New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 224530

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: February 15, 2022

Hearing Dates: September 22, 2022

October 14, 2022

Actual Record Close Date: October 14, 2022

Decision Date: October 28, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2022

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], Head of School

For the Department of Education:

[Redacted], District Representative

[Redacted], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about February 15, 2022, regarding the 2021/22 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2021/22 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School, as well as funding/reimbursement for related services and transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on February 16, 2022. A prehearing conference was held on March 25, 2022, to discuss the issues in the case. After several status conferences and a lack of an update on the investigation from the District, a hearing was scheduled for September 22, 2022, for the District’s case (See, Transcripts).^[2] The District did not present a case on that date and requested an adjournment in order to have more time to make a determination on the investigation. The adjournment was denied. The matter was then scheduled for October 14, 2022, for the Parent’s case. The Parent presented exhibits^[3] and two witnesses. The record closed on October 14, 2022. There were approximately four extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old student who attended the Private School during the 2021/22 school year (P-Ex. A). The Student is classified and diagnosed with Autism (T. 131). The Student was described as having significant academic, social and emotional needs (P-Ex. A-1). The Student struggled in the areas of reading comprehension, verbal reasoning, and math (P-Ex. A-1). The Student also presented with sensory integration challenges, social skills weaknesses, language impairments and developmental delays (P-Ex. A-2). The Parent testified that the Student began to demonstrate difficulties at the age of two (T. 130). The Parent had the Student evaluated and the Student began receiving special education services through Early Intervention (T. 131).

The Parent participated in an IEP meeting for 2021/22 on June 14, 2021 (T. 131-132). The IEP team recommended a 15:1 classroom program with related services of speech language therapy, counseling and parent counseling and training, but the Parent was concerned with the class size (P-Ex. B; T. 132). The Parent testified that the Student needed a small environment and to be with regular education students (T. 132-133). Parent received a copy of the IEP and school location letter (P-Ex. B; T. 133). The Parent attempted to call the recommended public school during the summer but had a hard time getting them by phone, so she went to the school herself (P-Ex. B; T. 133-134). The Parent was told that it would be better to visit the school closer to the beginning of the school year and she would get a tour and more information (T. 133-134). The Parent again tried to call at the beginning of the year to make an appointment but was unable to speak with anyone, so she went to the school again and spoke with the Assistant Principal (T. 134). The AP told the Parent that they did not have a spot available for the Student and that the 15:1 class was full (T. 134). The Parent asked about other 15:1 classes in the school and she was told that the class was full (T. 134).

On August 24, 2021, the Parent sent a letter through her attorney indicating her concerns regarding the recommended program and location, difficulty visiting the school, and notifying the District of her intent to continue the Student’s placement at the Private School (P-Ex. B; C; T. 135). The Parent never received a response from the District (T. 135). The Parent saw progress in previous school years and believed the Student would continue to make progress at the Private School and continued the Student’s placement for the 2021/22 school year (T. 136). The Parent signed the contract in the middle of September and made a partial payment to the Private School (P-Ex. E; G; H; T. 136-137). The Parent testified that it was hard to continue to make payments with her income and was unable to pay the remainder of the tuition (T. 137-138).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District failed to present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 school year. The District failed to provide any evidence regarding how the recommendations in the IEP would support the Student’s needs; how it would implement the recommendations in the IEP; or confirm whether the recommended public school placement could accommodate the Student’s recommended 15:1 classroom program. Therefore, I find that the District did not provide the Student with FAPE for the 2021/22 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

(Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65).

Finding that the District did not provide FAPE to the student during the 2021/22 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

Here, the Head of School for the Private School testified regarding the Private School and Student (T. 63). She testified that her responsibilities included hiring, admissions, training, setting up services for students, and reviewing progress, among other things (T. 64-65). The Private School is divided into three schools: the Upper school, Middle School and Lower school (P-Ex. I-2; T. 65). The Upper school has 12-14 students in each class (T. 65). Typically, there is one teacher in the classroom, but they use a team-teaching philosophy where special needs specialists work with the classroom teachers and at times the special education teacher pushes into the classroom to provide services (T. 65). The guidance counselor also pushes in and at times there is a team-teaching class where the English and History teacher teach the class together (T. 65-66). The Private School had approximately 175 students enrolled from pre-k through 12th grade during the 2021/22 school year (T. 66-67).

The Private School has a special needs program called [Redacted], that was described as a mainstream program for students with learning differences who were college bound (T. 67). The program enables students with non-traditional learning styles to participate successfully in the academic program by providing a full range of support services (P-Ex. I). Students are in mainstream classes with typically developing peers and they receive extensive services throughout the program (T. 67). In order to facilitate the development of the students’ academic skills they use an educational approach designed to enhance strengths and address academic weaknesses, that is individualized in both content and approach for alternative instructional environments, teaching strategies and materials (P-Ex. I-2).

During the 2021/22 school year, there were approximately 28 students in the special needs program (T. 67). All teachers at the Private School are trained to work with special education students but specifically the program includes specialists such as a guidance counselor, speech therapist, ABA consultant, reading specialist, and special education teacher (T. 68). Training consists of a two-week training at the end of August, six professional development days a year, biweekly employee meetings with training in educational strategies, weekly division meetings and department meetings (T. 68-69).

The Student began attending the Private School in Kindergarten (T. 69). During the 2021/22 school year the Student was in the [Redacted] grade and that year there was only one [Redacted] grade class with 12 students (T. 70, 73). The special needs program consisted of 1:1 pull-out teaching with the special education teacher; in a group of 3:1 also pulled out of class; and the special education teacher would push into the classroom (T. 76). Students were also provided with additional time at the end of the school day for additional tutoring instruction with the special education teacher (T. 77-78). The Student’s program included modifications and accommodations, working with special education teacher, speech language therapist, the guidance counselor and social skills training (T. 71). The Student was described as struggling with social interactions, asking for help and expressing her feelings (T. 71). The Student could become very shy and nervous if she was unclear on something, would not necessarily ask for help, and would become anxious (T. 71). The Student would also struggle with abstract items and reasoning, problem solving, and verbal and conceptual reasoning skills (T. 71). To address her deficits, the Student was provided with routines and repetition, weekly outlines in each core subject, charts, graphic organizers, step by step written directions, manipulatives, and 1:1 support from the special education teacher and/or guidance counselor to make sure she was organized for her day (T. 72). She also received modified homework, strategies for organization and the provision of concrete tasks (T. 72-73). The Private School also provided the Student with management supports such as frequent breaks, separate location for exams, preferential seating, extended time on her exams, outlines, review sheets, questions and directions read and reread, and alternative assignments (T. 86-87).

The Student also received, speech language therapy, and counseling both 1:1 and in a group of 3:1 (T. 81-82). The 1:1 counseling sessions focused on self-esteem, speaking up more, becoming more engaged and involved, making eye contact, and talking about socializing and issues in school (T. 82). The groups sessions focused on social issues, how to speak with peers, approach different situations, and to ask for help (T. 82). The goals were similar, but the activities were different (T. 82). In order to determine the related services, the Student is provided, the Private School reviews the Student’s documents, such as an IEP and evaluations, and they conduct their own assessments to determine if a service should be changed or added depending on their needs (T. 84).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student’s unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically and socially and emotionally. The Private School provides six progress reports per year and weekly communications regarding progress was shared with the Parent every Friday (T. 87-88). The Student performed well during the 2021/22 school year (T. 83). The Student has thrived and benefited from the small environment and could become overwhelmed and nervous and anxious in a larger environment (T. 88-89). She worked hard, was organized and completed all of her assignments with modifications in place (T. 83). The Student went up a grade level in reading (T. 95, 100-101). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. In contrast, the District ignored the Parent’s concerns and failed to communicate with the Parent after they expressed their concerns.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement. I have considered the Parent’s other requests for relief in the Due Process Complaint, and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2021/22 school year.

SO ORDERED

DATED: October 28, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

District Exbibits

NONE

Parent Exbibits

Ex. Description Date Pages

A Due Process Complaint 2/15/22 8

B Ten Day Notice 8/24/21 3

C Amended Ten Day Notice 8/27/21 4

D Pendency Program 2/18/22 2

E Private School Contract 9/13/21 4

F Private School Schedule 2021/22 1

G Affidavit of Payment 1/10/22 1

H Proof of Payment 4/21-11/21 1

I Private School Program Description 2021/22 8

J Neuropsychological evaluation 4/2021 15

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.