Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Names and Titles of Persons who appeared at the September 19, 2022 Hearing

For the [REDACTED] [REDACTED], Esq., Agency Attorney

For the Parents:

[REDACTED], Esq., Attorney for Parent

Names and Titles of Persons who appeared at the September 13, 2023 Hearing

For the [REDACTED] [REDACTED], Esq., Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

I. Introduction and Procedural History

On July 19, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [REDACTED] ("Student") brought by his parents (“Parent” or “Parents”). A pre-hearing conference was held on August 26, 2022, a pendency hearing was held on September 19, 2022, and a one-day hearing was held on September 14, 2023. Numerous status conferences were held in an attempt to facilitate settlement. The [REDACTED] (“[REDACTED]”) was represented by [REDACTED], Esq. and Parent was represented by [REDACTED], Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective September 14, 2023.

II. Background

Student presently attends the [REDACTED]. (“[REDACTED] Academy” or “[REDACTED]”). Parent filed a due process complaint on April 29, 2022, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at [REDACTED] for the 2022-2023 school year, as well as round trip door-to-door transportation. (Exh. A). There was one day of hearing. The [REDACTED] did not put on a case or submit evidence. Parent provided direct testimony of two witnesses by affidavit, Parent, and a representative from [REDACTED]. The [REDACTED] declined the opportunity to cross examine either witness. (Transcript).

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student received the requested program pursuant to a pendency order based on the same fact pattern from the previous year. There is no IEP in evidence and the [REDACTED] did not argue that FAPE was provided for the 2022-2023 school year. No further discussion regarding the appropriateness of the IEP is necessary.

Student attends the [REDACTED] Academy. The [REDACTED] Academy is a program that provides comprehensive services for students with brain-based disorders who participate in academic instruction with appropriate modification and adaptation, as well as therapeutic services. (Exh. I). The school provides a multidisciplinary and collaborative program using medical, clinical, and educational interventions and is a twelve-month extended day program. (Exh. I, page 2). There are extensive related services, including health and nursing services, aquatic therapy, vocational development, and behavior therapy support. (Exh. I, page 4). There is extensive use of assistive technology, including classroom tools, and each student is provided with loaner assistive technology based on their individual needs for communication and general access to the curriculum. (Exh. I, pages 4-5). There are 105 students from age 5-21, and the fifteen classes are grouped by age, developmental level, and ability to learn and interact in the classroom. (Exh. R, page 3). There are small classes, and each student is assigned a 1:1 paraprofessional at all times and a variety of modified curriculum is used. There is an intensive Activities of Daily Living program, as well as related services using a combination of push in and pull-out models and there is an interdisciplinary team for each student that collaborates frequently. (Exh. R, pages 4-6). The teachers hold or are working towards master’s degrees, and the faculty and staff have the same qualifications as the [REDACTED]; significant professional development is held throughout the year.. (Exh. R, page 9).

Student is classified by [REDACTED] as a Student with [REDACTED]; he has been attending [REDACTED] since the 2020-2021 school year. (Exh. R, page 10). Student is non-verbal and non-ambulatory and is diagnosed with [REDACTED]. (Exh. R, page 11). Student needs help with all of his activities of daily living. (Exh. R, pages 10-12). The school conducts annual educational evaluations and based on the results of these extensive evaluations, developed a recommended Individualized Education Plan for Student. (Exh. L). The evaluations included a speech and language evaluation, an occupational therapy evaluation, physical therapy evaluation, functional vision assessment, as well as academic evaluations. (Exh. L). The evaluators recommended a 6:1:1 class with a full time paraprofessional as he “presents with very significant academic, communicative, and social/interpersonal needs due to the extensive nature of his brain-based disability.” (Exh. L). Students are placed in a classroom based on ages, learning style and needs of students. The recommended services included speech and language therapy, 4 x 60 minutes, occupational therapy 5 x 60 minutes, physical therapy, 5 x 60 minutes, vision therapy, 3 x 60 minutes per week, parent counseling and training monthly, and assigned assistive technology. (Exh. L, page 4 and Exh. R, page 13). Goals were developed based on these assessments for the 2022-2023 school year, including academic goals in reading, math, and. social/life skills. (Exh. L). Goals were developed to address Student’s vision deficits and to address Student’s speech and language therapy, occupational therapy and physical therapy needs. (Exh. L).

Student’s schedule for the 2022-2023 school year included social engagement, sequencing, academic content-based instruction in literacy, math, social studies, “prep for life” class, art, music, cooking, reading and science and social skills development, as well as the above recommended related services and Activities of Daily Living. (Exh. I and Exh. K).

Student made progress during the 2022-2023 school year. (Exh. N). Student made progress in both his academics and therapies. Student progressed gradually and inconsistently towards his educational goals and related services goals. (Exh. R, page 14-16). According to Parent, Student made progress at [REDACTED] in every area of his development. (Exh. S, page 2).

Parent signed an enrollment contract on May 13, 2022. (Exh. J). The enrollment contract provided for release if the school district provided a placement prior to October 15, 2022 and requires full cooperation with the school district. (Exh. J, pages 2-3). Parent showed that she is unable to afford the cost of tuition, and that she paid $100 towards total tuition. (Exh. J and Exh. S, page 5).

Parent filed a Ten-Day Letter on June 16, 2022. (Exh. G). The [REDACTED] determined that settlement was not appropriate. (Exh. H). Parent filed a due process complaint on July 11, 2022. (Exh. A).

FAPE

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

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

BURDEN OF PROOF

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

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

APPROPRIATENESS OF THE PRIVATE SCHOOL

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

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

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement . . . provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

The same placement was found to be appropriate for Student for the 2021-2022 school year in case number 210772, as well as for the 2020-2021 school year, for case number 22613. Neither case was appealed by the [REDACTED]. (Exh. B). Parent has shown, through testimony, and documentation, that [REDACTED] understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to funding and/or reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

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

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. G). The uncontroverted evidence is that Parent was cooperative. (Exh. S). Parent showed her inability to pay tuition and seek reimbursement under the Carter Analysis. (Exh. O, Exh. Q and Exh. S). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year.

Parent also requests special education transportation. (Exh. A). The uncontroverted testimony was that Student needed special education transportation to access his education. (Exh. Q, page 17). This request includes special education transportation with 1:1 travel paraprofessional, air conditioning, a Lift Bus, Student uses walking aids and a regular size wheelchair, limited time travel and transportation from the closest safe curb location from home and school. (Transcript). The [REDACTED] had no objection to this request. (Transcript). As there was no objection, I order the [REDACTED] to provide special education transportation as requested.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The [REDACTED] shall fund/reimburse Parent for tuition and costs at the International Academy of Hope for the twelve-month 2022-2023 school year within thirty days of receipt of invoice and/or proof of payment.

3. The [REDACTED] shall provide round trip special education transportation to the International Academy of Hope for the 2022-2023 school year, including limited travel time in an air-conditioned vehicle, lift bus, wheelchair assistance, transportation from the closest safe curb location from home and school and a 1:1 transportation paraprofessional.

Dated: September 18, 2023

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS ADMITTED AT HEARING [REDACTED]

None

Parent

EXHIBIT DATE NAME OF DOCUMENT #PAGES PAGE DATE

NUMBER

IN

IN PDF EVIDENCE

A 07/11/2022 Due Process Complaint - Filed & 12 3-14 09/19/2023

Stamped w/ IHO Appointment -

228899 B 07/22/2022 Finding of Facts and Decision issued by 19 15-33 09/19/2023

IHO Audrey Daniel for Case no. 210772 C 07/07/2021 Due Process Complaint - Filed & 11 34-44 09/19/2023

Stamped without IHO Appointment Case no. 210772 D 07/12/2021 IH Office Notice - New IH Request 1 45 09/19/2023

Received - Case no. 210772 E 08/09/2021 IH Office Notice - Motion to Schedule - 1 46 09/19/2023

Case # 210772 F 12/23/2021 IH Office Notice - New IHO 1 47 09/19/2023

Appointment - Case no. 210772 G 06/16/2022 Ten Day Notice 5 48-52

H 07/05/2022 [REDACTED]’s Response to Parent’s 1 53

Ten-Day Notice I 2022-23 [REDACTED] Program Description 11 54-64

J 05/17/2022 [REDACTED] Enrollment Contract 5 65-69

K 2022-23 [REDACTED] Classroom and Student 2 70-71

Schedules L 06/01/2022 [REDACTED] Individualized Education 22 72-93

Plan

M 11/22/2022 [REDACTED] Educational Annual 33 94-126

Assessment N 06/22/2023 [REDACTED] Quarterly Progress 9 127-135

Report for Q1-4 O 05/23/2023 [REDACTED] Tuition Affidavit 1 136

P 06/01/2022 [REDACTED] Proof of Payment 1 137

Q 03/01/2023 2022 Tax Return 2 138-139

R 09/08/2023 Affidavit of [REDACTED], 17 140-156

[REDACTED]

S 09/08/2023 Affidavit of [REDACTED], English 7 157-163

T 09/08/2023 Affidavit of [REDACTED], Spanish 8 164-171

Impartial Hearing Officer

None.