New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 587552 - NYC: 238837

FINDINGS OF FACT & DECISION

Case No. City/State: 238837 / 587552

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

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

School: [REDACTED] (hereinafter referred to “Private School”)

Hearing Dates: 9/13/23; 9/14/23; 9/20/23

Actual Record Close: 10/25/23

Hearing Officer: David R. Gronbach Esq.

Date of Decision: November 8, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Private School Supervisor

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”) filed on or about September 20, 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 failing to recommend and implement an appropriate program. (P-Ex.A). The Parent has requested direct funding for Parent’s unilateral placement of the Student at Private School for the 2022/23 school year. (P-Ex. A; T.pg. 45; 48). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on November 29, 2022. A Pre-hearing Conference was held on December 12, 2022 and Status Conferences thereafter on 1/20/23; 3/1/23; 3/23/23; 4/19/23; 5/16/23; 6/1/23, at which time Hearing was scheduled for July 17, 2023, but not entered by the IHO Office. Thereafter, the Hearing was scheduled for September 13, 2023. (T.pg.39-40).

At the September 13th Hearing, the District did not present a case with either exhibits or witnesses. (T.pg.40). The Parent presented exhibits that were entered into evidence and the testimony of one witness, which was continued to 9/14/23.^[3] (T.pg.43-44). At the September 14th Hearing, Parent’s witness testified and the matter was continued to September 20, 2023. (T.pg.102-03). At the September 20th Hearing, Parent presented an exhibit that was entered into evidence and the testimony of one witness. (T.pg.103).

Ten joint/unopposed requests to extend the compliance date were granted. The record closed on October 25, 2023.

FINDINGS OF FACT

Parent testified Student attended Private School for the 2022-2023 school year. By letter sent to the Department of Education (“DOE”) on June 20, 2022, Parent notified the DOE that Student has not received a school placement for the 2022-2023 school year and Parent’s intent to unilaterally place Student at Private School for the 2022-2023 school year and to seek tuition funding. (P-Ex.J). Parent did not receive a response and did not receive a placement for the 2022-2023 school year. Parent testified she did not receive a “Procedural Safeguards Notice” within a year of the start of the 2022-2023 school year. (P-Ex.K).

Parent testified she was unable to afford the cost of Private School or to advance that sum pending reimbursement. Parent is not seeking funding from the DOE for the religious portion of the tuition. (P-Ex.K).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a 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).

As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

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.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District did not present a case with exhibits or witnesses regarding the 2022/23 school year. Parent’s testimony and claims regarding the denial of FAPE were not disputed with factual evidence. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE during the 2022/23 school year. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT

The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (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; see 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).

Parent presented the testimony of Private School Supervisor, who testified Private School’s program was designed for students with language delays and behavioral challenges. The program follows the general education curriculum modified for each individual student based on their own individual deficits in alignment with the ABA methodology. There is a heavy emphasis on social skills in instruction and data-driven plan for each individual student. (T.pg.53; P-Ex.E).

Student had nine students in his class, all students with special needs and with opportunities to interact with typically developing peers. The class had one licensed special education teacher at all times and assistants. (T.pg.54-55). Supervisor described Student’s behavioral challenges, including internalizing (anxiety; feeling overwhelmed) and externalizing (tantrumming; aggression; crying) components. (T.pg.56-57). Supervisor described how Student could not deal with group activities at all and lacked the skills to self-regulate. (T.pg.57).

Student’s behavioral challenges and difficulty to self-regulate made it very hard for him to be able to come into the class ready to learn, focus, attend, respond, follow directions. He had a hard time following directions and interacting appropriately, both with the staff, and with the students within the classroom. Student was therefore delayed in literacy, language skills, listening comprehension, reading and decoding, writing, but had the capacity to learn in most of those domains. (T.pg.58-61). Private School’s program began with a functional behavioral assessment and behavior intervention plan creating supports and interventions and replacement behaviors to meet his needs, as well as functional communication training. The treatment plan was organized as a comprehensive plan of language, communication, social behavior, reading, writing. Private School created small incremental goals that included the reinforcement plan for him to be driven to achieve those incremental goals. Goals and progress were tracked in a data collection platform. (T.pg.64-66; 72-73). Supervisor testified to the progress Student made through the 2022/23 school year, in the realm of behavior, socially, and emotionally (T.pg.66-68) and academically (T.pg.68-70; P-Ex.I).

Student received related services of Speech, OT, and counseling by licensed and certified Professionals. (T.pg.71). With respect to the student’s progress at the Private School, 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 academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that Private School was an appropriate placement 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). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent provided Notice to the DOE on 6/20/23. (P-Ex.B). Student became enrolled at Private School on September 8, 2022. (P-Ex.F-1). Thus, Parent’s notice was timely.

2. The Parent’s actions were reasonable. The District failed to establish Parent prejudiced the District.

In balancing the equities, I find in favor of the Parent.

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 2022/23 school year. I further find that the Parent’s unilateral placement at Private School was appropriate. Parent was unable to afford the Private School tuition and is entitled to direct tuition funding to Private School for the 2022/23 school year, reduced by $5,000 religious instruction.

Parent’s remaining claims are rejected for lack 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 directly fund Private School all Private School tuition and fees for the Student’s unilateral placement at Private School for the 2022/23 school year, reduced by $5,000 religious instruction.

SO ORDERED

DATED: November 8, 2023

David R. Gronbach

David R. 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.

DISTRICT EVIDENCE

N/A

PARENT EVIDENCE

A. Request for Due Process Proceeding and Notice of Appearance 09/20/2022 7 pages

B. Findings of Fact & Decision (Case#:207744) 3/28/2022 14 pages

C. Findings of Fact & Decision (Case#:225573) 08/14/2022 33 pages

D. IEP 3/30/2022 24 pages

E. Student Contract, Program Description, and Curriculum 06/21/2022 14 pages

F. Affirmations regarding Tuition Breakdown and Payments 05/24/2023 2 pages

G. Curriculum Schedule 2022-2023 1 page

H. Student Attendance 2022-2023 1 page

I. Assessments, Plans, and Reports Various 34 pages

J. Ten Day Notice from Parent to DOE 06/20/2022 2 pages

K. Parent Affidavit 09/18/2023 2 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.

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

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