New York City Department of Education, Impartial Hearing Decision

NYSED # 572891 / NYC # 226294

FINDINGS OF FACT AND DECISION

Case Number: 226294

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 06/30/2022 Pre-Hearing Conference

07/11/2022

07/13/2022

07/18/2022

Actual Record Close Date: 08/09/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/30/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], J.D., Advocate

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/11/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], J.D., Advocate

[REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/13/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], J.D., Advocate

[REDACTED], ESQ., Attorney

[REDACTED], Supervisor,

[REDACTED] Program

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/18/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], J.D., Advocate

[REDACTED], Parent

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Ex. Document Date(s) Page(s)

Entered 06/30/2022

A Due Process Complaint (DPC) and Notice of Appearance 05/09/2022 7

Entered 07/11/2022

B Duplicate Excluded

C Student Contract, Program Description, and Curriculum 08/17/2021 18

D Affirmations regarding Tuition

Breakdown and Payments 2021-2022 2

E Curriculum Schedule 2021-2022 1

F Student Attendance 2021-2022 1

H Ten Day Notice from Parent to DOE 08/16/2021 2

Entered 07/13/2022

G Cover Page

Assessments, Plans, and Reports Various 1 (G-1)

G-1 Functional Behavior Assessment (FBA) 08/26/2021 6 (G-2-G-7)

G-2 Treatment Plan 09/09/2021 3 (G-8-G-10)

G-3 Assessment of Current Functioning undated 1 (G-11)

G-4 Behavior Intervention Plan (BIP) 09/01/2021 8 (G-12-G-19)

G-5 Teacher Progress Report 12/2021 5 (G-20-G-24)

G-6 School Counselor Report 12/2021-01/2022 5 (G-25-G-29)

G-7 Teacher Progress Report 03/2022 5 (G-30-G-34)

G-8 Teacher Progress Report 06/2022 5 (G-35-G-39)

G-9 Report Card 2021-2022 9 (G-40-G-49)

HEARING OFFICER DOCUMENTS

Entered 06/30/2022

I Notice of appointment, 06/27/2022, four pages

DEPARTMENT OF EDUCATION

Ex. Document Date(s) Page(s)

Entered 07/11/2022

1 Individualized Education Program (IEP) 6/29/2021 24

2 IEP Attendance Page 6/29/2021 1

3 IEP Meeting Minutes 6/12/2021 2

4 2020-2021 Semester 1 Report Card 2020-2021 2 5 Speech-Language Therapy (SLT)

Progress Report 2021-2021 4/26/2021 2

6 Teacher Report 2/2021 2

7 Level I Vocational Interview 6/29/2021 2

8 School Location Letter 8/18/2021 2

9 Prior Written Notice 8/18/2021 4

INTRODUCTION

On 06/24/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On 06/30/2021, a Pre Hearing Conference was conducted.

Hearing commenced on 07/11/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

The DOE Representative appeared, on 07/11/2022, and rested upon the submitted documents. (T 20)

Parent presented its case at Hearing, which occurred on, 07/13/2022 and 07/18/2022.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a relating to the '21/'22 school year, which was the Student’s 9th grade school year. Parent alleges a failure by the Department of Education (DOE) to offer a free appropriate public education (FAPE), and is seeking funding for the placement at the unilateral placement, [REDACTED] (UP). (T 20, Ex A)

THE POSITION OF EACH PARTY

The DOE Representative appeared, on 07/11/2022, and rested upon the submitted documents. (T 20)

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent contends the IEP, of 06/29/2021, does not offer the Student a FAPE. (Ex A 1 & Ex 1)

Parent sets forth position at Hearing, via Testimony and Documentary Evidence, considered below.

[REDACTED], Supervisor, [REDACTED] Program

Testimony included:

• • A review of Witness qualifications (T 33-34);
• • Witness is supervisor at the UP, whose responsibilities, during the 21-22 school year include: “oversight of individual students, their needs, the alignment of their individual plan with the curriculum as a whole, and then their progress, through data collection and through communication with their providers, making sure that each individual student (T 34) had a plan that made sense for them based on their behavioral, academic, social needs, as well as aligned with modifications and accommodations to the general Common Core curriculum…And then my responsibility was to continuously coordinate with their staff and their plan, and monitor the progress, or lack thereof, and adjust it throughout the school year in order to make sure that the individual students had a full grade level of progress, which we call meaningful progress, throughout the school year” (T 35);
• • The UP is a school: housed in a general education school; consisted of 9th, 10th, and 11th grade; typical UP students were language delayed and behaviorally challenged; students are physically enabled; curriculum is aligned towards the Common Core general education curriculum; the UP will modify and accommodate the curriculum towards individual student needs (T 35-36); the UP program is aligned with ABA methodology; program is proactive as opposed to reactive; and opportunities are present for interaction with mainstream students (T 36);
• • Witness observed the Student during the 21-22 school year, and coordinated with Student teachers, overseeing progress through data collection procedures, overseeing Student’s individual plan, set up the individual plan with Student’s teachers, and made sure there was progress in academic, social, emotional and behavioral areas (T 36-37);
• • For the 21-22 school year, the Student attended the 9th grade, at the UP, attending a class of six total students, all with special needs, and had opportunities to interact with typically developing peers (T 36-37);
• • Student class, at all times, had a teacher and an assistant (T 38);
• • Witness detailed Student behavioral challenges, which affected his learning and academic environment (T 38-39);
• • Witness detailed Student social emotional challenges, which included communication deficiencies, which impacted the Student socially (T 39-40);
• • Witness describes Student academic challenges:
• • academically, he was definitely behind in many areas;
• • lack of language comprehension, language skills, delay in language communication;
• • being able to adapt to the classroom, transition abilities, retaining information, you know, processing information, listening to group information, following group instructions, all those were far behind grade level;
• • great discrepancy between his decode ability and his comprehension;
• • reading comprehension, Student when he began in 9th grade, was somewhere in the beginning of 4th grade level for reading comprehension, which is way below a 9th grade level;
• • ability to make connections, his ability to be able to restate a main idea those really fell very far below (T 41);
• • Writing was delayed at about a 5th grade level (T 42);
• • Math was delayed at about a7th grade level (T 42-43); and
• • Reading for comprehension (T 43-44);
• • Witness is familiar with the Student’s 06/29/2021 IEP, and believes it is not adequate to enable the Student to make meaningful progress (T 44);
• • Witness believes the IEP fails to address Student need in the area of inattentiveness and focus, which impact learning (T 44-45);
• • Witness believes the Student also needs a Behavior Intervention Plan (BIP) (T 44-45);
• • Witness believes the recommended Integrated Co-Teaching Class (ICT) would be to large to address Student need for support to attend and focus, and address behavioral challenges (T 45-46);
• • Witness concludes, regarding the DOE IEP: “And so the fact that it was not full time, did not give him the behavioral support, and with the class size, based on the fact that that goes directly against his -- you know, directly leads to his deficiencies, like his attention, focus, and ability to remain on task, his elopement, all of that could not have been addressed in a -- you know, in a co-teaching integrated classroom” (T 46);
• • For the 21-22 school year, the UP had a program to address the Student’s particular needs (T 46);
• • UP Program, for the Student, included:
• • A functional behavior assessment in order to address and target all those behaviors that were impacting and impeding on Student’s learning (T 46-47);
• • A BIP, which included not only the functions of Student’s behavior, how they're impacting, but also preventative methods, instructional techniques, communicative replacements, as well as reactive strategies in order to address the contingencies within the classroom and beyond that would really allow Student to achieve his function without those maladaptive, challenging behaviors that he was displaying;
• • A treatment plan, which was a all-inclusive plan, taking in, accepting all of those challenges, social and behavioral communication, language, as well as content area;
• • The UP created small incremental goals; we inputted those goals into the electronic platform called Rethink; and
• • Rethink is an electronic platform that is created for the New York City school system, and allows the alignment of ABA methodology and academic goals (T 47);
• • Witness reviewed the ways in which the Student progressed behaviorally, socially an emotionally (T 49:
• • Witness detailed how the Student progressed academically, in areas such as Reading (T 49-52);
• • Student received related services of: school counseling, SLT and OT (T 52-53);
• • Student received some religious instruction at the UP, noted as [REDACTED] on the class schedule (T 53);
• • Witness provided additional details regarding assembling the FBA, BIP, and treatment plan (T 62-63);
• • Witness detailed the Student risk of elopement: “So as a behavior analyst, the elopement risk of [REDACTED] was to escape tasks and demands, so there's two types of elopement, within the area and out of the area. [REDACTED] is a within the area elopement risk” (T 64);
• • Witness was asked to refer to Student’s Treatment Plan, Exhibit G-10, where it refers to a different name other that the Student, and the Witness identified this as a typographical error (T 69-70 & 71);
• • Witness continued to detail areas of Student progress in Math, Reading and Writing (T 74-77); and
• • No portion of the 21-2 school year was done via remote instruction. (T 86)

[REDACTED], Parent

Testimony included:

• • Witness is Student’s mother (T 96);
• • She asked for a DOE placement for the 21-22 school year, via fax to the DOE, on 08/16/2021 (T 96 & 101);
• • She did not receive a response;
• • She did not receive a copy of the New York State Procedural Safeguards Notice;
• • Income for the 21-22 year was about $22,000.00;
• • Witness received Medicaid during 2021 and 2022 (T 97);
• • Witness used to receive correspondence from the DOE, prior to Covid (T 98);
• • Witness husband is disabled and income is received via Social Security (T 101);
• • Witness does not work, as she takes care of her husband (T 101);
• • Witness decided to enroll the Student, at the UP, once a response was not received from the DOE, to the 08/16/2021 letter (T 102); and
• • Witness signed UP Contract, on 08/17/2021. (T 102-103, Ex C)

The DOE argues the Student UP is not reasonably calculated to enable the Student to receive an educational benefit. The DOE contends the Student, at the UP, regressed, in part due to requiring newly implemented services, such as ABA and a BIP. (T 109-110)

This argument assumes the Student has no need for the services in the 21-22 school year. Evidence supports the necessity of these services to enable the Student to benefit and have an opportunity to progress, during the 21-22 school year.

The DOE also lacks any recent evaluative material to indicate what the Student’s specific special education needs may be, beyond the information provided by the UP, and a Speech Progress Report. (Ex 5)

The Report includes reference to Student language delays, and need to focus and require redirection in the classroom. (Ex 5-1)

The DOE also contends equities do not support the Parent, since she signed a Contract with the UP so soon after sending the letter seeking placement. Thus, the DOE argues, the DOE was not afforded an opportunity to respond, and remedy any issue. (T 111-112)

As of the Hearing the DOE has still not evidenced as response to the Parent’s correspondence, of 08/16/2021. (Ex H)

The DOE also argues the Parent has not evidenced financial need (T 112); and if there is an Decision in the Parent’s favor, any Tuition award should be reduced by any portion associated with religious instruction. (T 113)

Parent argues that the DOE failed to offer a FAPE, for the 21-22 school year, as evidence is not produced to show the IEP and placement would enable the Student an opportunity to progress. (T 113-114)

Parent contends the DOE presents evidence of a School Location Letter, however, there is no proof of mailing, or Parent receipt offered by the DOE. (T 114, Ex 8 & 9)

Parent argues the Parent placed the Student, at the UP, in light of the DOE failure to offer and FAPE and failure to respond to the Parent’s correspondence. (T 115)

Parent continues that the UP is an appropriate Student placement, for the 21-22 school year, and the Parent is entitled to funding, reduced by any portion tied to religious education. (T 115-118)

Documentary Evidence, submitted at Hearing, is considered below:

1 Individualized Education Program (IEP) 6/29/2021

IEP confirms Student need for special education services, and includes:

• • Classification of Speech or Language Impairment (Ex 1-1);
• • IEP is developed for Student’s upcoming 9th grade school year (Ex 1-2);
• • Evaluation results from 01/08/2018, with scattered grade levels ranging from 2.0 up to 8.1 (Ex 1-2);
• • Student needs 1:1 assistance when completing multi step problems (Ex 1-3);
• • Student is noted not to need behavioral interventions, supports or other strategies to address behaviors that impede the Student’s learning or that of others (Ex 1-7);
• • Recommendation is made for a program that includes: an ICT class and Speech Language Therapy services (Ex 1-17); and
• • Student is noted to have an instructional / functional level of 5th grade for Reading and 7th grade for Math (Ex 1-22).

Notably the Evaluation results utilized in developing the IEP are over three years old,

Rendering them unreliable as a basis to develop a current and appropriate IEP.

Despite the Student being anticipated to be four years behind in Reading for the upcoming school year, the IEP contains only one goal for Reading. This Goal Reads:

[REDACTED] will demonstrate improvement in expressive/receptive reading comprehension skills by predicting possible outcomes in reading passages and articles, answering WH questions, making inferences, identifying cause and effect, sequencing events, and demonstrating critical thinking skills, given verbal and visual cueing (Ex 1-9)

This Goal contains no baseline upon which to determine progress, and contains reference to so many skills and variables it is presently impossible to decipher how this goal can be carried out, or even understood.

The recommended ICT services are defined as "specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students" in a classroom staffed "minimally" by a "special education teacher and a general education teacher" (8 NYCRR 200.6[g]). ICT services provide for the delivery of primary instruction to all of the students attending such a setting ("Continuum of Special Education Services for School-Age Students with Disabilities," at pp. 14-15, Office of Special Educ. [Nov. 2013], available at http://www.p12.nysed.gov/specialed/publications/policy/continuum-schoolage-revNov13.pdf).

The IEP does not evidence how the Student Reading delay is to be addressed in the recommended setting.

For the reasons set forth above I find the IEP to be unable to offer the Student a FAPE for the 21-22 school year.

4 2020-2021 Semester 1 Report Card 2020-2021

Student graded well during the first semester of the 20-21 school year.

5 Speech-Language Therapy (SLT) Progress Report 2021-2021 4/26/2021

Student areas of need, and goals are set forth. (Ex 5-1 & 5-2)

Report concludes the Student still requires SLT services. (Ex 5-2)

6 Teacher Report 2/2021

Student is reported to b doing well, with various supports, such as clear and concise instructions and constant repetition and review. (Ex 6-1)

Report outlines several areas of concern in area of Behavior/Social:

• Benefits from small class size and individualized attention

• Wants to do well

• Well-liked by his peers

• Seeks attention from adults and peers

• Easily distracted and short attention

• Impulsive

• Difficulty with constructive criticism

• Difficulty taking initiative and following through

• Difficulty following instructions (Ex 6-2)

7 Level I Vocational Interview 6/29/2021

Form consists of many unchecked boxes and is not fully completed.

8 School Location Letter 8/18/2021

Student School Location Letter is dated 08/18/2021.

Evidence is not presented to establish the Parent received the letter, in light of the allegations contained in the DPC, and Testimony at Hearing. (Ex a & H)

9 Prior Written Notice 8/18/2021

Student IEP services are outlined.

Letter references the old evaluation, of 01/31/2018. (Ex 9-2)

Evidence is not presented to establish the Parent received the letter, in light of the allegations contained in the DPC, and Testimony at Hearing. (Ex A & H)

Parent evidence, considered below, is found to be credible and supportive of the Parent position:

A Due Process Complaint (DPC) and Notice of Appearance 05/09/2022

Details Parent allegations and sought after relief.

Allegations include a failure of the 06/29/2021IEP to offer the Student a FAPE. Parent objects to the recommendations contained in the IEP. (Ex A -3, Ex 1)

Parent contends that the Student: “…can become frustrated and at times, needs assistance to appropriately express his frustration. He has difficulty with constructive criticism. He exhibits difficulty in taking initiative and following through. As a result of the foregoing, the Student required and requires and educational program that placed him in a special education class that offers individualized support, modified and simplified instruction and direction, repetition, review, modeling, prompting, social skills instruction, a behavioral plan, and speech-language therapy for the 2021-2022 school year.” (Ex A 4)

Parent argues the Student “is in need of a full time Special Education Program of up to 12 students, one teacher, and one assistant and the development and implementation of a behavioral plan to make meaningful academic and functional progress for the 2021-2022 school year.” (Ex A 4)

Parent seeks relief that includes:

• • an order for the Student to remain placed in UP in a classroom with up to 12 students, one teacher, and one assistant for the 2021-2022 school year, and for the Department of Education to directly fund tuition for such private placement, or to reimburse such tuition, if applicable; and
• • Allowance of prospective tuition payment for the 2021-2022 school year for the placement of the Student by the Parent in the program described above.

(Ex A 4)

C Student Contract, Program Description, and Curriculum 08/17/2021

Student 21-22 Tuition, at the UP, is evidenced to be $100,000.00. (Ex C 1)

Parent is obligated to payment under the Contract via signature. (Ex C 3)

UP Program general characteristics include:

• • established to educate children with special needs within their own cultural milieu;
• • services children with learning disabilities, behavioral issues and attention deficit disorders;
• • 9th grade students thrive within our warm, self-contained environment;
• • Students are divided into small, structured classes that range in size from five to ten students according to their abilities in order to provide students with individualized curricula geared toward their learning styles;
• • educates children with learning and behavioral disabilities in a comprehensive program. A modified general education curriculum gives students appropriate instruction with needed accommodations;
• • clearly structured, multisensory experiences in all subject areas;
• • We also incorporate direct teaching methods and skill instruction in small, sequential steps in all areas; academic and social;
• • Our program places emphasis on helping students learn how to learn and to find strategies that fit their learning style;
• • We create opportunities for students to interweave skills, instruction, and application in academic and social areas throughout the day, and provide a physical setting in which distractions are minimized and staying on task is promoted;
• • We ensure a low student teacher ratio in all school activities to assure prompt feedback and support and set personal, social and academic goals for each individual student; and
• • By employing an interdisciplinary approach in a nurturing environment, UP’s parents, students, teachers, specialists and administrators work together for the benefit of the child. (Ex C 4)

Details are provided regarding UP staff (Ex C 5); and Curriculum areas of Reading and Language Arts (Ex C 4); Reading (Ex C 5-6); Mathematics (Ex C 6); Science and Global History (Ex C 7); Vocational Skills (Ex C 7); and Counseling, SLT, OT (Ex C 7-8).

Student specific Curriculum is provided for areas of:

• • Mathematics (Ex C 9-10)
• • Global History (Ex C 10-14)
• • Biology Living Environment (Ex C 14-18)
• • English Language Arts (ELA), Reading, Vocabulary & Writing (Ex C 18)

D Affirmations regarding Tuition Breakdown and Payments 2021-2022 Student Tuition includes:

$95,000.00 Special Education Classroom and SLT 3/30: Group

$5,000.00 [REDACTED] Studied (Religious Studies) (T 53)

$100,000.00 Total (Ex D 1)

No part of the Tuition has been paid, leaving a balance of $100,000.00. (Ex D 2)

E Curriculum Schedule 2021-2022

Student 21-22 Academic and Related Service (SLT) Schedule.

F Student Attendance 2021-2022

Student is evidenced to have attended the UP, for the 21-22 school year.

H Ten Day Notice from Parent to DOE 08/16/2021

Parent provides notice to the District that a adequate placement, for the Student, for the 21-22 school year, has not yet been received; intent to unilaterally place the Student at the UP; and intent to seek Tuition funding from the District.

G-1 Functional Behavior Assessment 08/26/2021 (G-2-G-7)

UP conducts FBA which identifies Targeted Problem Behaviors (Ex G 2-3); collects data via observation, Parent and teacher (Ex G 3-5); and sets out Behavioral Supports and Interventions tried previously, and currently in place. (Ex G 5-6)

FBA recommends Replacement Behaviors as strategies for teaching new behaviors. (Ex G 7)

G-2 Treatment Plan 09/09/2021 (G-8-G-10)

Treatment Plan identifies problem areas, with Student specific challenges, which include: Communication, Socialization Skills, Maladaptive Behaviors, Cognitive Skills (Ex G 8, and Attention. (Ex G 9)

For example, in the area of Maladaptive Behaviors: Student “engages in a series of maladaptive behaviors. He struggles complete tasks when he is given a directive. He is prompt dependent and requires constant redirection and prompts during a task. [REDACTED] will act frivolous and disrupt others during classroom lessons. He disregards classroom procedures and does as he wants. [REDACTED] avoids undesired areas and leaves without obtaining permission. He gets out of his seat and walks away from the work area.” (Ex G 8)

Student academic Progress and Delays are detailed for: Mathematics (Ex G 9); and ELA. (Ex G 9-10)

G-3 Assessment of Current Functioning undated (G-11)

Areas of Student weakness are identified, which include: below normal adaptive functioning; and daily living skills.

Areas of strength are noted to be in area of communication and socialization.

G-4 Behavior Intervention Plan 09/01/2021 (G-12-G-19)

BIP details areas of Student problem behaviors, such as Lack of Joint Attention, Fidgeting/distractible, Disruptive Behavior, and Elopement. (Ex G 13)

Goals for Student and Parent are detailed to address Student behaviors. (Ex G 14-19)

G-5 Teacher Progress Report 12/2021 (G-20-G-24)

Student functioning, supports, and goals are detailed in areas that include:

• • Math:
• • Student functioning significantly below grade level (Ex G 20)
• • Supports include modeling, scaffolding, multi-sensory approach (Ex G 20)
• • Goals (Ex G 20-21)
• • Reading:
• • Student is functioning significantly below grade level
• • Goals are set forth (Ex G 21-22)
• • Supports include: visual maps, step by step instructions, repetition, prompting and modeling (Ex G 21-22)
• • Writing:
• • Student struggles to focus on the task at hand and writing is deficient
• • Goals are set forth (Ex G 22-23)
• • Supports include: mini-lesson direct instruction, modeling, and using peer’s writings (Ex G 22-23)
• • Social Emotional Functioning:
• • Student needs to improve relationships with teachers
• • Student is self directed and struggles to recognize when peers are frustrated or upset with him
• • Classroom Behavior:
• • Student has improved in some areas and continues to struggle to control his impulse
• • Supports include: Scaffolding, Reinforcement system, Preferential seating, Prompt fading, Differentiated instruction, Structured breaks, Visual timers, Visual schedule, Visuals, Graphic organizers and Small group instruction
• • Student is noted to be responding well to interventions (Ex G 23)

G-6 School Counselor Report 12/2021-01/2022 (G-25-G-29)

Student behaviors, supports and goals are detailed.

Supports include: model and role play, use of a social story, cognitive behavior therapy, prompting, active listening, and verbal praise (Ex G 29)

G-7 Teacher Progress Report 03/2022 (G-30-G-34)

Continues to report Student functioning, supports, and goals in detail in areas that include:

• • Math (Ex G 30-31)
• • Reading (Ex G 31-32)
• • Writing (Ex G 32-33)
• • Social Emotional Functioning (Ex G 33)
• • Classroom Behavior (E G 33-34)

G-8 Teacher Progress Report 06/2022 (G-35-G-39)

Continues to report Student functioning, supports, and goals in detail in areas that include:

• • Math (Ex G 35-36)
• • Reading (Ex G 36-37)
• • Writing (Ex G 37-38)
• • Social Emotional Functioning (Ex G 38)
• • Classroom Behavior (E G 38-39)
• • Attention (Ex G 39)

G-9 Report Card 2021-2022 (G-40-G-49)

Student Report Card reflects mostly developing skills throughout areas that include: ELA, Writing and Math.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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). The statute ensures an "appropriate" education, "not 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, 2012 WL 4946429 [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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

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. Dep't 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 137 S. Ct. at 1000).

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 burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). 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 offered an educational program which met 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 (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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 a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). 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] [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]; 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"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2021-2022 School Year

The DOE submitted documents into evidence regarding the 21-22 school year.

The IEP in effect was drafted on 06/29/2021. (Ex 1)

Testimony offered, at Hearing, did not support the ability of the IEP to offer a FAPE. (T 46)

Failings of the IEP are detailed above, including a failure to properly evaluate the Student, instead depending on information from testing over three years ago. (Ex 1-2)

The IEP also fails to address the Student’s severe reading delay, providing only one vague goal. (Ex 1-9)

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year.

I find the DOE failed to offer the Student a FAPE for the 2021-2022 school year.

UP Placement for the 2021-2022 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 2021-2022 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, E, G 1 through G 9, Ex 5 & 6, and T 36-47, 49-52, 69-70, & 74-77)

I find UP provides an appropriate education and program for the Student for the 2021-2022 school year.

UP provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 2021-2022 School Year

In light of the DOE failure to offer the Student a FAPE, for the 21-22 school year, and the finding that the UP provided an appropriate Student program and placement, for the 21-22 school year, the Parent is to funding for the UP, 2021-2022, Tuition.

The Parent asked for a DOE placement for the 21-22 school year, via fax to the DOE, on 08/16/2021, and did not receive a response. (T 96 & 101);

Parent also did not receive a copy of the New York State Procedural Safeguards

Notice. (T 97)

Student 21-22 UP Tuition is set forth as $100,000.00. (Ex C 1)

Parent is obligated to payment under the Contract via signature. (Ex C 3)

Student Tuition includes:

$95,000.00 Special Education Classroom and SLT 3/30: Group

$5,000.00 [REDACTED] Studied (Religious Studies) (T 53)

$100,000.00 Total (Ex D 1)

No part of the Tuition has been paid, leaving a balance of $100,000.00. (Ex D 2)

Considering the portion of Tuition allocated to religious instruction the reimbursable amount is $95,000.00. (T 53, Ex D 1)

Student is evidenced to have attended the UP, for the 21-22 school year. (Ex F)

Parent sent appropriate Ten Day Notice to the DOE. (Ex H)

Parent corresponded with the DOE regarding concerns and attended the IEP meeting, of 06/29/2021. (Ex 1, 2 & 3, Ex H)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

Parent provides information relative to their financial capability, Testifying that income for the 21-22 year was about $22,000.00; Witness received Medicaid during 2021 and 2022 (T 97); husband is disabled and income is received via Social Security (T 101); and Witness does not work, as she takes care of her husband. (T 101)

Witness decided to enroll the Student, at the UP, once a response was not received from the DOE, to the 08/16/2021 letter (T 102); and is obligated to pay the UP Tuition Contract. (T 102-103, Ex C)

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 2021-2022 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
• • [REDACTED] (UP) served as an appropriate Student program and placement, for the Student, for the 21-22 school year.
• • The DOE shall directly fund Student, [REDACTED] (UP). 21-22 Tuition in the amount of $95,000.00.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • 5. This decision is subject to appeal and review by the State Review Officer.

DATED: August 11, 2022

DANIEL AJELLO

DANIEL AJELLO

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.