Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the PARENT and GUARDIAN of [REDACTED],

Petitioners,

Hearing Officer: Michael Lazan v.

Case No: 591289

[REDACTED] CITY SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a student who has been determined to be eligible for services. This proceeding relates to the appropriateness of the special education services provided by the [REDACTED] City School District (“school district” or “Respondent”) to the student at issue (“Student”) during the 2020-2021, 2021-2022, and 2022-2023 school years. A due process complaint (“Complaint”) was received by Respondent pursuant to New York State Education Law and Section 504 of the Rehabilitation Act of 1973 on November 15, 2022. The matter proceeded to hearing on March 28, 2023 and April 24, 2023. The names of witnesses and a description of the documents in evidence are referenced in the transcript. Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 1, 2) and to allow this IHO to write this decision, multiple timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 3).

FACTS

The Student is eligible for services as a Student with a learning disability. The Student is better in math than in reading or writing, and has been diagnosed with dyslexia and dysgraphia. The Student’s reading level is approximately two grades below his grade level. Tr. 28, 160. A main issue for the Student is attentiveness. The Student may drift off into deep thinking requiring redirection and physical prompting. The Student has poor reading skills, inattentiveness and off-task behaviors which significantly impact his ability to learn the material within the core subjects. Tr. 84-92. The Student needs specially designed instruction as part of his school day. Tr. 130, 160. The Student also requires curricular modifications, prompting, and repetition. The Student has been diagnosed with developmental coordination disorder, a language disorder, and central auditory processing disorder. Tr. 176.

During the 2020-2021, 2021-2022, and 2022-2023 school years, Petitioner enrolled the Student at [REDACTED]. While in the class, the Student had access to assistive technology and books on tape. Tr. 28. The Student also has access to graphic organizers. Tr. 44. Other accommodations included tests administered in a location with minimal distractions, extra time, presentation of a test in smaller segments, directions read, and a waiver of spelling requirements. Tr. 47. The Student struggled in some academic areas during his time at [REDACTED]. Others in the class were also struggling in academic areas. Tr. 28.

Prior to November, 2021, the Student was eligible for “equitable services” as a private school student under the category “multiply disabled.” An evaluation was conducted of the Student in November, 2021. The Student was found to be functioning with an IQ of 91, in the average range, though his working memory was measured in the very low range. Tr. 84. The Student also exhibited a relative weakness in processing speed. Tr. 85. In academic measures, the Student’s writing and reading scores were scored below level. The Student’s fluency and reading comprehension were scored in the low range. The Student had issues with decoding because he tended to read quickly without pausing to spend the time to decode. On the BASC-3 and the Connors-2 scales, the Student did not exhibit any externalizing behaviors as in difficulty following the rules, aggression, and did not present with any depression, somatic complaints, or health-related complaints. However, the scales revealed a significant or a clinical deficit in school problems. The Student also presented with at-risk concerns in attention problems, adaptive skills, adaptability, social skills, leadership skills, study skills, executive functioning, peer relations, and functional communication. Tr. 84-92.

The Student’s eligibility category was changed to learning disabled at the November, 2021 IESP meeting. Tr. 29-30, 107-108. At the meeting, the Student’s teacher expressed concern that the Student was struggling to read. Tr. 28. The team decided to add a second resource room session per day, for thirty-five minutes each. The team was influenced by the fact that the Student was getting outside support through [REDACTED] and was benefiting from that, from that program. At the meeting, the parent repeated her contention that indicated that she wanted the resource room services to be provided at the nonpublic school. However, it was understood at the meeting that resource room services would be delivered at a [REDACTED] public school. The school district was to provide transportation to and from the [REDACTED] Public School. Tr. 35-36. The team agreed with the recommendation for speech and language therapy for small group for one time a week for thirty minutes, and individual three times a week for thirty minutes. Speech and occupational therapy were both being provided at [REDACTED]. Tr. 31.

The Student received daily after-school help from October, 2022 to March, 2023. The Student was taught by a 1:1 reading tutor for thirty to forty minutes. These services were not delivered to the Student pursuant to an IESP or IEP. During the lessons, the Student would take numerous breaks so by the time the tutor would “get going,” the Student would be exhausted. Tr. 128-129, 181. The Student has traveled to [REDACTED] for one hour of tutoring, twice weekly during the last several years. He started at about the time of the COVID shutdown. The Student has made less progress than is typical. Tr. 168. In person, the Student does better, but he still fatigues during the instructive process.

During the 2022-2023 school year, the school district sought to deliver the Student’s resource room services at a location that close to the Student’s nonpublic school. Respondent also offered to provide those services after the school day at [REDACTED]. Tr. 191. [REDACTED] public schools are still in session at that time. Tr. at 37. The plan was to have the Student complete his entire school day at [REDACTED], and then be bussed to a [REDACTED] public school down the street for “a mile or two.” Tr. 37. He was then to be sent from the [REDACTED] public school to his residence. Tr. at 38.

CONCLUSIONS OF LAW

In New York State, the burden of persuasion in special education cases is on the school district except for the second criterion in cases for tuition reimbursement or payment. NY Ed. L. 4404(1).

Under federal law, all school districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA. The services plan provisions under federal law also clarify that “[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” 34 C.F.R. Sect. 300.137(a).

Separate from the services plan envisioned under the IDEA, New York requires a school district of location to review, on request, a parental request for “dual enrollment” services (for students attending private school) and develop an IESP “in the same manner and with the same contents as an IEP.” Educ. Law Sect. 3602-c(2)(b)(1).  For requests pursuant to Sect. 3602-c, the CSE must assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.

1. Location of Services In interpreting a prior version of Sect. 3602-c, the New York Court of Appeals addressed the question of whether a school district must provide special education programs and services to a student with a disability at the nonpublic school a student attends. The court found that the location in which services are provided to a parentally-placed nonpublic school student with a disability pursuant to Sect. 3602-c should be determined based on what is appropriate to address the individual educational needs of the student, with consideration given to least restrictive environment (“LRE”) principles. Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 183-88 (1988). Wieder establishes that there is no requirement that Sect. 3602-c services educational services must be provided at a student's nonpublic school. It also establishes that Sect. 3602-c does not require that the services must be provided at a public school. The main question posed is what the educational needs of a student require. Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289, 293–94 (2010). The time and place of the services must not be unreasonable. SRO Appeal No. 17-034.

During the COVID-19 pandemic, [REDACTED] Public Schools provided students with virtual instruction. The Student was therefore offered virtual resource room instruction during part of the time period associated with the pandemic. The record suggests that the Student used the video-based resource room services that were offered to the Student during this time period. Tr. 63, 187. Accordingly, any argument that the location of the resource room services was inappropriate during this time period must fail because services were delivered virtually.

The record suggests that educational services were also provided to children “in-person” for at least part of the 2020-2021 and/or 2021-2022 school years. During this time period, the Student would have had to travel to a [REDACTED] public school from [REDACTED] in order to access his resource room instruction. However, the IESPs in the record, and the other evidence before me, do not establish how that access would have occurred. There is nothing in the IESP to practically explain how the Student could have gone to resource room instruction at a [REDACTED] public school and also attend [REDACTED] full time. There was also no clear testimony that, during the 2020-2021 and 2021-2022 school years, the chosen [REDACTED] public school was reasonably convenient to the Student’s nonpublic school, or that the services were offered after school.

However, during the 2022-2023 school year, Respondent offered a different approach. The recommendation was for resource room services at [REDACTED]. Petitioner argued that the Student does not fare well during transitions. However, after the school day, there was no pressure to fit the resource room instruction into a tightly packed schedule, and no need for a quick transition from the private school to the public school and then back to the private school. Moreover, the record suggests that the Student’s issues with transition are a function of unexpected changes, not a permanent change in routine.

Petitioner also contended that the Student was exhausted at the end of the school day. However, the arrangement proposed by Respondent is the same kind of arrangement that the parents themselves used when they chose to have the Student be tutored at [REDACTED].

Petitioner also contended that the resource room instruction would get in the way of the Student’s extracurricular activities. Petitioner suggested that these activities would be difficult to access if the Student were to go to a [REDACTED] Public School after school each day. Petitioner argued that Section 3602-c does not grant any school district the right to unilaterally remove a student from the nonpublic school environment through an IESP.

However, Petitioner was apparently able to manage the Student’s schedule in such a way that he could be tutored at [REDACTED] after school and also participate in extracurricular activities. Moreover, Petitioner has presented me with no authority to suggest that extracurricular activities alone should drive the location of Sect. 3602-c services, though extracurricular activities can be deemed to be relevant for LRE considerations. As a result, I decline to find Respondent in violation of state law during the 2022-2023 school year because of the location of the recommended resource room services.

2. Appropriateness of the IESPs.

The Student’s IESPs recommend resource room services at a [REDACTED] Public School. Petitioner has rejected this offer. However, as [REDACTED] pointed out, intensive reading instruction within the large class would be difficult for the Student, whose reading needs, including with respect to assistive technology, are best addressed in a pull-out setting. Tr. 99-100. Indeed, Petitioner’s witness, [REDACTED], said that a resource room recommendation could be appropriate for the Student. Tr. 173. Moreover, the services that the parents are seeking reimbursement for, i.e., tutoring at [REDACTED], are services that are similar to the services that were offered by the school district, i.e., after-school help in reading.

Petitioner also contended that the proposed resource room instruction was not coordinated with the Student’s general education program. However, Petitioner was not clear on what kind of coordination was necessary. Petitioner also contended that the school district proposal is not consistent with the mandate to provide students with instruction in the least restrictive environment. However, Petitioner disregards the fact that the Student’s entire school day is with general education students at [REDACTED].

Petitioner also contended that the Student needs specially designed instruction or an aide inside general education as part of his regular school day at [REDACTED]. Petitioner contended that there are certain necessary elements of the Student’s program, such as curricular modifications, prompting, repetition, and specially designed instruction, that simply cannot be implemented in a stand-alone resource room. However, the record indicates that [REDACTED] is implementing these kind of accommodations in its general education classes, and there is no statement or testimony from any teacher from [REDACTED] to the effect that a co-teaching arrangement is necessary for the Student. Tr. 127-128. These claims must be dismissed.

3. Section 504

Petitioner argued that general education students can avail themselves of a direct consultant teacher option in [REDACTED] Public Schools, and that this option is not available to special education students. The statutory purpose of Section 504 of the Rehabilitation Act, 29 U.S.C. Sect. 794 et seq., is like that of IDEA. However, the Rehabilitation Act is broader in scope. Muller ex rel. Muller v. Comm. on Special Educ. of the E. Islip Union Free Sch. Dist., 145 F.3d 95, 100 n. 2 (2d Cir.1998). The Rehabilitation Act provides that “no otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. Sect. 794(a). There are certain similarities between IDEA cases and Section 504 cases. Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014) (ruling that the fact that the district provided FAPE under the IDEA foreclosed claims that school district denied a FAPE under Section 504); Eddins v. Excelsior ISD, No. 9:96-CV-108, 1997 WL 470353, at *1 (E.D. Tex. Aug. 6, 1997)(noting that because the IDEA and Section 504 establish the same substantive rights, the district's compliance with the IDEA brought the district into compliance with the education requirements of Section 504); W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995), abrogated by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d Cir. 2007)(“there appear to be few differences, if any, between IDEA's affirmative duty and Section 504's negative prohibition.”).

Petitioner did not present any authority to suggest that the federal anti-discrimination provisions contained in Section 504 have been interpreted to require New York school districts to go beyond the requirements of Sect. 3602-c in providing services to nonpublic school students under New York State law. Petitioner also did not show that the Student needed a co-teaching arrangement, or that the Student would have been provided with a co-teaching program were he to be enrolled in [REDACTED] Public Schools. Indeed, no teacher from [REDACTED] was called as a witness to establish that the Student needed co-taught classes during the school day. Moreover, Petitioner did not show that the Student was the same kind of student, with the same kind of needs, as the students who were attending co-taught classes in [REDACTED]. In fact, there is virtually no testimony about the availability of co-taught instruction for other students in the city of [REDACTED]. There is also virtually no testimony to explain how lessons are delivered in such classes. These claims must be dismissed.

REMEDY

As relief, Petitioner is seeking reimbursement for services delivered to the Student during the time period when the school district should have offered the Student more accessible resource room services. When school districts deny students a FAPE, courts have wide discretion to ensure that students receive a FAPE going forward. As the Supreme Court has stated, the statute directs the Court to “grant such relief as [it] determines is appropriate.” School Committee of the Town of Burlington v. Dep’t of Education, Massachusetts, 471 U.S. 359, 371 (1985). The ordinary meaning of these words confers broad discretion on a hearing officer, since the type of relief is not further specified, except that it must be “appropriate.”

Respondent may be required to pay for educational services obtained for a student by a student’s parent if the services offered by Respondent are inadequate or inappropriate (“first prong,”) the services selected by the parents are appropriate (“second prong”), and equitable considerations support the parents’ claim (“third prong”), even if the private school in which the parents have placed the child is unapproved. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). On the second prong, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2d Cir. 2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); Reid v.

Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (holding that, in fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”].

There is ample support in the record to establish that the Student’s services at [REDACTED]. [REDACTED], the specially designed program at the school focuses on reading, which is the Student’s main deficit area. [REDACTED] testified without rebuttal that the Student has made progress in the program. There is no argument that the tutoring services were unprofessional or inappropriate. I will therefore order that Petitioners be reimbursed for all after-school tutoring services that were provided to the Student during the 2020-2021 and 2021-2022 school year, provided that the services were delivered during a week when resource room services were to be delivered to the Student in-person, at a [REDACTED] public school.

ORDER

As a result of the foregoing:

1. Petitioner shall be reimbursed for all after-school tutoring services that were provided to the Student during the 2020-2021 and 2021-2022 school year, provided that the services were delivered during a week in which resource room services were to be delivered to the Student in-person at a [REDACTED] public school;

2. All other requests for relief are denied.

Dated: August 22, 2023

ACRD: August 22, 2023

Michael Lazan

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.

Joint Exhibits In Evidence

A 01/02/2020 Assistive Technology Evaluation Referral Form

B 01/02/2020 Related Service Evaluation Request Form

C 02/25/2020 Notice of Meeting forwarded to [REDACTED]

D 02/25/2020 Notice of Meeting forwarded to Parent/Guardian

E 04/27/2021 Report of [REDACTED]

F 05/17/2021 Special Education Summary

G 05/20/2021 Correspondence to Parent/Guardian

H 07/14/2021 Special Education Summary

I 07/16/2020 Occupational Therapy Summary

J 08/06/2020 CSE Meeting Minutes

K 08/06/2020 Special Education Summary

L 09/09/2020 Consent Form for Re-evaluation

M 09/09/2020 Correspondence to Parent/Guardian

N 09/09/2020 Notice of Meeting

O 10/07/2020 Related Service Evaluation Request Form

P 10/23/2020 IEP or IESP

Q 10/23/2020 Correspondence to Parent/Guardian

R 10/23/2020 Medicaid Consent form

S 10/18/2021, 10/25/2021 Psycho-Educational Evaluation

T 11/01/2021 CSE Meeting Minutes

U 11/01/2021 Correspondence to Parent/Guardian

V 11/01/2021 Special Education Summary

W 11/04/2021 E-Mail from [REDACTED]

X 11/06/2020 Special Education Summary

Y 12/05/2019 Special Education Summary

Z 12/13/2019 Consent Form for Re-evaluation

AA 12/13/2019 Correspondence to Parent/Guardian

BB Amended Due Process Complaint Notice

CC IEP Planning Sheet

DD Initial Assistive Technology Evaluation

EE IXL Diagnostic Plan – Language Arts

FF IXL Diagnostic Plan - Math

GG Report of Neuropsychological Evaluation

HH Parent Request for IESP

II Progress Report

JJ Student Cumulative Summary