New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591045 - NYC: 241927

FINDINGS OF FACT & DECISION

Case No. City/State: 241927 / 591045

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: September 21, 2023

Actual Record Close: October 10, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: October 24, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE, 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 9, 2022 regarding the 2022/23 school year (P-Ex. A) and amended by DPC dated 10/3/22 (P-Ex.B) ^[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.B). The Parent has requested direct tuition funding for Parent’s unilateral placement of the Student at Private School for the 2022/23 school year. (P-Ex. B; T.pg.64). ^[2]

PROCEDURAL HISTORY

I was appointed IHO on 11/14/22; a Pre-hearing Conference was held on 11/22/22; Pendency Hearing on 12/5/22; and Status Conferences thereafter to allow settlement talks and progress on 1/17/23; 2/16/23; 3/14/23; 4/5/23; 5/10/23; 6/15/23; 7/13/23; 8/7/23, at which time a Hearing was scheduled for September 21, 2023. (T.pg.54-55).

At the September 21st Hearing, the District did not appear and did not present a case with either exhibits or witnesses. (T.pg.54-55). Parent presented exhibits that were entered into evidence and the testimony two witnesses. (T.pg.55-60). ^[3]

Eleven joint/unopposed requests to extend the compliance date were granted. The record closed on October 10, 2023.

FINDINGS OF FACT

Parent testified Student Private School since September 9, 2019. Parent testified she enrolled Student at Private School for the 2022-2023 school year because the school offers a small, calm, highly structured, highly predictable program for children with Autism Spectrum Disorder. Parent testified Private School provides significant supports that have been instrumental in increasing and improving Student’s academic, communication, and social skills. (P-Ex.L).

Parent testified Student is a [REDACTED]-year-old boy diagnosed with Autism Spectrum Disorder and presents with a variety of significant developmental delays and social difficulties. (P-Ex.L).

Parent testified on June 6, 2022, the CSE held an annual IEP review meeting to provide Student with an appropriate educational program and placement for the 2022-2023 school year. The IEP recommended a 15:1 special education class with OT, Counseling, and PCAT in NYC DOE Non-Specialized School. Parent testified she visited the proposed placement and called the school, but was informed by the Assistant Principal of Special Education that there were no vacancies in any of the school’s special education classes for the 2022-2023 school year. Parent reenrolled Student at Private School for the 2022-2023 school year. (P-Ex.L).

Parent testified she could not afford to pay Private School’s tuition based on her income. (P-Ex.L; Ex.M).

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 regarding the 2022/23 school year. Parent’s testimony and claims regarding the denial of FAPE, including the lack of an appropriate placement, were not disputed. 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 Head of School, who testified Private School is a private, independent, coeducational, college preparatory day school. Private School is chartered by the University of the State of New York and accredited by the Board of Regents and is also a member of the Middle States Association of Colleges and Secondary Schools. (P-Ex.K). Private School only has one class per grade with an average of a 10:1 student to teacher ratio. Each classroom is led by a (head) teacher who works collaboratively with a special education teacher, certified school counselor, speech and language therapist, and other professionals lowering the actual staffing ratio to approximately 2:1, and 1:1 if needed, and allowing for daily small group skill instruction and individualized attention. Most of the students are grouped according to their chronological age and corresponding grade level. Occasionally, a class may contain students who are identified according to level of functioning in one or more areas of instruction within the age range of approximately 12-18 months. (P-Ex.K). Private School’s academic curriculum consists of daily English Language Arts (ELA) & Literacy, Math, Social Studies, Science, and Physical Education follows the Common Core State Standards (CCSS) modified for some students based on their academic potential. The Lower School’s academic curriculum focuses on building foundational skills on reading, writing, mathematics, and social and emotional development, to bridge any gaps that students may have. (P-Ex.K). Private School personnel communicate with students’ parents on a regular basis. Families hear from their student’s teachers at least once a week by either email or phone call, depending on their preference. Related service providers consult with parents once per month. If, at any time, a parent would like to have a team meeting, they contact the student’s teacher, and we can have those meetings throughout the year. We provide family support, including but not limited to: sibling support, home-community behavior support, parent education training, and additional counseling or training as needed. (P-Ex.K). Approximately 20% of Private School students present with learning disabilities, speech and language impairments, school related anxiety, depression, and neurological disorders such as ADD or ADHD. Private School employs a fully integrated program providing students with necessary special education and related services within Private School’s mainstream environment. (P-Ex.K). Private School’s Program offers daily individual (1:1) or small group academic remediation where a student is paired with a learning specialist based upon their personal learning profile. These instructions are provided through a multi-sensory approach, within a structured learning environment in regular classes. In addition to daily academic remediation sessions, all special education students receive daily small group tutorials, the purpose of which is to assist with homework assignments and preparing for next day classes. The Program also provides related services of Speech and Language Therapy (“SLT”), School-Based Counseling, and Individual and Group Social Skills Training. Testing accommodations such as extended time or separate location and organizational and planning meetings are available as well. (P-Ex.K). Private School provides a specialized reading program. The reading program supports individual fluency while fostering small group and whole class instruction to strengthen comprehension and written response skills. (P-Ex.K). Program teachers utilize a multi-sensory teaching approach. They push-in and pull-out throughout the school day in order to provide students with individualized supports and multi-sensory instructional strategies. These include but are not limited to: clarification of written instructions, explicit modeling, use of graphic organizers, verbal prompting and redirection, sentence frames, step by step modeling, defining new vocabulary words and visuals, oral rehearsal and identification of significant text details by highlighting key information and providing differentiated worksheets. (P-Ex.K; E). Head of School testified Private School was an appropriate placement for Student. Head of School testified Student is a student with the disability classification of Autism. Private School’s Program has been providing Student with a small and highly structured therapeutic educational setting with individual and group counseling supports, speech and language therapy, and intensive social skills training. Private School’s fully integrated class has allowed Student to progress academically and emotionally within private School’s mainstream environment. (P-Ex.K). During the 2022-2023 school year, Student received academic instruction in a classroom of 8 students, 3 of whom (including Student) are eligible for special education services. Student was grouped with other Program students by age range (ages and academic functioning levels falling within a span of 18-24 months). Student’s academic, social, and emotional skills were similar to the skills of the other Program students enrolled. The other 5 students in Student’s class were typically developing peers who provided him with positive role models and extensive mainstreaming opportunities. (P-Ex.K).

Student received daily 1:1 and small group instruction with Program special education teachers. (P-Ex.K). Head of School testified that given Student’s ongoing social/emotional struggles, the small class size along with the individualized 1:1 and small group instruction has been necessary for Student to focus on academic assignments and benefit from learning. He also receives supplemental related services and testing accommodations. (P-Ex.K). Head of School testified Student has been able to maintain slow but steady progress as a result of daily 1:1 instruction with a special education teacher, consistent individualized counseling supports, and intensive social skills training. He has the benefit of further mainstreaming opportunities when he is attending classes in which other students attend - such as Art, Gym, concerts and school trips (if scheduled), other activities and Lunch. While those classes are larger, they never exceed 15 students. (P-Ex.K). Head of School testified Student’s counseling and social skills sessions with the certified school counselor is a necessary therapeutic component for his academic and social/emotional success. During the 2022-2023 school year, Student received counseling three times per week and made progress. Student received speech and language therapy one time per week individually and two times per week in a group of three students. (P-Ex.K). Head of School testified that despite the significant progress, Student continued to require a small, structured, therapeutic, supportive and individualized learning environment. (P-Ex.K).

Parent testified Private School is an appropriate program. Student is in a small and supportive class where he receives individualized instruction from his classroom teacher and is kept safe and on task. He also receives supplemental services of speech therapy and counseling and is able to participate in mainstream activities. Parent testified she has seen great progress in Student’s academics and social skills throughout his enrollment at Private School. (P-Ex.L).

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 8/23/22. (P-Ex.C). Student was enrolled at Private School on 9/12/22. (P-Ex.J). 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 could not afford Private School tuition and is entitled to direct tuition funding for the 2022/23 school year. (P-Ex.L).

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.

SO ORDERED

DATED: October 24, 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. Impartial Hearing Request 09/08/22 6 pages

B. Amended Impartial Hearing Request 10/03/22 7 pages

C. Ten Day Notice 08/23/22 3 pages

D. Findings of Fact and Decision (IHO Case No. 188379) 06/23/20 9 pages

E. Private School Program Description UNDATED 8 pages

F. Enrollment Contract 09/13/22 4 pages

G. Private School Class Schedule 2022-2023 1 page

H. Private School Attendance Record 06/16/23 1 page

I. Private School Report Card June 2023 4 pages

J. Private School Tuition Affidavit 09/12/23 1 page

K. Affidavit of Head of School 09/18/23 11 pages

L. Affidavit of Parent 09/18/23 3 pages

M. 1040 Parent’s Tax Return 2022 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.