Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 240107

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: August 14, 2023 and September 8, 2023 Record Closed Date: September 8, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the August 14, 2023 Hearing For The [REDACTED] [REDACTED], Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Director

Names and Titles of Persons who appeared at the September 8, 2023 Hearing For The [REDACTED] [REDACTED], Hearing Representative

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Educational Director

I. Introduction and Procedural History

On December 19, 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 Parent (“Parent” or “Parents”). A pre-hearing conference was held on December 27, 2022, status conferences were held on April 3, 2023, May 4, 2023, June 6, 2023 and July 10, 2023 and hearings were held on August 14, 2023 and September 8, 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 September 8, 2023.

II. Background

Parent filed a due process complaint on October 3, 2022, alleging a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 school year and requesting reimbursement for tuition at [REDACTED]. (Exh. A). The [REDACTED] submitted evidence but did not otherwise put on a case. (Exhibits 1-2). Parent provided direct testimony by affidavit, and the [REDACTED] was provided with the opportunity to cross-examine the witnesses. (Exh. K. Exh. L and Exh. M).

III. Discussion

FINDINGS OF FACT AND DECISION

Student has been diagnosed with ADHD, Anxiety Disorder and Disruptive Mood Dysregulation Disorder. (Exh. A and Exh. L, page 2). An Individualized Education Program (“IEP”) was developed for Student on or about May 25, 2021. (Exh. 1). Other than submitting the IEP, and Prior Written Notice, the [REDACTED] did not otherwise defend its recommendations. Parent attended the IEP meeting, received a school location letter for the same school recommended previously and rejected, and visited the school, but did not think it was appropriate. (Exh. M, page 2).

Student attended [REDACTED] for the 2021-2022 school year. [REDACTED] is a program of self-contained classrooms for children with learning disabilities, language-based disabilities and/or attention deficit disorders and is housed in mainstream schools. (Exh. K, page 1). There were 90 students ages 5-14, all with special needs during the 2021-2022 school year. (Tr. 39-40). Professional development is provided to all staff. Students participate in mainstream activities. (Exh. K, page 2). Related services are provided by licensed providers. (Exh, K, page 2). The admission process includes a review of school, parent and provider information. They meet with Parent and Student. They review the [REDACTED]’s IEP. Students are grouped by level of functioning and age. (Tr. 40-1). The teachers in the classroom are certified. (Tr. 49).

At the beginning of the school year, the staff worked to identify Student’s needs by reviewing records and conducting assessments. (Exh. L, page 2). Student was in a class with 12 students, one teacher and 2 assistant teachers; the class was grouped by functioning level, and smaller homogeneous groups were used. (Exh. L, page 2). Student was in a mainstream math class and provided support in that classroom. (Transcript and Exh. L, pages 2-3). Support was also provided to address Student’s anxiety and ADHD, and a class behavior modification program was used. (Exh. L, page 3).

Student’s class schedule included math, reading, English Language Arts, music and singing, homework review and language vocabulary and grammar. (Transcript, Exh. I and Exh. K). He received related services including counseling and occupational therapy. (Transcript and Exh M, page 3). Student received individual occupational therapy, 1 x 30 minutes per week, and individual counseling 2 x 30 minutes per week. (Exh. K, page 3). Student also participated in a social skills class. (Exh. K, page 2 and Exh. L, page 2). Student received 1:1 support and small group instruction throughout the school day and modifications and accommodations were provided to help meet Student’s social and academic needs. (Exh. J, page 4 and Exh. L, page 6). Student’s schedule included a significant religious component. (Exh. I). The uncontroverted evidence showed that approximately 31 percent of Student’s day consisted of religious studies. (Exh. K).

Student made progress during the 2021-2022 school year. (Exh. J). Student’s comprehension skills improved, and his reading level went from an S to a V on Fountas and Pinnell. (Transcript, Exh. J and Exh. L). Student showed improvement with his attention and anxiety but continues to need prompting and redirection. (Transcript and Exh. J).

Parent signed an enrollment contract on September 3, 2021. (Exh. D and Exh. M, page 2). Parent signed a related services enrollment contract on September 22, 2021. (Exh. E). The contract provided for withdrawal if an appropriate placement was located prior to September 30, 2021. (Exh. D, page 2 and Exh. M, page 2). Parent did not pay anything towards either the enrollment or the related services contract. (Exh. F and Exh. M, page 2). Parent submitted tax documents to show her inability to fund tuition and seek reimbursement. (Exh. F).

Parent sent a Ten-Day Notice on or about August 16, 2021 notifying the [REDACTED] of her concerns and her intent to unilaterally place Student and seek funding. (Exh. B). Parent sent a follow up letter on November 1, 2021. (Exh. C). There is nothing in the record to indicate a response. Parent filed a due process complaint on October 3, 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 the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, 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] submitted evidence, but did not provide testimony, or otherwise argue that the IEP provided FAPE for the 2021-2022 school year. (Transcript). Thus, the [REDACTED] has not met its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

FUNDING FOR STUDENT’S UNILATERAL PLACEMENT

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).

Although the [REDACTED] argues, in a general sense, that Parent has not met her burden of proof, no specifics were provided were provided in support of this argument. (Transcript). Parents have shown, through testimony, and documentation, that [REDACTED] understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parents has met their burden of proof to show the appropriateness of the unilateral placement and are entitled to funding.

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 Letter. (Exh. B, Exh. C and Exh. M). The uncontroverted evidence is that Parent was cooperative. (Exh. M). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to funding for related services and secular tuition at [REDACTED] for the 2021-2022 school year.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] failed to provide a Free and Appropriate Public Education for the 2021-2022 school year..

2. The [REDACTED] shall fund related services and 69% of the tuition at [REDACTED] for the 2021-2022 school year within thirty days of receipt of this Findings of Fact and Decision.

Dated: September 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 [REDACTED]

1. IEP, dated 5/25/2021, 18 pages

2. Prior Written Notice, dated 6/3/21, 11 pages

Parent Exhibit Date Title # of Pages A 10-03-2022 Due Process Complaint with Receipt 05 B 08-16-2021 Ten Day Notice Letter with E-Receipt 04 C 11-01-2021 Parent Follow Up Letter with E-Receipt 05 D 09-03-2021 Enrollment Contract 02 E 09-22-2021 Related Services Contract 01 F 07-21-2022 Tuition Affidavit 01 G 02-15-2022 Parent Tax Documents (2020) 02 H Undated 2021-2022 Final Attendance 01 I Undated Class Schedule 02 J 05-01-2022 Progress Report 04 K 08-07-2023 Testimony Affidavit of [REDACTED] 03 L 09-07-2023 Testimony Affidavit of [REDACTED] 06 M 09-07-2023 Testimony Affidavit of [REDACTED] 03

Impartial Hearing Officer

None.