New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593051 - NYC: 243511

FINDINGS OF FACT & DECISION

Case No.: 243511

Student’s Name: REDACTED (hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: REDACTED (hereinafter referred to as “Parent”)

School: REDACTED (hereinafter referred to “Private School”)

Hearing Dates: August 11, 2023, September 14, 2023, October 13, 2023

Actual Record Close: November 10, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 11, 2023

For the Student:

REDACTED, Esq., Parent Attorney

REDACTED, Parents Student

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 14, 2023

For the Student:

REDACTED, Esq., Parent Attorney

REDACTED, Parents Student

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 13, 2023

For the Student:

REDACTED, Esq., Parent Attorney

REDACTED, Parents Student

REDACTED, Director of REDACTED

For the Department of Education:

REDACTED, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on December 6, 2022, regarding the 2022/2023 school year. The DPC alleged that the New York City Department of Education (“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 IEP and placement for the 2022/2023 school year. The Parent has requested tuition reimbursement of the unilateral placement of the Student at the Private School during the 2022/2023 school year.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on or about December 12, 2022. A prehearing conference was held on January 23, 2023. Status conferences were held on March 2, 2023, April 5, 2023, May 12, 2023, June 15, 2023 and July 14, 2023 to allow the District to complete their investigation. A hearing on the merits was held on June August 11, 2023, September 14, 2023, and October 13, 2023 (See, Transcripts).^[1] At the hearing, the District presented no documentary or testimonial evidence. The Parents presented exhibits, which were entered into evidence^[2] and presented two witnesses by affidavit. The record closed on November 10, 2023. There were nine extensions of the timelines to allow for settlement investigation and to accommodate witnesses.

FINDINGS OF FACT

The Student was a REDACTED student during the 2022/2023 school year where he was unilaterally placed by his Parent. He is diagnosed with Attention Deficit Hyperactivity Disorder, predominately inattentive presentation, Specific Learning Disorder with impairment in reading and Specific Learning Disorder with impairment in written expression (P-Ex. N).

Between kindergarten and 6th grade, the Student attended public school (P-Ex. O). In the 4th grade, the Student was placed in an Integrated Co-Teaching (“ICT”) class (P-Ex. O). In 5th grade, the Student was reading two grade levels behind his peers and exhibited difficulty with distraction, sitting and completing his homework (P-Ex. O). The Parent had a neuropsychological evaluation conducted on the Student and he was diagnosed with the abovementioned diagnoses (P-Ex. O). The evaluator recommended that the Student attend a specialized school for children with language disorders, however, the Parent kept the Student in the NYC public school for 6th grade (P-Ex. O). The Student attended 6th grade in an ICT class with Special Education Teacher Support Services (“SETSS”) and had a private tutor twice a week who specialized in Orton Gillingham (P-Ex. O). For 7th and 8th grades, the Student attended the REDACTED (P-Ex. O). According to the Parent, he made tremendous progress while attending this school (P-Ex. O). For high school, the Student attended the REDACTED in an ICT class (P-Ex. O). The Student struggled during these years and the Parent hired a private tutor to assist the Student (P-Ex. O). The Student was struggling so the Parent took him out of the REDACTED and sent him to a boarding school (P-Ex. O). For 10th grade, the Student returned to the REDACTED and was placed in an ICT class with SETSS for ELA class (P-Ex. O). The Student regressed academically and started to exhibit social/emotional difficulties so the Parent had a new neuropsychological evaluation performed on the Student in March 2022 (P-Ex. O). The evaluator recommended that the Student be placed in a small specialized high school for intellectually bright students with language based learning disabilities as well as attentional and executive functioning challenges (P-Ex. N). The evaluator also recommended that the Student receive direct multisensory literacy instruction using evidence based programming (P-Ex. N).

The District held an IEP meeting on April 27, 2022 for the 2022/2023 school year (P-Ex. O). The District recommended an ICT class in a community school with SETSS (P-Ex. O). The Parent had provided the District with a copy of the neuropsychological report prior to the IEP meeting (P-Ex. O). For 11th grade, the Parent enrolled the Student at the Private School during the 2022/2023 school year. On September 30, 2022, Parent sent notice to the District of their intent to enroll the Student at the Private School for the 2022/2023 school year (P-Ex. B).

At the hearing, the District did not produce any witnesses to testify nor did they offer any documents into evidence. The Parent produced two witnesses, the mother and the Director of REDACTED in the Cognition and Learning Department at the Private School. The school witness testified in detail about the Private School’s program, the classes the Student took during the 2022/2023 school year and the amount of progress he achieved at the Private School.

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 offer any documentary or testimonial evidence at the hearing. The District has, therefore, failed to meet its burden of proof in this proceeding. Based on all of the evidence above, I find that the District did not provide the Student with FAPE for the 2022/2023 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 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).

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 2022/2023 school year, the burden now shifts to the Parent to prove the appropriateness of the unilateral placement. The Parent presented documentary evidence and informed testimonial evidence in support of their position that the Private School was appropriate (P-Ex. C, F, H, I, J, K, L, M, N, O, P). The evidence established that the Private School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit him to meaningfully benefit from instruction.

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.

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 2022/2023 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that equitable considerations favor the Parent.

ORDER

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

1. ORDERED, that the New York City Department of Education shall reimburse the Parent for the cost of day tuition for the Student’s unilateral placement at the Private School for the 2022/2023 school year.

SO ORDERED:

DATED: November 11, 2023

Marisa Carbone

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

None

PARENT EVIDENCE

A. Ex. Date Description Pages Impartial Hearing Request 12/6/22 4 pages

B. Ten Day Notice 9/30/22 3 pages

C. Program Description Undated 2 pages

D. Tuition Contract 6/12/22 22-23 8 pages

E. Tuition Affidavit 4/4/23 22-23 1 page

F. Student Schedule 22-23 School Year 3 pages

G. Attendance 6/8/23 1 page

H. Report Card, Term 1 22-23 School Year 3 pages

I. Report Card, Term 2 22-23 School Year 3 pages

J. Report Card, Term 3 22-23 School Year 5 pages

K. . Report Card, Term 4 22-23 School Year 5 pages

L. Report Card, Term 5 22-23 School Year 3 pages

M. Report Card, Term 6 22-23 School Year 5 pages

N. Neuropsychological Evaluation 4/20/22 26 pages

O. Affidavit of REDACTED 8/29/23 4 pages

P. Affidavit of REDACTED 8/25/23 10 pages

IHO EVIDENCE

None

Footnotes

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

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