New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 225912

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: April 18, 2022

Hearing Dates: October 28, 2022

Actual Record Close Date: November 16, 2022

Decision Date: November 30, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], Principal

[Redacted], Chief Enrollment and Strategy Officer

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about April 18, 2022, regarding the 2020/21 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 2020/21 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on April 21, 2022. A prehearing conference was held on June 28, 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 October 28, 2022 and was completed on that day (See, Transcripts).^[2] The District did not present a prong I case. The Parent presented exhibits^[3] and three witnesses. The record closed on November 16, 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 2020/21 school year (P-Ex. A-2). The Student is diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”); Generalized Anxiety; Social Anxiety Disorder; and Specific Learning Disorders in reading, reading comprehension, math, and written expression (P-Ex. A-2; C-18). The Student was described as struggling a great deal due to her comprehension and attention issues and was under a tremendous amount of stress at her previous school (T. 101-102).

The Student started attending the Private School in January 2021 (T. 91). The Parent sent a ten day letter to the District on January 15, 2021 (P-Ex. B). In the letter, the Parent informed the District that no IEP meeting had been held for the 2021/22 school year and that since they had not heard from the CSE since 2018, they would arrange for a private neuropsychological evaluation (P-Ex. B; C; T. 100). The Parent also informed the District that the Student would be unilaterally placed at the Private School for the remainder of the 2020/21 school year (P-Ex. B).

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 2020/21 school year. The District failed to provide any evidence as to why an IEP meeting was not held prior or to the 2020/21 school year. Therefore, I find that the District did not provide the Student with FAPE for the 2020/21 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 2020/21 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

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

The Private School is a 10-month New York State Regents approved and accredited not-for-profit special education day school that provides specialized academic instruction for students with learning differences in a structured and supportive learning environment (P-Ex. L-2). The school serves students with language-based learning disabilities that require a smaller, more individualized and supportive environment, that may also have attentional and executive functioning deficits (P-Ex. L-2). There were 385 students total at the Private School, with 141 students at the high school, during the 2020/21 school year (P-Ex. L-3; T. 53). The ratio during that year was a 13:1:1 (P-Ex. L-3). The Private School provides a supportive, structured and nurturing environment where they develop a students’ academic and organizational skills (P-Ex. L-4). Skill acquisition and academic remediation are priorities, and they use modified materials and specialized instruction targeted and customized to each student (P-Ex. L-4). The school psychologist, social workers and speech therapists work collaboratively with classroom teachers and administration using a push-in and/or pullout model (P-Ex. L-4).

The Principal from the Private School testified regarding the Private School and the Student (T. 38). He is responsible for hiring, supervising faculty and staff, and development of the curriculum (T. 40). He testified that teachers are certified, or all trained in-house to work with student with learning disabilities (T. 43-44).

The Student started at the Private School in January of the 2020/21 school year (T. 41). When she entered the Private School, the Student presented with a variety of learning disabilities and mental health challenges (T. 41). Due to COVID, the 2020/21 program was different but the school still provided a tremendous amount of supports that were built into the curriculum and the daily teaching (P-Ex. K; T. 42). They had hybrid learning program that consisted of three days in school and two days remote (P-Ex. L-4; T. 47, 68-69). The supports included frequent teacher check ins, instruction broken down into manageable chunks, graphic organizers, and scaffolding (T. 43). The information was presented in multisensory ways, with preferential seating, extended test time, and use of technology (T. 43). Students have their own computers with technology like snap and read, text to speech and reading can be digitized (T. 43). They also reduce the volume of work and pacing is slower to give students time to process information (T. 44). The Student’s schedule was also unique in that it allowed for a zero period where the student could have access to teachers before the day starts and a flex period after lunch (T. 48).

The Speech and language team worked with the teachers and push into the classroom and work mainly on writing, reading comprehension strategies, editing and provided the teacher with tools and techniques (P-Ex. L-5; T. 45-46). The Student received the speech services during the 2020/21 school year (T. 46). Speech would push into classrooms two times a week (T. 47).

The Student struggled in her writing; with organization or getting started (T. 49). Time was spent setting up supports and building a base for the writing process that included outlining, graphic organizers, sentence starters, working 1:1 with editing (T. 50). In math, the Student was placed in a smaller group with 8 students and two teachers (T. 52). When she first began at the Private School, the Student was placed in the lowest group based on her significant struggles (T. 52). The Student was provided with a hands-on approach at a slower pace, and they reviewed concepts multiple times and in different modalities, used manipulatives, and 1:1 attention (T. 52-53). The Student was below grade level in reading and to address that she was provided with technology, which would read back to the student and address decoding and comprehension (T. 62-63). To address her social and general anxiety disorders, they provided a health and human relations class once per week which is a group counseling session for six students to process things happening at home and school (T. 53). The Student was also seen 1:1, once per week and as needed for extra support (T. 54). The Student was hospitalized for mental health concerns during the 2020/21 school year and the social worker from the Private School connected with the outside provider to address her issues throughout the course of the year (T. 55).

To address her attention deficits, they provided redirection, refocusing, prompts, breaks to reset or focus, classes were 12:1:1 or smaller and work was presented in manageable ways with chunking and scaffolding (T. 56). They provided multi-modal teaching which included a five minute lecture on a topic, then breaking into an activity and then changing the activity to be constantly moving (T. 57, 72-73). To address her executive functioning struggles they broke down assignments into smaller tasks, provided directions in written and oral form, multi-step directions provided, her assignments were posted on google classroom, and the speech pathologist would work with her (T. 58-59). The Student also had an advisor who met with the student at least once per week to help organize and prioritize work (T. 61).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, however, as a result of the special education methods and supports provided, the Student made progress, academically and emotionally (T. 63-64, 80). She worked hard and her grades reflected her hard work (P-Ex. G; T. 64). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2020/21 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 create an IEP for the Student for the 2020/21 school year.

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 2020/21 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 during the 2020/21 school year.

SO ORDERED

DATED: November 30, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

District Exhibits

NONE

Parent Exhibits

Ex. Description Date Pages

A Impartial hearing request 4/18/22 10

B Ten-day notice 1/15/21 2

C Neuropsychological evaluation 3/25/21 30

D School Contract 1/24/21 5

E Tuition Affidavit 4/19/21 1

F Proof of payment various 3

G Grade and attendance 6/24/21 1

H Educational Update 3/17/21 2

I Student Schedule 11/16/21 1

J School Description 2020/21 1

K Distance Learning Description undated 4

L Private School Affidavit 10/21/22 10

M Medical Visit Summary 2/26/21 1

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.