New York City Department of Education, Impartial Hearing Decision

I. Introduction and Procedural History

On June 13, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by Parent ("Parent" or "Parents") alleging a denial of a Free and Appropriate Public Education ("FAPE"). A pre-hearing conference was held on January 3, 2023, status conferences were held on March 20, 2023 and April 28, 2023, and hearings were held on February 6, 2023, May 11, 2023 and June 12, 2023. The REDACTED ("REDACTED") was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective June 12, 2023.

II. Background

Parent filed a due process complaint on July 9, 2022, alleged a denial of Student's right to a FAPE for the 2020-2021 school year, and requesting, as relief, tuition at the REDACTED ("REDACTED"). There were three days of hearing. The REDACTED did not put on a case, and Parent had two witnesses, both of whom provided direct testimony by affidavit and were available for cross-examination.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

An IEP meeting was held on or about March 18, 2020. (Exh. B). The REDACTED did not defend the IEP or otherwise argue that the recommendations were appropriate. (Tr. 36). Therefore, no further discussion is necessary.

Student attended the REDACTED for the 2020-2021 school year. The REDACTED is a small program of approximately thirty students placed in five classes. The students are diagnosed with learning disabilities, speech and language delays, autism and/or behavioral/social/emotional issues. (Exh. D and Exh. S, page 1). Related services are available, including occupational therapy, speech and language therapy and counseling. The related service providers collaborate with the classroom teacher. Pre-vocational training is also available. (Exh. S, page 2). A remote learning plan was developed to address the potential need for virtual learning during the pandemic. (Exh. I).

Student was in a classroom with six students, all with similar academic and social/emotional functioning. (Exh. S, page 2). There was one teacher and two assistants. (Exh. S, page 2). Student's schedule included religious studies and vocational skills, science, math, language arts, social studies, computers and social skills. (Exh. H and Exh. S, pages 2-3). Professional development is provided to all staff and staff is supervised. (Exh. S, page 3). Formal case conferences are held throughout the year, as well as informal communication among teachers, providers and supervisors. (Exh. S, page 3).

Student presented with weak academic skills, difficulty with retaining and memorizing new material, as well as deficits in receptive, expressive and pragmatic language skills. She had difficulties with processing, fine motor skills, motor planning, visual perceptual skills and social and emotional skills. (Exh. S, page 3). An Educational Plan was developed for Student to address her academic deficits. (Exh. J and Exh. K). Educational Plans were also developed for related services, including counseling, occupational therapy and speech therapy and these related services were provided by licensed/certified providers. (Exh. M, Exh. O, Exh. Q and Exh. S, page 4). The plans and goals were developed and individualized using assessments and review of prior progress reports. (Exh. S, page 5). Student also received pre-vocational training. (Exh. S, page 4). Student only missed three days of school during the 2020-2021 school year. (Exh. F).

Student made progress during the 2020-2021 school year. Student made progress in her academic subjects. (Exh. L). She also made progress in her related services. (Exh. N, Exh. P and Exh. R). At the beginning of the 2020-2021 school year, Student was reading on the fourthgrade level for decoding and third grade level for reading comprehension; by the end of the school year, Student had progressed to a mid-fifth grade level for decoding and mid-third grade level for comprehension. Her math skills started at a third-grade level and progressed to a midthird grade level. Her writing skills similarly improved from a second-grade level to a beginning third grade level, and her social emotional skills improved. (Exh. S, page 4).

Parent signed a tuition contract for the 2020-2021 school year on or about September 8, 2020; the contract contained an addendum for related services. (Exh. E). The contract provided for withdrawal if an appropriate placement was located. (Exh. E and Exh. T, page 2). Parent was financially unable to contribute towards tuition and is seeking full funding. (Exh. G and Exh. T, page 1).

Parent sent a Ten-Day Notice on November 25, 2020. (Exh. C and Exh. T, page 1). There is nothing in the record to indicate a response. Parent filed due process complaint on April 7, 2022. (Exh. A).

FAPE

The IDEA was enacted to "to ensure that all children with disabilities have available to them a free appropriate public education" ("FAPE") and to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student's IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order "to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not put on a case. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents' choice turns on whether the chosen school "is reasonably calculated to enable the child to receive educational benefits." Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is "one that is 'likely to produce progress, not regression.'" Id. (quoting Walczak, 142 F.3d at 130). The parents' choice must be "appropriate," "not . . . perfect." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement "need not meet state education standards or requirements." Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether "[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: "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 child with disabilities, supported by such services as are necessary to permit the child to benefit from instruction." the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that the REDACTED understands Student's unique educational needs and designed a program to address these needs. The school testified that approximately 9% of Student's schedule involves religious instruction. (Tr. 41). Parent acknowledges that she is not entitled to reimbursement for the religious portion of Student's tuition. (Tr. 43). Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for the secular portion (91%) of the tuition, as well as 100% of the cost of related services at her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant 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"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of the secular portion of tuition for the 2021-2022 school year.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021 school year.

2. The REDACTED shall directly fund related services and the secular portion of tuition at the REDACTED for the 2020-2021 school year within thirty days of receipt of this Findings of Fact and Decision.

Dated: June 22, 2023

AUDREY DANIEL, ESQ.

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 ADMITTED AT HEARING

REDACTED

None

Parent

DATE DOCUMENTS PAGES

P-A. Demand for Due Process 05 Pages April 7, 2022

P-B. Individualized Education Program 14 Pages REDACTED March 18, 2020

P-C. Letter from Parent to CSE 04 Pages (with Fax Confirmation) November 25, 2020

P-D. Program Description 02 Pages The REDACTED Undated

P-E. Tuition Contract 01 Page The REDACTED 2020-2021

P-F. Attendance Record 01 Page The REDACTED February 6, 2023

P-G. Tuition Affirmation 01 Page By: REDACTED The REDACTED February 6, 2023

P-H. Student's Daily Schedule 01 Page The REDACTED 2020-2021

P-I. 2020-2021 Remote Learning Services Plan The REDACTED 02 pages

P-J. – Student's Educational Plan (ELA and 07 Pages History/Geography) June 2021 By REDACTED The REDACTED October 20, 2020

P-K. - Student's Educational Plan (Science and Math) 03 Pages June 2021 By: REDACTED The REDACTED October 2020 14 pages

P-L. Teacher Progress Report 04 Pages By: REDACTED The REDACTED February 2021

P-M. – Student's Counseling Educational Plan 04 Pages October 2020

June 2021 By: REDACTED, LCSWR

The REDACTED

P-N January 2021 Progress Update – Counseling 01 Page

By: REDACTED, LCSWR

The REDACTED

P-O October 2020 – Student's Occupational Therapy Educational Plan 02 Pages

June 2021 By: REDACTED, OTR/L

The REDACTED

P-P February 2021 Occupational Therapy Progress Update 01 Page

By REDACTED, OTR/L

The REDACTED

P-Q October 2020 – Student's Speech/Language Educational Plan 02 Pages

June 2021 By: REDACTED, MS, CCC-SLP

The REDACTED

P-R February 2021 Speech Progress Update 01 Page

By: REDACTED, MS, CCC-SLP

The REDACTED

P-S June 7, 2023 Affirmation of REDACTED 06 Pages P-T June 6, 2023 Affirmation of REDACTED 02 Pages

Impartial Hearing Officer

None.