New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577830 - NYC: 230042

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 230042

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: August 15, 2023 (filed 8/25/23)

Hearing Dates: May 25, 2023

Actual Record Close Date: May 25, 2023

Decision Date: June 6, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 25, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Psychologist

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) dated August 15, 2022, and filed August 25, 2022, regarding the 2022/23 school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on August 26, 2022. A prehearing conference was held on September 30, 2022, to discuss the issues in the case. After several status conferences and no appearance by the District, a hearing was scheduled for May 25, 2023, and concluded in one day (See, Transcripts).^[2] The District appeared but did not present a case. The Parent presented exhibits^[3] and two witnesses. The record closed on May 25, 2023. There were seven extensions of the compliance timelines granted to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old student who attends the Private School during the 2022/23 school year (P-Ex. A). The Student is diagnosed with ADHD, [Redacted] and [Redacted] (T. 72). The Parent described the Student as smart, a strong reader, and articulate, but struggled with focus, had difficulty keeping on task, would get intimidated with new material, avoidant, and his hyperactivity made it hard for him to settle in and engage (T. 71-72).

The Parent suspected that the Student had difficulty sitting still and had him evaluated at the age of 5 when he was diagnosed with ADHD (T. 72). In preschool, the Student received occupational therapy and had a paraprofessional for an hour a day (T. 73). At the age of 7, he was diagnosed with [Redacted], when he first became [Redacted] (T. 72-73).

The Parent testified that they never received an IEP or placement for the Student for the 2022/23 school year (T. 73). The Parent sent the District a ten-day notice on August 15, 2022, and enrolled the Student at the Private School for the 2022/23 school year (P-Ex. A; T. 73-74). The Parent signed a tuition contract and is liable for the tuition under the terms of the agreement (P-Ex. C; D; T. 76). Parent made payments for the tuition (P-Ex. D; T. 76).

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 a case, and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2022/23 school year. There was no testimony to describe why an IEP had not been developed for the Student for the 2022/23 school year. Based on all of reasons above, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Psychologist at the Private School testified that she has worked at the Private School since August 2021 (T. 57). She has a caseload of students that she sees for individual counseling; she consults with teachers and staff; provides professional development; supervises counselors; and collaborates with parents (T. 58).

The Private school serves student with unique cognitive profiles, with high strengths but also significant learning challenges or social emotional challenges (P-Ex. B; T. 58). Each student has a uniquely designed schedule in small group classes of no more than six students (T. 58). Students also get to meet 1:1 with their academic teacher as part of their schedule (P-Ex. B; T. 58). The Private School builds in time with the counselor and small group counseling to address social emotional skills (T. 59). They also have psychosocial teachers that are available when students need to take a break or navigate social conflicts during the school day (T. 59-60). Students are also supported socially/emotionally in the classroom by way of a speech language pathologist that is integrated into the classroom (T. 59).

The upper and lower schools at the Private School serve grades kindergarten to 12th grade (P-Ex. B; T. 60). The upper school has 115 students (T. 60). Class ratios range from 6:1 to 1:1 and Students are grouped by learning profile, cognitive strengths and weaknesses and social emotional characteristics (T. 60-61). Faculty are provided with internal and external professional development every Friday, as well as a larger conference with speakers (T. 61). The Private School communicates with Parents with monthly calls where one month an academic advisor reaches out to the parents, and the next month the counselor reaches out to provide updates (T. 64). The Private School uses a variety of different sources for their curriculum, and they have the flexibility to customize it to the individual student (P-Ex. B; T. 62).

The Psychologist has been the Student’s individual counselor since last school year, and into this school year (T. 62). She described the Student as having amazing academic and cognitive potential but has deficits that interfere with him showing what he knows and paying attention to the information presented (T. 63). They provide him with supports to make sure he can attend and stay on task (T. 63). She also provides consultations to teachers about what prompts work best for the Student (T. 63). The Student also has social skill deficits that they help him process in the moment or talk about it later in sessions (T. 63). The Student also has challenges with self-esteem when faced with academic challenges and they are working on building his self-esteem and confidence (T. 63-64). Besides counseling, the Student also receives related services of Occupational Therapy and Speech Language therapy in a co-teaching setting (T. 65). They work in a small group setting and work on social emotional challenges, social skills, working collaboratively, and emotional regulation (T. 65). Both the OT and Speech are also integrated into a few classes during the week (T. 65).

The Psychologist testified that the 1:1 time with academic teachers has benefited the Student (T. 65). An extra 30 minutes is built into his schedule each week to allow him to catch up due to emotional dysregulation, extend content, and receive academic support (T. 65-66). The Private School has also designed specific strategies to target the Student’s needs such as, a daily behavior report card that includes goals specific to him; specific language to use to redirect him; and check-ins specific to his social deficits in order to be proactive with any emotional needs that are building up during the day (T. 66-67). With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, the Student has made progress. The supports provided by the Private School have helped build his confidence, his ability to learn, and his independence (T. 67). He has made progress in his ability to know when to take a break when things get overwhelming; he tracks his own goals on his daily report card where before he would not care; and he has developed a better ability to gain insight from different social situations and talk about challenging emotions (T. 67-68). The Parent testified that she has also seen progress (T. 74). At the beginning of the school year; his ability to cope with stress was limited, and it was a struggle to get him to engage with schoolwork and peers (T. 74-75). Now, the Student can engage with schoolwork and get through difficult interactions with peers more effectively and productively (T. 75). The Student is able to use the supports offered to him, take breaks and is doing the classwork (T.75). Based on all of the above, I find that the Private School is an appropriate placement for the Student for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District.

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 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement / direct funding. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2022/23 school year.

SO ORDERED

DATED: June 6, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. TDN & DPC 8/15/23 3 pages

B. Private School Program Description 22/23 24 pages

C. Enrollment Contract 4/19/22 6 pages

D. Affidavit of Tuition Payment 11/10/22 1 page

E. Class Schedule 22/23 1 page

F. Progress Report 22/23 Fall 4 pages

G. Progress Report 22/23 Spring 7 pages

H. Attendance letter 5/3/23 1 page

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

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

[3] A more detailed list of exhibits is attached.