New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588356 – NYC: 239537

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: February 27, 2023

Record Closed Date: February 27, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the February 27, 2023 Hearing For the REDACTED REDACTED, Esq., District Representative

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Esq., Attorney

REDACTED, Parent Parent

REDACTED, Parent Parent

REDACTED, Head of School, REDACTED

REDACTED, Intern, REDACTED Law.

I. Introduction and Procedural History

On November 16, 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 November 30, 2022, a status conferences on January 13, 2023. A one-day hearing was held on February 27, 2023. 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 February 27, 2023.

II. Background

Student presently attends the REDACTED. (“REDACTED”). Parent filed a due process complaint on September 27, 2022, alleging a denial of a Free and Appropriate Public Education for the 2021-2022 and 2022-2023 school years, and requesting tuition at the Academy [REDACTED]. (Exh. A). There was one day of hearing. The REDACTED submitted the IEP and otherwise did not present a case. (Exh. 2). Parent provided affidavit testimony of a representative from the Academy [REDACTED] and Parent. (Exh. R and Exh. S). Both witnesses were available for cross examination during the hearing.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

An Individualized Education Program (“IEP”) meeting was held on March 22, 2022. (Exh. 2). The uncontroverted testimony is that Parent requested an IEP meeting on August 21, 2021, and that the IEP team did not complete evaluations and conduct the meeting until March of 2022. (Exh. R, page 2). The REDACTED did not defend its recommendations, did not submit an IEP or IESP for the 2021-2022 school year, and no further analysis of the IEP is necessary. The REDACTED’s own testing indicated that Student has cognitive functioning in the average range but was performing below grade level in reading, math and spelling. (Exh. E, page 4). The evaluator noted Student’s Autism diagnoses and significant weaknesses across academic domains. (Exh. E, page 6).

Student attended REDACTED for part of the 2021-2022 school year, beginning on October 18, 2021 and continued attending through the 2022-2023 school year. (Exh. G, Exh. H and Exh. R, page 4). REDACTED is an independent private school for mid to high functioning students on the Autism Spectrum and uses a multidisciplinary team approach to learning. (Exh. I, pages 1,4) and Exh. S, page 3). The staff is licensed and supervised by an LBA or BCBA. (Exh. I). Related services including speech and language therapy, occupational therapy, physical therapy, and counseling are provided by licensed providers. (Exh. I, page 1). Academic instruction is provided in English Language Arts, math, social studies, science and adapted physical education and the goal is to ensure fluency is acquired in all skills taught. (Exh. I, page 1). The academic curriculum focuses on building foundational skills in reading, writing, mathematics and social and emotional development, to bridge any gaps and to allow students to achieve independence. (Exh. S, page 4). There is a sensory integration program, social integration partnerships program and the school uses ABA therapy to provide individualized instruction, as well as Brain Power Wellness to support students in improving their learning efficiency, behavior management skills and social repertoires. (Exh. I, pages 1-3 and Exh. S, page 4). Students are placed in classrooms according to their level of functioning, with similar needs and abilities. (Exh. I, page 3 and Exh. S, page 3). IEPs are developed at the beginning of each school year, including behavior intervention plans, and goals for academic, behavioral, and developmental domains and sensory integration issues are addressed. (Exh. S, pages 5, 6).

Parent counseling and training is provided through twice weekly parent teacher communication, weekly related service provider communication, team meetings as needed and extensive family support. (Exh. S, page 5). There are six therapy rooms, a sensory and indoor gyms, and an outdoor playground. (Exh. S, page 6). Remote learning plan was developed and implemented as needed during the Covid Pandemic. (Exh. J).

Student is presently a twelve-month student and is placed in an 8:1:2 classroom. (Exh. S, page 8). Student’s class schedule for the 2021-2022 school year included fluency training, journal ELA, spelling, writing, art, math, and music. (Exh. K). Student also received speech and language therapy, occupational therapy, physical therapy, and counseling. (Exh. K). For the 2022-2023 school year, Student’s schedule also included sensory gym. (Exh. L). Student’s individualized program includes one on one and group ABA therapy throughout the school day. (Exh. S, page 10). An IEP was developed by REDACTED for the 2021-2022 school year to address Student’s needs. (Exh. O and Exh. S, page 9). The team meets weekly and as needed. (Exh. S, page 11).

Student made progress during the 2021-2022 school year. (Exh. O). Progress is constantly monitored by staff. (Exh. S, page 16). Student made progress during the 2022-2023 school year. (Exh. P). Extensive progress reports were provided to Parent quarterly that addressed the goals, and progress towards those goals. (Exh. O and Exh. P). Parent testified regarding Student’s improvement in his social and language skills. (Exh. R, pages 4-6). The school’s witness testified that Student’s off task behaviors decreased and his ability to make positive statements about himself and engage in more appropriate behaviors to address frustration during the 2021-2022 school year. (Exh. S, pages 11-2). This school year, they are focusing on and noting improvement in Student’s on-task behaviors, speaker behavior and decreased aggressive behavior. (Exh. S, page 12).

Parent signed enrollment contracts for both school years; the contracts required Parent to cooperate with the REDACTED. (Exh. G and Exh. H). The contract provided for withdrawal if the REDACTED provided an appropriate placement. (Exh. G and Exh. H). Parent did not pay any money towards tuition and is seeking funding and provided testimony regarding his inability to fund tuition and seek reimbursement. (Exh. M, Exh. N and Exh. R, page 6).

Parent submitted Ten-Day Notices on October 1, 2021 for the 2021-2022 school year and on June 16, 2022 for the 2022-2023 school year. (Exh. B and Exh. C). There is nothing in the record to indicate a response. Parent filed a due process complaint on September 27, 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 conceded that FAPE was not provided. (Tr. 24). 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).

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 his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for his 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 Letters. (Exh. B, Exh. C and Exh. 2). There are no allegations of obstruction or that Parent was uncooperative. Although the REDACTED argues that the equities should be changed as the contract was signed prior to the beginning of the school year, it did not provide a legal basis for this argument. (Tr. 51 and Exh. H). Therefore, Parent is entitled to tuition for the 2021-2022 and 2022-2023 school years.

INDEPENDENT NEUROPSYCHOLOGICAL TESTING

Finally, Parent requests an independent neuropsychological evaluation. (Exh. A and Exh. R, page 7). The REDACTED did not object to this request, and it will be so ordered. (Tr. 49-50).

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2021-2022 and 2022-2023 school years.

2. The REDACTED shall fund/reimburse Parent for tuition at the REDACTED for the 2021-2022 school year and 2022-2023 school years within thirty days of receipt of invoice, proof of payment and proof of attendance.

3. The REDACTED shall immediately fund an Independent Neuropsychological Evaluation to be conducted by a licensed evaluator of Parent’s choice at a rate not to exceed reasonable market rate.

4. Parent has withdrawn his remaining claims.

Dated: March 8, 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

2. District IEP, dated January 31, 2022 31 pages Parent Exhibit Number Date Exhibit Name Number of Pages DOE

A. Impartial Hearing Request 09/27/2022 5 pages

B. 10-Day Notice 10/01/2021 1 page

C. 10-Day Notice 06/16/2022 2 pages

D. Individual Education Program 03/11/2022 30 pages

E. Psychoeducational Evaluation 11/3/2021 7 pages

F. Classroom Observation 11/3/2021 3 pages

G. REDACTED Contract 2021-2022 SY 12 pages

H. REDACTED Contract 2022-2023 SY 14 pages

I. REDACTED Program Description Undated 4 pages

J. REDACTED Remote Learning Plan 01/14/2022 2 pages

K. 2021-2022 Class Schedule 03/02/2022 1 page

L. 2022-2023 Class Schedule 09/21/2022 1 page

M. 2021-2022 Tuition Affidavit 06/28/2022 1 page

N. 2022-2023 Tuition Affidavit 09/21/2022 1 page

O. 2021-2022 REDACTED Progress Reports Various 36 pages

P. 2022-2023 REDACTED Progress Reports Various 25 pages

Q. Email Exchange Between Parent and REDACTED 08/18/2021 2 pages

R. Affidavit of REDACTED 02/21/2023 7 pages

S. Affidavit of REDACTED Impartial Hearing Officer None. 02/22/2023 17 pages