program hastily. They weighed [the Student’s] academic needs and considered his limited contact with other children and the large number of one-to-one services with an adult. Likewise, the Neuropsychologist testified that the decision to recommend one-to-one support for [the Student] was not made lightly (Tr. 77). Instead, it was weighed against [the Students’] specific need for intensive, one-to-one support to derive any benefit from education.

Accordingly, consistent with the opinions of educational and clinical professionals, and in the absence of any program recommended by the NYC DOE, the parents decided to provide their child with the necessary academic support to enable him to gain the skills necessary to re-enter a traditional school setting, and the evidence in the hearing record shows that the one-on-one program provided [the Student] with an educational program that met his special education needs and allowed him to get to that level (Exs. G, H, I, K, L; Tr. 78, 94) Accordingly, LRE^[1] considerations alone do not preclude an award of reimbursement.

Given that the “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral program, and in light of [the Student’s] academic needs and the level of one-to-one support that he required,^[2] the record supports the appropriateness of [the Student’s] receipt of intensive, full-time one-to-one support and LRE considerations do not preclude a finding that the parents’ unilateral program of intensive one-to-one teaching was appropriate.

(IHO Ex. “IV”).

A private placement is not required to satisfy the IDEA's mainstreaming requirement for purposes of reimbursement and thus the DOE's least restrictive argument fails. Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 400 (6th Cir. 1998); see Gabel v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 326 (S.D.N.Y. 2005) ("While a court may consider the least restrictive environment issue, a parent's inability to place his child in the least restrictive environment does not bar parental reimbursement.").

Moreover, although a student's progress in a unilateral private is not dispositive of the determination of whether it is appropriate, such progress is relevant. P.K. v. New York City Dep't of Educ. (Region 4), 819 F. Supp. 2d 90, 115 n.12 (E.D.N.Y. 2011). As aforementioned, the record demonstrates that Student made progress and, in some areas “significant progress” in his home-based program during the 2021/2022 school year (see: infra).

Accordingly, the Parents have established that the home-based program provided educational instruction specially designed to meet the unique needs of Student, supported by services that are necessary to permit Student to benefit from instruction. See Baquerizo, 635 F.3d at 1159, and the restrictive of the home-based placement does preclude the Parents from reimbursement in the instant case, and the Parents have satisfied Prong II of the Burlington/Carter Criteria.

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2021/2022 school year. Moreover, the Parents provided notice to the District of their placement in the home -based program for the 2021/2022 school year (Parent Ex. “B”).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s 1:1 home-based program for the 2021/2022 school year. The record in this case establishes that the total amount charged for the Student’s home-based program was SIXTY-FOUR THOUSAND FIVE HUNDRED TWENTY-FOUR DOLLARS AND SIXTY-FOUR CENTS ($64,524.64) for the 2021/2022 school year (Parent Ex. J”).

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents the total amount of SIXTY-FOUR THOUSAND FIVE HUNDRED TWENTY-FOUR DOLLARS AND SIXTY-FOUR CENTS ($64,524.64), representing the total amount charged for the Student’s 1:1 home-based program for the 2021/2022 school year.

September 13, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING

HELD ON AUGUST 2, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, REDACTED

REDACTED, Parent

REDACTED, Parent

REDACTED

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. IEP, 9/23/2021, 8 pages

II. IEP, 9/25/2020, 11 pages

III. District’s Closing Statement, 8/30/2022, 3 pages

IV. Closing Statement on Behalf of the Parents, 8/30/2022, 21 pages

V. Order of Extension, 8/2/2022, 1 page

• • DOE Exhibits
• • None
• • Parents’ Exhibits A. Due Process Complaint, 01/31/2022, 5 pages B Notice of placement, 8/25/2201, 3 pages C Neuropsychological evaluation, 6/30/2022, 17 pages D IEP, 9/25/20, 28 pages E Due process response, 5/12/2022, 4 pages F Psychoeducational evaluation, 5/25/2021 and 7/21/2201, 4 pages G Learning assessment report, 9/20/2021-9/24/2021, 7 pages H Review of academic/processing skills, 1/10/2022 to 1/18/2022, 6 pages I Learning Progression Assessment Report, 6/2/2022, 6 pages J Invoices for learning support program, 9/10/2022 to 6/15/2022, 17 pages K Affidavit of Neuropsychologist, 7/25/2022, 6 pages L Affidavit of Parent, 7/25/2022, 7 pages

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] Once [the Student] was removed from school and the district failed to offer the student a FAPE, although it may have been more in keeping with the principles underlying LRE considerations for the parents to have explored options other than a one-on-one home program, their choice of an intensive one-to-one academic program was what [the Student]needed and was not so restrictive that it was inappropriate (see, e.g., C.B. v. Special Sch. Dist. No. 1, 636 F.3d 981, 990-91 (8th Cir. 2011)).

[2] While the one-on-one program might not have maximized [the Student’s] interaction with nondisabled peers, in this instance, it does not weigh so heavily as to preclude the determination that the parent’s unilateral program was appropriate for [the Student] in light of his needs.