Impartial Hearing Decision

CASE NUMBER: 240094

FINDINGS OF FACT AND DECISION

Case Number: 240094

Student’s Name1: REDACTED, (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED, (“Parent”)

Request Date/Date Complaint Filed: 10/4/2022

Date(s) of Hearing: 2/23/2023, 4/24/2023, 6/2/2023, 6/20/2023, 7/13/2023, 8/16/2023

Actual Record Closed Date: 11/25/2023

Date of Decision: 11/27/2023

Hearing Officer: IHO, Barbara J. Caravello, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Finding of Fact and Decision of Hearing Officer

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 23, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 24, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 2, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 20, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 13, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 24, 2023

For the Student:

REDACTED

REDACTED

REDACTED

For the Department of Education:

REDACTED

Finding of Fact and Decision of Hearing Officer

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC" or “Impartial Hearing Report”) filed on or about December 19, 2022.

The DPC alleges in relevant part that the Department of Education (“DOE” or “District”) denied the Student a free and appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act for the 2022-2023 school year.

Appearances were scheduled for February 23, 2023, April 24, 2023, June 2, 2023, June 20, 2023, July 13, 2023, where only Parent’s counsel appeared. Openings and evidence was held on August 16, 2023, where only Parent’s counsel appeared. On August 16, 2023, Parent’s counsel, both parents and DOE counsel appeared and the hearing was concluded.

Parents were represented by REDACTED. The DOE was represented by REDACTED.

Extensions were requested and granted, it having been determined that there would be no harm to the Student in doing so.

THE DOE’S CASE, PRESENTED

The DOE did not file its own due process complaint or position statement. Neither did the agency offer any evidence or witnesses and made no opening or closing statement. The DOE did not request to cross examine the Parents’ two witnesses who gave affidavit testimony. THE PARENT’S CASE, PRESENTED:

The Parent asserts that the Student was denied a FAPE due to a number of acts or omissions on the part of the DOE. The Parent posits that among these violations is the recommendation of what the Parents consider to be a procedurally and substantially inadequate and inappropriate program. After receiving a school location letter and touring the school Finding of Fact and Decision of Hearing Officer recommended by the DOE, the Parents felt that the school was too large and the other students were not on the same ability level as the Student. The Parents enrolled the Student in the REDACTED school, where they allege that the Student made much progress in all areas. The Parents further claim that they fully cooperated with the District and gave it ample opportunity to provide a FAPE to the Student. Further, the Parents allege that they provided the District with proper notice of their intent to unilaterally place the Student.

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.

ISSUES

ISSUE I:

Did the DOE provide the Student with a free and appropriate public education?

ISSUE II:

Is the current placement at the REDACTED appropriate for the Student?

ISSUE II

With which party does equity lie? Finding of Fact and Decision of Hearing Officer

FINDINGS OF FACT

The Student is REDACTED years old and is alleged to be classified as a student with a Speech or Language Impairment. The Student is also diagnosed with Attention Deficit Hyperactivity Disorder.

Unrefuted and credible evidence tended to show that the program created in the Student’s last IEP was inappropriate for his needs. The available evaluative information was not utilized in creating a program for the Student. As a result, the Student was recommended to attend an ICT program in a public school which did not conform to the recommendations in a neuropsychological report offered by the Parent which described the Student as one who needed small group and 1:1 instruction with a high teacher to student ratio in a full time special education school specializing in the education of students with speech-language learning disorders with similar cognitive abilities.

The REDACTED offers small, structured classroom situations with peers who share a speech language impairment and are taught with the same or similar modalities. There is individual and small group support used withing the classroom setting.

The Parent remained in contact with the District throughout the recommendation and placement process. The Parent toured the placement recommended by the DOE and contacted the District to voice their displeasure after contacting the school and speaking to the administrative contacts there, (Exh B, P 2,3). The decision to unilaterally enroll the Student at REDACTED was communicated to the District within the appropriate time period. Finding of Fact and Decision of Hearing Officer

CONCLUSIONS OF LAW

Denial of FAPE:

The Individuals with Disabilities 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).

The IDEA was legislated to, “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a FAPE is 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,” id. Each disabled student is entitled to an educational program that is reasonably calculated to enable the student to receive educational benefits, Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 995-96 (2017). “The initial procedural inquiry is no mere formality,” Id, 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 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 Committee on Special Education, (“CSE”), through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See Application of Child with a Finding of Fact and Decision of Hearing Officer

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, supra.

Here, the unrebutted testimony of the Parent is that the Parents expressed concerns at the IEP meeting that an ICT class was too large, did not offer the appropriate support and would increase the Student’s social and academic anxiety, (Ex. P1, 2).

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 or 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 Forest Grove v. T.A.., 129 S.Ct. 2484 [2009]; Rowley, at 206-207).

A three-pronged test, generally known as the “Burlington-Carter” test, requires payment of tuition of a non-public school be made by the school district only if it is found that the FAPE was denied the student, the unilateral placement is appropriate and the equity of the case lies with the Parent, School Committee of Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 370 (1985); Florence County School District v. Carter, 520 U.S. 7, 15 (1993).

A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, Finding of Fact and Decision of Hearing Officer

In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); M.P.G. v. N.Y.C. Dep’t. of Educ., 2010 WL 3398256, (S.D.N.Y. 8/27/10); NYS Educ. Law § 4404(1)(c).

The denial of FAPE has not been argued by the DOE. This issue is deemed conceded by the agency. Appropriateness of the current program:

A private placement must be appropriate and if it is not, funding of tuition by the districts may be denied. The parents, however, need not show that the placement furnishes every special service necessary to maximize potential, Frank G. v. Board of Educ. of Hyde Park Cent Sch. Dist., 46 IDELR 33 (2D CIR. 2006), cert. denied, 109 LRP 29770, 552 U.S. 985 (2007); see also, C.B. v. Garden Grove Unified Sch. Dist., 56 IDELR 121 (9th Cir. 2011), cert. denied, 111 LRP 68912, 132 S.CT. 500 (2011). An appropriate program begins with an IEP which: 1) accurately reflects student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child’s special education; 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, Walczak v. Florida Union Free Sch. Dt., 142 F. 3d 119 (2d Cir. 1998), Appeal No 00-005. The DOE did not provide an appropriate IEP and the program it offered was therefor, not appropriate. Further, even were the IEP convincingly argued to be appropriate, the recommended class did not offer the services recommended in the IEP.

This Student is one who can obtain benefit from being among peers who are at the same or similar level in terms of learning disabilities and functioning. There is reason to believe that Finding of Fact and Decision of Hearing Officer a classroom, affording individual and small group education is one that would offer the Student an environment designed to meet this Student’s unique educational needs. REDACTED, the Director of the REDACTED, testifies that the Student is in a classroom containing 11 students with one lead teacher and one teaching assistant. Each classroom has a dedicated Speech Pathologist and Occupational Therapist, combining push-in and pull-out sessions in whole group, small group, dyad and individual sessions, (Ex. O-4).

The school utilizes the Orton-Gillingham method of reading and language instruction, which is a multisensory method using an explicit, structured, sequential systematic, direct, diagnostic and prescriptive approach to reading, (Ex. O-5). The opinion of REDACTED mirrored that of the neuropsychologist who believed that this Student needs a specialized special education program, dedicated to students with language and attentional needs, (ExO-8).

The Student responded to this environment and progressed along all areas, (Ex. O-9-11).

A district is also required to locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private schools located within the district, 34 CFR 300.131 (a). Once a district fails to develop an IEP that makes FAPE available, the proper private placement need only confer some educational benefit to the student, C.B. v. Special Sch. Dist. No. 1, 56 IDELR 187, (8th Cir. 2011); Warren G. v. Cumberland County Sch. Dist., 31 IDELR

27 (3d. Cir. 1999).

There has been no placement offered this Student that provides the proper classroom makeup in terms of student-to-staff ration or peer skill uniformity. As important is the lack of an adequate data-driven plan or provision within the Student’s IEP service recommendation. It is the understanding and belief of the undersigned that such a methodology is not part of the curriculum of the District schools within the City of New York. This blanket policy however, Finding of Fact and Decision of Hearing Officer cannot be utilized to prevent this very necessary service from being delivered to a Student to whom it is essential.

It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring the student to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes “special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as 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. The Student was struggling while attending the public placement and the DOE did not provide a program that would meet the Student’s needs, while significant progress has been shown while attending the unilateral placement.

Equity:

Equity lies with the Parent’s request for relief.

The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of:

1. Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3). Finding of Fact and Decision of Hearing Officer

2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1).

3. Whether the parent’s actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3).

4. Whether the cost of the private placement is unreasonable, Carter, supra.

5. Whether there was a lack of parental cooperation with the school district, ^[2]

Rather than an indication that the Parent failed to cooperate with evaluations, it was the District that failed to timely, appropriately and thoroughly evaluate the Student. The Parent also toured the school that the District recommended within the public school system. The school did not offer any data-driven methodology, which was determined in several evaluations to be necessary for this Student’s success, (Tr. 109-111). The Parent was additionally concerned that the staff was not productively engaged with the students, Id.

The Parent seeks tuition reimbursement and/or funding and it is not the Parent’s burden to show the reasonableness of the tuition. The District did not raise this objection.

The Parent testified that she is obligated to pay tuition at the Student’s current placement, the REDACTED, (Ex. P), despite the outcome of the due process proceeding. The funding and/or reimbursement should not, in this situation be the burden of the family. Finding of Fact and Decision of Hearing Officer

It has been held that where the District failed to provide entitled services, which are then engaged by the Parent, such services must be funded by the District at whatever rate is necessary, In re: Student with a Disability, NYS Educational Agency, 169545, (7/23/2018), finding any standard set for “enhanced rates” irrelevant. For reasons stated herein, I find that the Parent was cooperative with the District and has met all requirements for a finding that equity demands the tuition and/or funding of the tuition be the responsibility of the DOE who did not meet its burden under Prongs I through III of the Burlington-Carter test.

The DOE has clearly not met its burden on any of the three prongs of the BurlingtonCarter test. The DOE is therefore responsible for funding directly to the school and/or reimbursement to the Parents for tuition and all associated fees for the 2022-2023 school year.

ANALYSIS

The failure of the DOE to provide the Student with a FAPE for the 2022-2023 school year entitles the Parents to find a school program that is reasonably calculated to enable the student to receive educational benefits. The IEP was not sufficient to address the needs of the Student and was not based on sufficient evaluative reports

The program that the Student currently attends is entirely appropriate for his needs and offers opportunity for his advancement.

The Parents cooperated with the DOE at all stages and there is no showing that the Parents were motivated by anything but a genuine concern that the District’s placement was not adequate for their child. The Parents are entitled to funding and reimbursement for tuition for this program.

ORDER

Finding of Fact and Decision of Hearing Officer

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered and declared that:

1. The DOE failed to provide a free and appropriate public education to the Student for the 2022-2023 school year.

2. The program that the Student currently attends at the REDACTED is appropriate to the Student’s needs during the 2022-2023 school year.

3. Equitable considerations support the Parent’s claim for reimbursement and/or funding of tuition for the REDACTED.

4. The DOE must fund directly and/or reimburse the cost of tuition and all associated fees due to REDACTED for the entirety of the 2022-2023 school year, minus any amounts which may already be paid through pendency.

5. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: November 27, 2023

Barbara J. Caravello, Impartial Hearing Officer

Finding of Fact and Decision of Hearing Officer

APPEAL RIGHTS

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.

Footnotes

[2] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).