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CASE NUMBER: 584238 - NYC: 235875
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: September 8, 2022
Date(s) of Hearing: February 15, 2023, March 14, 2023 and March 21, 2023
Actual Record Closed Date: April 7, 2023
Date of Decision: April 21, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 15, 2023
For the Student:
[REDACTED], Attorney, [REDACTED]
For the Department of Education:
No one
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 14, 2023
For the Student:
[REDACTED], Attorney, [REDACTED]
[REDACTED], Director of Academic Support
For the Department of Education:
No one
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 21, 2023
For the Student:
[REDACTED], Attorney, [REDACTED]
[REDACTED], Parent Student
[REDACTED], Parent Student
For the Department of Education:
No one
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated September 8, 2022. (Ex. P-A) [2]. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on October 25, 2022. A prehearing conference was held on October 28, 2022. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. [REDACTED] advised that the matter had been approved by the District for settlement. Another conference on notice to both parties was scheduled for November 17, 2022. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. The parties agreed additional time was needed for settlement negotiations. [REDACTED] advised that the District would be assigning a new attorney. A status conference was held on December 13, 2022. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. Another status conference was scheduled for January 6, 2023 at the request of the Parents. On January 6, 2023, [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. Again, the parties requested additional time while they waited settlement approval from the comptroller. A final status conference was scheduled for January 18, 2023. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District.
The matter was scheduled for hearing on February 15, 2023, and notice was sent to the parties (Ex. IHO-I). [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. Subsequent hearing dates were held on March 14, 2023 and March 21, 2023. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District, despite written notices sent by the IHO (see Exs. IHO-II and IHO-III). The District did not appear at any of the hearing dates, request an adjournment or communicate with the IHO in any manner. As such, the hearing proceeded in absentia.
Five extensions of the compliance date were granted on the record at the request of the Parents to enable time to negotiate a settlement, ensure witnesses were available and complete the hearing record [3]. The Parents entered into evidence exhibits A-N.[4] 5 Three witnesses testified
5 The Parents never sought to admit the final exhibit (T:97-99). on behalf of the Student, including the Student’s parents. The District did not enter any evidence into the record. The record was closed on April 7, 2023 [6].
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student was [REDACTED] years old at the time of the DPC. He was classified by the District’s Committee on Special Education (“CSE”) as a student with a learning disability. According to the DPC, the CSE failed to hold an annual review meeting to develop an Individualized Education Program (“IEP”) for the 2022-23 school year. The DPC states that during the prior school year, the CSE recommended an Integrated Co-Teaching (“ICT”) class for ELA and math, special education teacher support services (“SETSS”) for ELA and math, speech language therapy and occupational therapy (Ex. P-A-3). The Parents unilaterally placed the Student at [REDACTED] (hereinafter referred to as “the private school”) for the 2022-23 school year for the seventh grade.
ISSUES
The Parents allege in the DPC that the District failed to develop an IEP for the Student for the 2022-23 school year (Ex. P-A-1; T:42). The DPC raises numerous procedural and substantive challenges to the 2021-22 school year developed on January 13, 2021 (Ex. P-A-3-4). There is no IEP in evidence regarding either school year. The Parents seek reimbursement for their unilateral placement of the Student at the private school for the 2022-23 school year.
As stated above, the District has not responded to the DPC in any manner.
FINDINGS OF FACT
[REDACTED], the Student’s father testified that the Student is an outgoing boy with a great personality who loves his friends and family. The Parents first noticed that the Student struggled as an early learner with reading and basic math. He has always received extra services and was first classified and attended an ICT class in the public school in third grade (T:76-77, 87). The Parent testified that the Student did poorly in the ICT class and could not keep up with the work (T:89). The Student was evaluated by a pediatric neuropsychologist while he was in third grade. He was diagnosed with a language disorder, attention deficit hyperactivity disorder, predominately inattentive type, specific learning disability with impairment in mathematics, developmental coordination disorder, specific learning disorder with impairment in reading and written expression (Ex. P-C-11). He began in the private school in the fourth grade (T:77).
The Parent testified that no IEP was developed for the 2022-23 school year and no school placement letter was received. The Parent testified that the Student has benefited from the smaller classes and teacher-student interaction at the private school. Through homework assistance, he has observed the Student’s academic progress while in attendance at the private school (T:78, 80). The Parents are in contact with the private school a couple of times a week to discuss how the Student is progressing (T:81).
The Parents presented the testimony via affidavit of [REDACTED], the Director of Academic Support at the private school (hereinafter referred to as “the Director”). The school is not approved by the New York State Department of Education (T:61). The Director holds a New York State license in speech and language pathology. She began her career as a teacher for children with language and hearing impairments in the District. She began her employment at the private school in 1984 as a speech pathologist, worked as a director of admissions, moved to lower school director, and commenced her present position in 2015 (Ex. P-N-1). The private school is a school for children with language-based learning disabilities with at least average intelligence (Ex. P-N-2, T:62). During the 2022-23 school year, 49 students were enrolled in the lower school, and 101 students were enrolled in the middle school (Ex. P-N-6, see Ex-P-E for an overview of the middle school program).
The Director testified that the Student was admitted to the school for the 2019-20 school year and has remained there continuously since then. She described him at the time of admission as a student with significant problems with receptive language, working memory, processing speed, fluid reasoning and attention who had not made progress in the District’s ICT class with support (Ex. P-N-6, T:62-63).
She testified that he is a friendly child, socially motivated to interact appropriately with peers and teachers. He continues to struggle with focus, attention and impulsive behaviors. He has substantial deficits with decoding, reading rate, reading comprehension and reading fluency. He has difficulty with generating complex sentences, paragraph writing, using learned punctuation, grammar and syntax. In math, he has challenges with computation and problem solving (Ex. P-N-6).
At the private school, he attends small classes with access to his advisor and counselor. His attention and focusing needs are addressed with visual reminders, refocusing prompts, preprogramming, direct instruction, breaks and cues. His academics are presented with language skill supports utilizing multi-sensory approaches. His writing needs are addressed in a systematic writing program. He receives one-to-one writing instruction when needed, modeling, scaffolding and the use of graphic organizers, outlines and technology. His reading challenges are addressed through the Orton Gillingham based reading program Preventing Academic Failure. Math is addressed using the multi-sensory Singapore math, and he receives chunking of information, repeated directions, task breakdown, visual and auditory cues and extended processing time. His teachers are available for 1:1 support when needed (Ex. P-N-6-7, 9).
Based upon teacher made assessments, the Student’s reading and writing skills at the beginning of the 2022-23 school year were estimated to be at the fourth grade level. His math skills were assessed at a beginning fourth grade level and small group multi-sensory instruction was planned for him. The Student is in small self-contained seventh grade classes of up to six or seven students with similar academic delays taught by head teachers with master’s degrees in general/special education for reading, writing and math. In social studies, science, art, movement and adaptive physical education, he is taught in groups no larger than 12 with one to two teachers. (Ex. P-N-7-8,T:63, see Ex. P-I for the Student’s complete academic schedule).
The Student also receives speech language therapy taught by a New York State licensed and certified therapist once per week for forty-five minutes in a group of five students (T:64). The private school has been addressing his language formulation skills, word-retrieval challenges, communication skills and pragmatic language skills. The speech language therapist shares all of his language goals and consults with all of the classroom teachers to ensure those goals are also worked on in all of his classes (T:64-65). He is provided counseling by a licensed and certified psychologist who works on social/pragmatic communications, working collaboratively with others and problem-solving skills (Ex. P-N-8).
The Student’s progress is monitored daily through teacher-made materials. Report cards are issued two times per year. The Director testified that he has progressed to a mid-fifth grade level for decoding and comprehension with the support provided. In math he has progressed to a fifth-grade level with the supports in place and has demonstrated improvement in multiplying and dividing fractions and decimals. In writing he has made progress in using correct punctuation and is amenable to writing supports for paragraph writing (Ex. P-N-10).
The Student’s teachers and related service providers prepared reports in February of 2023 outlining the Student’s goals, strengths and struggles. The reports also include specific strategies utilized with the Student and recommendations moving forward (Exs. P-J, P-K and PL). The private school also issued a Semester 1 Report Card which describes the materials used, skills worked on, and progress made during the Fall of 2022 (Ex. P-M).
The Parent testified that he has cooperated with the District and responded to notices and requests in a timely manner. He does not know why the District did not convene an annual review meeting for the Student the 2022-23 school year (T:82,84). The Student’s other parent [REDACTED] testified that his counsel sent the notice of unilateral placement to the District on August 22, 2022 on the family’s behalf (T:96), Ex. P-B). The Parent testified that there was no District response to the DPC (T:86-87). The Parents entered into a contract with the private school on February 24, 2022 (Ex. P-G) The Parent testified that the tuition has been paid in full (T:83).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parents in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The Parent’s testimony that the District failed to offer the Student a public school placement for the 2022-23 school year was uncontroverted. The District failed to participate in the hearing process and enter any evidence or testimony to demonstrate that it offered the Student a FAPE for the 2022-23 school year. The Parents were left with no option but to provide a nonpublic school placement for the Student. I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s undisputed failure to meet its burden, I do not find it necessary to consider specific challenges to the prior year’s IEP raised in the DPC.
Turning to the private school program selected by the Parents, based upon a thorough review of the testimony and evidence as fully set forth above, I find the Parents met their burden that the private school provided the Student with specific instruction to meet his unique special education needs during the 2022-23 school year. The uncontroverted testimony reflects that the private school provided him with specific strategies to address both his academic and social needs. It is undisputed that with the targeted direct instruction in reading, writing and math, the Student has made progress during the 2022-23 school year. The related service providers have further supported his language needs and social and emotional development. I find that the private school was an appropriate unilateral placement.
There is no evidence in the record that the Parents did not cooperate with the District or thwarted the CSE process in any way. The Parents also provided timely notice of their unilateral placement to the District. The equitable considerations weigh in favor of the Parents.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the District shall reimburse the Parents for tuition paid to the private school for the 2022-23 school year upon presentation of proof of payment and attendance.
SO ORDERED.
DATED: April 21, 2023
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Impartial Hearing Request 9/8/22 6 pages
B. Notice of Unilateral Placement 8/22/22 4 pages
C. Neuropsychological and Educational Evaluation 5/17/19 24 pages
D. /10/20 18 pages
E. [REDACTED] Program Description undated 2 pages
F. Semester 2 Report Card 2021-2022 14 pages
G. Enrollment Contract 2/24/22 4 pages
H. Payment Affidavit 9/21/22 2 pages
I. Daily Schedule 9/23/22 2 pages
J. Instructor/Teacher Report 2/14/23 7 pages
K. Speech/Language Report Spring 2023 3 pages
L. Counseling Progress Report 2/6/23 2 pages
M. Semester 1 Report Card 2022-2023 15 pages
N. [REDACTED] Affidavit 03/08/23 11 pages
IHO’S EXHIBITS
I. Emails to parties from IHO regarding scheduling 1/18/23 1 page
II. Email chain to parties from IHO regarding scheduling 2/15/23 – 3/14/23 1 page
III. Email to parties from IHO regarding scheduling 3/14/23 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] The first extension was jointly requested.
[4] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[6] On April 11, 2023, the IHO received via email a notice of appearance on behalf of the District from [REDACTED] This IHO advised [REDACTED] via reply email that the record was closed on April 7, 2023 and the decision was due by April 21, 2023. The IHO did not receive a response.