New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589843 - NYC: 240852

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 240852

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

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: October 27, 2022

Hearing Dates: April 3, 2023

Actual Record Close Date: April 20, 2023

Decision Date: May 4, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 3, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Head of School

For the Department of Education:

District Representative - NONE

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about October 27, 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 not providing an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School, as well transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on November 4, 2022. A prehearing conference was held on December 5, 2022, to discuss the issues in the case, however the District did not appear. After several status conferences and a lack of an update on the investigation from the District, a hearing was scheduled for April 3, 2023 (See, Transcripts). ^[2] The District did not appear on April ^[3], 2023. The Parent presented exhibits 3 and two witnesses. The record closed on April 20, 2023. There were approximately four extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old student who attends the Private School during the 2022/23 school year (P-Ex. A). The Student is diagnosed with Autism (P-Ex. A). The Student was described as struggling in the areas of reading comprehension, verbal reasoning, math, sensory integration, social skills, language impairments and developmental delays (P-Ex. A).

The Parent noticed that the Student had deficits as well as a speech delay when the Student was 2 years old (T. 48-49). The Student was referred for Early Intervention and received services (T. 50). She was originally diagnosed with PDD-NOS and then diagnosed with Autism (T. 51). Parent participated in an IEP meeting by phone, on or about May 24, 2022 (T. 51). At the meeting the Student was recommended for a 15:1 special education classroom (T. 51-52). The Parent did not agree and asked about the smaller class setting (T. 53). The Parent was concerned that the classroom was too big and the Student would be distracted (T. 53). She voiced her concerns at the meeting, but she was told that the Student should give it a chance and that the smaller class would be too restrictive (T. 53). The Parent received a school location letter and IEP about a month and a half after the meeting (T. 54). The Parent called the recommended the school but had difficulty contacting anyone (T. 55). When she finally reached someone at the school, she had to send them a copy of the Student’s IEP (T. 55-56). She was told that there was one spot available but was only able to visit the school closer to the beginning of the school year (T. 56-57). After the visit, the Parent did not believe the program at the location was appropriate as the classroom itself appeared to be too small for 15 students and five to six adults (T. 57-58). The Parent observed a lot of walking, standing up, sitting back down, and the Parent believed that it would be intimidating for the Student (T. 58). The Parent spoke with the Assistant Principal about a smaller classroom and informed the District about her concerns in a letter (T. 59-60; P-Ex. C). She did not receive a response from the District (T. 60-62).

The Parent unilaterally placed at the Private School for the 2022/23 school year, where she is doing well, not having behavior issues and is making friends (T. 62). Academically, she is doing well and the program is continuing to help her develop (T. 63). Parent signed a contract and has paid small amounts toward tuition, but has not been able to keep making payments because she was REDACTED (T. 63-64; P-Ex. I; N).

CONCLUSIONS OF LAW

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

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.

Here, the District failed to appear or present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2022/23 school year. Based on the uncontroverted evidence in the record, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (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; 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).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must 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.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

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). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Head of School at the Private School testified regarding the Private School and the Student (T. 68). Her duties include all educational and business aspects of the school, including hiring and training staff, educational programing, and admissions (T. 69). There is an extensive amount of training during a two-week orientation at the beginning of the school year, weekly division meetings, special needs meetings, and all employee meeting every two weeks (T. 70). All teachers are trained on how to work with special needs students by specialists, the Head of School and other members (T. 70).

The Private School is an independent college preparatory school (T. 70). Within the school they have a program for college bound students with learning differences (T. 71; P-Ex. J). It is a mainstream program that provides extensive services, modifications and accommodations (T. 71). Special education students are placed with typical peers, work 1:1, or in a small groups with a special education teacher and work is modified (T. 71). The private School follows NYS standards (T. 96). Speech therapists, counseling, social skills training are incorporated into the program (T. 71). There are no more than 14 students in each class (T. 71).

The Student is in 11th grade and has been known to the Private School since kindergarten (T. 72-73). The Student was described as being on the spectrum, shy but bright, strong willed, with a lot of capabilities (T. 73). The Student struggles with abstract concepts so they provide her with visuals, use concrete language, incorporate social skills training, provide a manageable amount of work, and checklists (T. 73, 90). These struggles are similar to other students who attend the Private School (T. 74). For the 2022/23 school year, the Student receives core classes, and within that schedule, she receives 1:1 push in or pull out services with a special education teacher and small group instruction (T. 74). She also has counseling and speech and language therapy (T. 74). The Student’s largest class is 12 students, however for math, English, and history, there are five students (T. 75-76). If the class was labeled [Redacted], that meant a special education teacher pushed into the classroom (T. 76; P-Ex. K). Additionally, the students in the special education program receive an additional class at the end of the day for extra support for any classes they missed that day (T. 93-94; P-Ex. K).

The Head of School testified regarding the English and writing class (T. 80-81). The Student has made progress in English (T. 81). She is more confident in her ability to participate, remembers the strategies taught, uses checklists, works really hard, asks a lot of questions, participates, takes notes, and looks for evidence in texts (T. 81). At the beginning of the school year, she entered at a high 9th grade, low 10th grade level and at the time of the hearing, she was at a middle 10th grade/approaching high 10th grade level in comprehension and decoding (T. 81-82). The Student’s Math class is similar to her other classes, in that at times the Special Education Teacher pushes in to the class (T. 82). In math they worked on advanced equations, formulas, analyzing, and with the Student they worked on taking notes, knowing which formula to use, breaking down the material, and providing step by step instructions (T. 82). At the beginning of the school year, she was functioning at a high 9th grade/low 10th grade level, and at the time of the hearing she was at a mid 10th grade level (T. 83). The Student has made progress with the modifications, has increased her ability to handle more difficult work, and is able to use the strategies taught (T. 83-84).

The Student also receives group counseling and social skills training to address her social emotional needs (T. 85, 86-87). They work on social conversations and she has been involved in after school activities (T. 85). The Student also receives speech language therapy (P-Ex. K). With respect to the student’s progress at the Private Schools, 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 however, as a result of the special education methods and supports provided, the Student made progress, academically and socially and emotionally. The Private School provides six progress reports per year which are written collaboratively by the teachers (T. 95). They provide assessments at the beginning of the year and benchmark assessments (T. 95). As indicated above, the Student made progress in her academics and socially. Based on all of the above, I find that the Private School was an appropriate placement for the Student 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). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. In contrast, the District ignored the Parent’s concerns and failed to communicate with the Parent after they expressed their concerns.

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 the 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

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

ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2022/23 school year; and provide transportation.

SO ORDERED

DATED: May 4, 2023

Vanessa M. Gronbach

Vanessa M. 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.

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. Due Process Complaint 2/15/22 8 pages

B. FOFD 10/28/22 20 pages

C. Ten Day Notice 8/2/22 4 pages

D. Pendency Order 12/9/22 6 pages

E. Neuropsychological evaluation 4/2021 15 pages

F. Progress Report 1 10/2022 5 pages

G. Progress Report 2 11/2022 5 pages

H. Report Card 1/2023 5 pages

I. Private School Contract 9/12/22 4 pages

J. Private School Program Description 2022/23 8 pages

K. Private School Schedule 2022/23 1 page

L. Attendance 3/21/23 1 page

M. Affidavit of Payment 3/23/23 1 page

N. Proof of Payment various 4 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

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

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