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CASE NUMBER: 572554 - NYC: 226112
FINDINGS OF FACT AND DECISION
Student’s Name 1: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: April 29, 2022
Date(s) of Hearing: February 3, 2023, March [1], 2023
Actual Record Closed Date: March 26, 2023
Date of Decision: April 8, 2023
Date of Distribution if Different than Decision Date: Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 3, 2023
For the Student:
[REDACTED], Attorney, [REDACTED]
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 1, 2023
For the Student:
[REDACTED], Attorney, [REDACTED]
[REDACTED], Parent Student
[REDACTED], Speech Language Pathologist, [REDACTED]
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated April 29, 2022. (Ex. P-A) [2]. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on June 23, 2022. A pre-hearing conference was held on June 30, 2022. Status conferences were held on July 26, 2022, September 6, 2022, October 3, 2022, November 2, 2022, November 15, 2022, December 8, 2022 and January 5, 2023 at the request of the parties as they engaged in the settlement process. Seven orders of extension were granted at the request of the parties as they attempted to settle the matter. Two final extensions were granted based upon the availability of witnesses and receipt and review of transcripts. Hearing dates were held on February 3, 2023 and March 1, 2023.
The District entered into evidence exhibits 1-3. The Parent entered into evidence exhibits A-M.[3] The District did not present a case or call any witnesses to testify on behalf of the District (T:66). Two witnesses testified on behalf of the Parents, including the Student’s mother. Both parties made oral closing statements on the record. The record was closed on March 26, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is a [REDACTED] year old boy classified with a learning disability by the District’s Committee on Special Education (“CSE”). This case involves the 2020-21 school year. During that school year, the Student was unilaterally placed by the Parents at the [REDACTED] (hereinafter referred to as “the private school”).
The CSE met on May 1, 2020 to develop an Individualized Education Program (“IEP”) for the 2020-21 school year. The CSE recommended a 12:1:1 special class for English, Math, Science and Social Studies and the related services of individual occupational therapy and individual and group speech language therapy. (Ex. D-2-10-11). The Parents disagreed with the program.
ISSUES
In challenging the 2020-21 school year IEP as inappropriate and insufficient, the Parents raised both procedural and substantive challenges. Their claims include:
• Failure to provide the Parents with the District’s psychoeducational evaluation;
• Failure to evaluate the Student in all areas of disability;
• Failure to consider recommendations of private school staff;
• Failure to consider Parents’ requests;
• Failure to consider placement at the private school or in a similar program;
• The District’s 12:1:1 class could not implement the management needs on the IEP;
• The District’s 12:1:1 class was too large;
• The Student required a more intensive program;
• The IEP did not support his transition to the 12:1:1 program;
• The goals are insufficient, vague, not objectively measurable and lack short-term objectives;
• The District failed to recommend parent counseling and training or supports for school personnel;
• The CSE lacked a regular education member;
• The CSE failed to consider the full continuum of services;
• The District failed to offer sufficient supports and services;
• The IEP is reflective of impermissible predetermination.
The Parents argue further that the placement of the Student at the private school was appropriate and that there are no equitable considerations which would preclude or diminish an award of tuition, costs and expenses at the private school (Ex. P-A; T:123-28). The Parents seek reimbursement, not a direct payment (T:115).
As stated above, the District chose not to defend its IEP with witnesses or testimonial evidence and made no argument in defense of the IEP in its closing statement (T:66, 117-120). The District instead argued that the Student did not make progress, and the private school showed little evidence as to how it improved or even maintained his ability to focus (T:118). The record lacks evidence of an occupational therapy report, psychological evaluation or functional behavioral assessment from the private school. There is no evidence in the record how the Student’s emotional needs were met or that there were good peer models in his classes. The private school was not accredited and only one of the Student’s teachers was certified in special education (T:119-20). Finally, the District asked that any award of tuition be reduced by 28.5% to reflect the portion of his day spent in a nonsecular curriculum (T:121-22).
FINDINGS OF FACT
The District conducted a psychoeducational evaluation of the Student on February 11, 2019 when he was in the fifth grade. All of his composite scores on the Wechsler Intelligence Scale for Children (WISC – IV) were in the average range, except for working memory which was in the high average range. The Student’s FSIQ of 105 placed him in the average range overall for intelligence. On a test of academic achievement, he presented with delays in reading comprehension and sentence composition, including grammar. Math was a strength for the Student.
The CSE met on May 1, 2020, to develop an IEP for the 2020-21 school year. The Student’s mother attended, along with a school psychologist from the private school. The CSE recommended a 12:1:1 special class for English, Math, Science and Social Studies and the related services of individual occupational therapy and individual and group speech language therapy. (Ex. D-2-10-11).
On August 12, 2020, the Parents wrote a letter to the CSE stating that they had not yet received a school placement letter, and that they were sending the Student to the private school and reserving the right to seek payment of tuition, costs and expenses from the District (Ex. PC). On August 23, 2020, the Parents wrote another letter to the CSE reiterating that they had not received a school placement letter and would be placing the Student at the private school (Ex. P-D). On September 8, 2020, the Parents signed a tuition contract with the private school for tuition in the amount of $72,750 (Ex. P-J) [4]. On November 6, 2020, the Parents wrote to the CSE advising that the proposed placement at [REDACTED] did not have an available spot for the Student (Ex. P-E). The Parents did not receive a substantive response from the District to any of their letters (T:113-14).
[REDACTED], a licensed speech language pathologist and certified general education teacher testified via affidavit that she is the Language Curriculum Coordinator at the private school and has worked with student with special needs for over 30 years (Ex. P-M). The private school is a non-graded, not-for-profit co-educational school for students aged 5 to 15 years old with language-based learning disabilities. All students have IEPs or are eligible for IEPs. The curriculum is based on New York State Common Core standards. Teachers are trained in the Orton Gillingham approach but utilize other methodologies as well (Ex. P-M-2).
The Student began at the private school during the 2015-16 school year. [REDACTED] provided the Student with speech language services during the 2017-18, 2018-19, 2019-20 and 2020-21 school years. During 2020-21, she regularly collaborated with his teachers and therapists, reviewed his work and observed him in class, recess and lunch (Ex. P-M-3). At the beginning of the 2020-21 school year, she administered the Clinical Evaluation of Language Fundamentals -5th edition (“CELF-5”) which showed his widely scattered language skills ranging from the 16th to 99th percentile. His lowest score was in Understanding Spoken Paragraphs. His core language score was in the average range, but his Expressive Language Index was in the 13th percentile placing him in the borderline/marginal/at-risk range. She testified that his verbal reasoning skills and executive functioning skills were also areas of challenge (Ex P-M-4). During lessons, he often struggled with engagement, sustained focus and attention, particularly with reading or writing tasks (Ex. P-M-5).
He had difficulty with metalinguistic skills, short term memory, work retrieval, attention/focus, dysregulation and following directions. His metacognitive facilities were not age-appropriate, and his pragmatic/social communication was marked by inflexible thinking, indifference to non-verbal communications and an inability to express his emotions adequately. He also had difficulty with verbal reasoning skills. He struggled to complete work independently and/or misinterpreted his assignments (Ex. P-M-5). His scores on the GORT-5 were in the average range (Ex. P-M-6).
On occupational therapy assessments at the beginning of the 2020-21 school year, the Student’s demonstrated motor deficits included sensory-seeking behaviors, visual motor deficits, diminished hand strength, neuromuscular weakness, weak core strength, poor gross motor coordination, difficulty with following multi-step direction, poor executive functioning skills and an inability to maintain attention and focus (Ex. P-M-6).
The Student was placed in a cohort of 8 students within 2 years of age and with similar learning challenges. His instructional day was from 8:40 am to 4:05 pm Monday through Thursday and 8:40 am to 12:05 pm on Fridays (Ex. P-G). His teachers used the Orton-Gillingham method successfully for teaching reading in both English and Hebrew (Ex. P-M-6). One of his teachers, [REDACTED], who taught Writing/History and ELA, was certified in special education (T:83). The Student had an individualized behavior plan, individualized sensory diet and a personalized writing program (Ex. P-M-7).
His daily schedule included: Critical Thinking, Text Analysis, Hebrew; Sensory Diet; Math; Recess; Text Analysis, Hebrew; OG Reading; Lunch; Writing/Social Studies; Physical Education; ELA; Recess; Hebrew Reading; Sensory Diet; and Pack up/Dismissal (Ex. P-G). He also received the related services of occupational therapy 3 x 30 minutes 1:1, speech 2 x 30 1:1, counseling 1 x 30 minutes 1:1 and counseling 1 x 30 in a social skills group (Ex. P-M-12).
[REDACTED] testified to the Student’s progress in vocabulary, perspective taking, reasoning skills, math, social skills, grammar, reading and auditory comprehension and writing paragraphs (Ex. P-M-8-12). His progress reports were introduced into the record as Exs. P-H and P-I. His end of year reports reflect progress in reading including building schema, reading for meaning and building stronger critical thinking skills with the assistance of explicit, studentcentered instruction. In ELA, he progressed in story mapping, visualization and comparing and contrasting with the assistance of prompting, visual cues and guided and independent practice (Ex. P-I-1). In writing, his work exhibited his improved ability to work through frustration and progress by applying learned concepts and skills. With minimal support he was able to write an introduction, body and conclusion of a paragraph (Ex. P-1-2). In math with the assistance of spiraling information, visual aids, and a small group setting, he furthered his mathematic knowledge of several concepts and procedures including, writing and evaluating one-step algebraic equations, equations and inequalities and is able to use his math knowledge to solve real world word problems (Ex. P-I-3).
In speech therapy he demonstrated growth in articulation, exhibited fewer syntactical errors in oral sentences and improved critical thinking skills (Ex. P-M-13). In occupational therapy, he made progress in improving his writing skills, increasing wrist extension, better controlling his fine motor movement, standing balance, reducing sensory seeking and impulsive behavior, increasing self-control and focus and following multi-step directions. (Ex. P-M-13). Although he continued to have issues with attention, focus and self-motivation, he developed greater self-awareness and become more responsible in executive functioning, seeing the perspective of others and taking responsibility for his actions (Ex. P-I-4).
The Parent testified that the Student’s time at the private school was amazing (T:100). She saw improvement in his learning and ability to sit and focus for longer periods of time (T:107). She felt it was appropriate and met all his needs. He socialized with other students and played sports with them (T:108).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (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 comprehensive written IEP (34 C.F.R. § 300.13). 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 reasonably calculated to enable the student to receive educational benefits Bd. 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). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, 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 or payment for services 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)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). It is well settled that 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]), 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]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parent in order to meet her burden must establish by a preponderance of the evidence, that the unilateral placement was “proper under the Act” (Carter, 510 U.S. at 12, 15) and provided “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]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. 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 private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“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.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement.
ANALYSIS
The Parent’s testimony that the District failed to offer the Student a public school placement with available space was uncontroverted. In neither its opening nor closing statement did the District make any arguments in support of the IEP and its recommendations. Based upon the District’s failure to present any defense of its 2020-21 IEP and/or a description as to how it would meet the Student’s special education needs, I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s recognized failure to meet its burden, I do not find it necessary to consider all of the specific challenges to the IEP raised in the DPC. [5]
Turning to the private school program selected by the Parents, based upon a thorough review of the testimony and evidence, I find the Parents met their burden that the private school provided the Student with specific instruction to meet his unique special education needs during the 2020-21 school year. The uncontroverted testimony reflects that the private school provided him with specific strategies to address his difficulties with executive functioning, reading comprehension, writing and motor weaknesses.
The District in its closing argument cites to a lack of evaluations in the record including an occupational therapy evaluation, psychological evaluation and a functional behavioral assessment. However, I remind the District that it is their obligation to insure that the Student has been evaluated in all areas of suspected disability. The only evaluation presented by the District was the 2019 psychoeducational. The testimony of [REDACTED] did, however, indicate that at the beginning of the 2020-21 school year, the private school administered speech language, reading and motor testing, both formally and informally. He was also observed in the classroom and an individualized behavior plan and sensory diet was utilized (Ex. P-M-3-6,7). I find that the private school had a thorough understanding of the Student’s needs during the 2020-21 school year.
I have considered the District’s argument that the Student’s lack of focus impacted his rate of learning. However, his progress reports list strategies utilized to maintain his focus: visualizing and redirection (Ex. P-H-1), prompting and use of multiple modalities (Ex. P-H-2), spiraling of information taught, visual aids, direct and systemic instruction, positive reinforcement (Ex. P-H-3), prompting and visual cues (Ex. P-I-1), redirection and refocusing (Ex. P-I-2), color coding, activation of prior knowledge and tasks broken down into small increments (Ex. P-I-3). While certain measures on his report cards remain unchanged or show a slight decrease, overall, his report cards show growth over the 2020-21 school year. I find that the private school was an appropriate unilateral placement.
The District argues that any award of tuition reimbursement should be reduced by 28.5% to account for the Student’s time spent in nonsecular instruction. The Student’s schedule reflects that he participated in three Hebrew-related classes: (1) Critical Thinking, Text Analysis, Hebrew taught by a rabbi without any formal degree in education, (2) Text Analysis, Hebrew and (3) Hebrew reading. The Parents argue that his Hebrew studies were just a vehicle to work on his academic skills and that just 20% of his time in the Critical Thinking class was religious in nature. Given a review of the record and the course descriptions, I find that the tuition award should be reduced by 10% for the amount of time the Student has spent in nonsecular studies and coursework. The remainder of any equitable considerations weigh in favor of the Parents.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDERED that the District shall reimburse the Parent for tuition paid in the amount of sixty-five thousand four hundred seventy five dollars ($65,475.00) upon presentation of proof of payment.
SO ORDERED.
DATED: April 8, 2023
Lisa Rusk
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
P-A. Demand for Due Process 04 Pages April 29, 2022
P-B. Individualized Education Program (IEP) 15 Pages [REDACTED] May 1, 2020
P-C. Letter from Parents to CSE 01 Page August 12, 2020
P-D. Letter from Parents to CSE 01 Page August 23, 2020
P-E. Letter from Parents to CSE 01 Page November 6, 2020
P-F. 2020-2021 Remote Learning Plan [REDACTED] 02 pages
P-G. Student’s Daily Schedule 01 Page [REDACTED] 2020-2021
P-H. September - Fall Progress Report 04 Pages December, 2020 [REDACTED]
P-I. January - Spring Progress Report 04 Pages June, 2021 [REDACTED]
P-J. Tuition Contract 02 Pages [REDACTED] September 8, 2020
P-K. Tuition Affirmation 01 Page By: [REDACTED] July 26, 2022
P-L. Final Attendance 01 Page 2020-2021
P-M. February 13, 2023 Affirmation of [REDACTED] 16 pages
DOE’S EXHIBITS
1. Due Process Complaint 4/29/22 5 pages DOE
2. IEP 5/01/20 18 pages DOE
3. Psychoeducational Evaluation Report 2/11/19 9 pages DOE
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] To date, the Parent have not made any payments toward the tuition as they currently cannot afford to (T:109).
[5] Aside from the lack of an available placement, one example of the IEP’s inappropriateness is that it fails to set forth a description of the Student’s speech language or motor needs (Ex. D-2-3-4).