New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 575853 - NYC: 228565

FINDINGS OF FACT & DECISION

Case No.: 228565

Student’s Name: REDACTED (Hereinafter referred to as “Student”)

Date of Birth REDACTED

Hearing Request by: REDACTED (Hereinafter referred to as “Parent”)

School: REDACTED (Hereinafter referred to as “Private School”)

Hearing Dates: June 14, 2023, July 19, 2023, August 29, 2023, October 10, 2023, November 7, 2023

Actual Record Close: December 10, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 14, 2023

For the Student:

REDACTED, Parent Advocate

REDACTED, Parent Student

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 19, 2023

For the Student:

REDACTED, Parent Advocate

REDACTED, Parent Student

For the Department of Education:

REDACTED, District Representative

REDACTED, School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 29, 2023

For the Student:

REDACTED, Parent Advocate

REDACTED, Parent Student

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 10, 2023

For the Student:

REDACTED, Parent Advocate

REDACTED, Parent Student

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 7, 2023

For the Student:

REDACTED, Parent Advocate

REDACTED, Parent Student

REDACTED, REDACTED

For the Department of Education:

REDACTED, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on July 6, 2022, regarding the 2021/2022 school year (P-Ex. A)1. The DPC alleged that the New York City Department of Education (“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 IEP and placement for the 2021/2022 school year (P-Ex. A). The Parent has requested direct funding/tuition reimbursement for the unilateral placement of the Student at the Private School during the 2021/2022 school year.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on or about July 18, 2022. A prehearing conference was held on August 29, 2022. Status conferences were held on October 20, 2022, December 1, 2022, January 12, 2023, February 13, 2023, March 8, 2023, April 10, 2023, and April 25, 2023. A hearing on the merits was held on June ^[1], 2023, June 14, 2023, July 19, 2023, August 29, 2023, October 10, 2023, and November 7, 2023 (See, Transcripts).^[2] The District presented exhibits which were entered into evidence and presented one witness. The Parents presented exhibits which were entered into evidence and presented two witnesses. The record closed on December 10, 2023. There were fourteen extensions of the timelines to allow for settlement investigation and to accommodate witnesses.

FINDINGS OF FACT

The Student was a REDACTED who attended the Private School where she was unilaterally placed during the 2021/2022 school year. The Student has expressive and receptive language delays and suffers from anxiety (P-Ex. K). She is classified as a student with a Speech and Learning impairment and her classification is not in dispute (D-Ex. 1, P-Ex. C). As a result of her disabilities, the Student’s academic performance remained below grade level, and she has significant delays in reading, writing, math and difficulty with attention and distractibility (P-Ex. H, K).

An IEP was developed by the District’s Committee on Special Education (“CSE”) on March 1, 2021 for the 2021/2022 school year (D-Ex. 1; P-Ex. C). The CSE recommended an Integrated Co-teaching Classroom (“ICT”) for 20 hours per week in ELA, Math, Social Studies and Science, and related services of counseling and speech and language therapy (D-Ex. 1; P-Ex. C). Parent attended this meeting and expressed her concern that an ICT class would be too large for the Student (T. 117). At the time of the meeting, the Student was attending the Private School in an ICT class with approximately 15 students (P-Ex. K). On August 24, 2021, Parent notified the District by letter that the Student would be unilaterally placed at the Private School for the 2021/2022 school year and she would be seeking tuition reimbursement/direct funding (P-Ex. B).

At the hearing, the District produced the testimony of REDACTED, school psychologist, who attended the IEP meeting. The witness testified that a psychoeducational evaluation, progress reports from the Private School and report cards from the Private School were utilized by the CSE to formulate the recommendation of the ICT class (T. 67). However, a Prior Written Notice (“PWN”) was not disclosed at the hearing or offered into evidence (as required by 34 C.F.R. 300.503 and 8 NYCRR 200.1). The Parent maintains that she did not receive a PWN and there is no evidence offered by the District that she did. The witness further testified that the recommendation was appropriate although she did testify that she did not know where the Student would be the other 15 hours in the week when she was not attending her ICT class (T. 81, 82).

The Parent presented at the hearing the testimony of the mother and REDACTED Special Education Coordinator at the Private School. REDACTED testified that an ICT class in a general education setting in a public school as recommended by the CSE would be too large for the Student as she requires individualized 1-1 support (P-Ex. K). The witness testified in great detail regarding the Private School program and classes the Student attended during the 2021/2022 school year (P-Ex. K). The witness further testified that the Student received speech and language therapy as well as counseling at the Private School, received individualized instruction, interacted with the general education peers, and made progress during the 2021/2022 school year (P-Ex. K).

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 did not present any reliable testimony or documentary evidence to prove that it offered the Student a FAPE during the 2021/2022 school year. The District has therefore, failed to meet its burden of proof in this proceeding. Based on all of the evidence above, I find that the District did not provide the Student with FAPE for the 2021/2022 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 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).

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the Student during the 2021/2022 school year, the burden now shifts to the Parent to prove the appropriateness of the unilateral placement. The Parent presented extensive affidavit testimony and documentary evidence in support of their position that the Private School was appropriate (P-D, G, H, I, K). The evidence established that the Private School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit her to benefit from instruction.

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.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/2022 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate.

ORDER

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

1. ORDERED, that the New York City Department of Education shall reimburse the Parent for tuition and related costs and fees for the Student’s unilateral placement at the Private School for the 2021/2022 school year and fund the remaining balance of the secular tuition for the Private School for the 2021/2022 school year.

SO ORDERED

DATED: December 12, 2023 Marisa Carbone

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.

DISTRICT EVIDENCE

1. IEP 3/1/21 29 pages DOE

2. Letter re: Recovery Services 11/3/21 3 pages DOE

PARENT EVIDENCE

A. Ex. Date Description Pages Impartial Hearing Request 7/6/22 3 pages

B. Notice 8/24/21 2 pages

C. IEP 3/1/21 24 pages

D. REDACTED Mission Statement Undated 3 pages

E. REDACTED Contract 21/22 6 pages

F. REDACTED Affidavit of Payment 21/22 1 page

G. REDACTED Class Schedule 21/22 1 page

H. REDACTED Teacher Progress Report 5/24/22 9 pages

I. Progress Report Counseling 7/15/22 1 page

J. Attendance 21/22 7 pages

K. Affidavit of REDACTED IHO’s EVIDENCE None 6 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. The date in the record for the exhibit is in error.

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