New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593291 - NYC: 243676

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 243676

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: December 13, 2022

Hearing Dates: June 6, 2023

Actual Record Close Date: June 13, 2023

Decision Date: June 27, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 13, 2022 and amended on March 29, 2023, regarding the 2020/21, 2021/22, 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 failing to provide an appropriate program and placement for the three school years (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School for the 2022/23 school year (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 24, 2023. A prehearing conference was held on February 10, 2023, to discuss the issues in the case. At that time a District Representative informed us that the matter was under investigation (See, Transcripts).^[2] Status conferences were held in March and May where the matter remained under investigation and a hearing was scheduled. A hearing was held on June 6, 2023, and concluded in one day.

The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on June 13, 2023. There were three extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old, 4th grade student for the 2022/2023 school year (P-Ex. L). The Student is classified as a student with a Learning Disability (P-Ex. L). The Student is diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD); and Specific Learning Disorder with impairment in Written Expression, Reading; and Math (P-Ex. K-2). The Student was described as hardworking and motivated to learn, however she has had a long history of struggling academically in reading, writing, and math, as well as emotionally with low selfesteem (P-Ex. L-2).

The Student was referred for special education supports in kindergarten due to concerns with reading and difficulties in math (P-Ex. L-2). The Student was recommended for an ICT class program in 1st grade but continued to struggle (P-Ex. L-2). In 2nd grade, the Parent shared their concerns and the Student was recommended again for an ICT class program (P-Ex. L-2). The Student continued to struggle during second grade (2020/2021) (P-Ex. L-2). In the Fall of third grade (2021/2022), the Student’s teacher reported that she was struggling significantly in reading, writing, and math (possibly dyslexia), and with her self-esteem (P-Ex. L-3). Based on this, the Parent had the Student privately evaluated in January 2022 (P-Ex. B; L3). The neuropsychological evaluation recommended placement within a small, full-time special education setting for students who have average to above-average reasoning skills, as well as language processing-based, visual-spatial processing-based, and executive functioning-based learning disabilities; classes with a low student-to-teacher ratio in order for her to receive individualized instruction; access to small-group intensive, specialized, and leveled reading, writing, and math instruction, and integrated executive function support (P-Ex. C; L-3).

On May 9, 2022, the District held an IEP Meeting where the Parent shared the evaluation report (P-Ex. L-4). At the end of the meeting, the Parent shared their concerns that the IEP team’s ultimate recommendation of an ICT class would not provide adequate support (P-Ex. L-4). The Student remained in the ICT class for the remainder of the school year and continued to struggle academically and emotionally in school (P-Ex. L-4).

On August 23, 2022, the Parent sent a Ten-Day Notice letter advising the District of their disagreement with the CSE’s recommendation and their willingness to work with the CSE to develop an appropriate IEP and placement; and their intent to enroll the Student at the Private School for the 2022/23 school year (P-Ex. E; F; L-4). The Parent did not receive a response to the concerns raised in the letter (P-Ex. L-5). The Parent signed an enrollment contract with the Private School in June 2022 and paid the tuition in full for the 2022/23 school year (P-Ex. D; H; L-10).

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 did not present a case for any of the school years alleged, and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21, 2021/22 and 2022/23 school years. Based the undisputed facts alleged by the Parent in their affidavit testimony, I find that the District did not provide the Student with FAPE for the 2020/21, 2021/22 and 2022/23 school years.

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 2020/21, 2021/22, and 2022/23 school years, 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 CSE Coordinator for the Private School testified regarding the Student and the Private School (P-Ex. K). As CSE Coordinator he works collaboratively with teachers, observes students in multiple settings to gather information about progress, and teaches a math group (P-Ex. K-1). The Private School is a kindergarten to 12th-grade independent, college prep school that utilizes multisensory instruction and serves students with language-based learning disabilities (P-Ex. K-2). The mission is to educate children with learning disabilities to their fullest potential and they enroll students with average to above average intelligence with a variety of educationally handicapping conditions, including speech and language impairments, learning disabilities, including specific reading, writing, and math disabilities, attention deficit disorder, and executive functioning disorder (P-Ex. K-2).

The Student entered the 4th grade at the Private School in September 2022 (P-Ex. K-2). The CSE Coordinator testified that the Student struggled with language processing, verbal working memory, rapid automatic naming, remembering, reasoning with visual-spatial, and has wide variability in her regulation of key executive function skills (P-Ex. K-3). The Student was placed in a self-contained small class with eleven students and two teachers (P-Ex. K-3). The small class size addressed her attentional issues and the need for significant teacher support (P-Ex. K-3). The class was highly structured, with predictable routines to help address the Student’s executive functioning difficulties (P-Ex. K-3). The small class also allowed for individualized attention in areas where the Student needed more assistance, such as writing (P-Ex. K-3). Students were broken down into smaller groups of two to five students, for reading and math, based on instructional level and ability (P-Ex. K-3). The Student’s peers had similar cognitive profiles and academic difficulties (P-Ex. K-3). The Student’s instruction was delivered in a multisensory fashion to address her attentional issues and to help her retain the information taught (P-Ex. K-3). The teachers repeated the materials taught to address her working memory and processing difficulties (P-Ex. K-3). Instruction was also differentiated to tailor it to her specific academic levels and instruction was paced appropriately to address the Student’s processing challenges (P-Ex. K-3). Executive functioning skills were explicitly taught in the classroom (P-Ex. K-3).

In reading, the Student received daily instruction in a group of five students (P-Ex. K-3). The Private School used the Orton-Gillingham Preventing Academic Failure (PAF) program, a structured multi-sensory program that utilizes auditory, visual and kinesthetic channels to help students master the processes of decoding, spelling and handwriting (P-Ex. K-4). Through the program, students progress from learning the simplest parts of oral and written language (single letters and sounds) to the more complex (syllables, words and sentences) in an organized and sequential manner (P-Ex. K-4). The program follows the same predictable structure each day (P-Ex. K-4). It began with a visual and auditory review of sounds, suffixes and red words the students have learned in previous lessons (P-Ex. K-4). In reading during the first semester, the Student made progress in her encoding and decoding skills as outlined in her mid-year report (P-Ex. G; K-4). Since the mid-year report, the Student has continued to make progress in reading and met some of her mid-year goals (P-Ex. K-4). The Student’s reading progress was tracked through formal and informal assessment throughout the year (P-Ex. K-4). The Student also made progress on the Fountas and Pinnell Assessment where she went from a level J (end first grade level) in September of 2022, to a level N (beginning third grade level) in May 2023 (P-Ex. K-5).

In writing, the Private School used the structured, research-based Hochman writing method (P-Ex. K-5). The teachers also provided one-to-one check-ins during class to provide additional support when the Student struggled with certain aspects of writing (P-Ex. K-5). The Student made significant gains in her writing (P-Ex. K-5). She learned the fundamental components of a sentence, the differences between fragments and complete sentences, learned about paragraph structure, and can plan and write a five sentence paragraph (P-Ex. K-5). Over the course of the year, the Student developed her ability to independently create detailed sentence summaries and isolated writing pieces (P-Ex. K-5). She also demonstrated strengths in the journaling exercises, self-editing her work, and implementing strategies she learned in class (P-Ex. K-5).

In math, the Student received daily instruction in a group of four students (P-Ex. K-5). The group used several curriculums which were supplemented with teacher created worksheets and other math textbooks (P-Ex. K-5). A hands-on curriculum was used that provided concrete representations using manipulatives to develop mathematical concepts (P-Ex. K-5). The program introduced new skills and concepts through a highly concrete and sequential process by using the manipulatives and lesson sequence (P-Ex. K-6). The students reviewed and extended concepts and skills that were previously taught as well as learned new concepts and skills to build and strengthen a conceptual foundation (P-Ex. K-6). The Student made progress in math, demonstrating an understanding of the concepts of even and odd numbers, retaining new math facts, and extending her operational fluency (P-Ex. K-6). The Student benefitted from the highly structured classroom environment and strategies learned (P-Ex. K-6). Socially and emotionally, the Student developed close relationships with other students in the class, she actively participated in games with peers and imaginative play, and actively participated in class (P-Ex. K-6).

The Student received speech language services weekly for 45 minutes in a 3:1 group, and once a week for 45 minutes during a social studies push-in to help address her speech needs (P-Ex. K-6). The sessions targeted the development of the Student’s writing skills and executive functioning skills (P-Ex. K-6). During these sessions, the Student was making slow and steady progress to develop those skills (P-Ex. G; K-6). The Student also received OT to work on typing skills, sensory sensitivity, and core body strength (P-Ex. K-7). She received OT services once a week for 30 minutes in a group of three and a push-in whole typing class once a week for 20 minutes (P-Ex. K-7). She made slow and steady progress in these areas with the OT support (P-Ex. G; K-7). 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, the CSE Coordinator testified above regarding the progress the Student made during the 2022/23 school year. The Parent has also observed academic progress since the beginning of the 2022/2023 school year (P-Ex. L-7). In reading, the Parent noticed that when the Student reads out loud she can sound out the words and blend letters/sounds together better than she could at the beginning of the year (P-Ex. L-7). The Student also enjoys reading more, is more fluent, and has gained more confidence (P-Ex. L-7). In writing, she has improved her ability to write complete sentences and to use writing strategies more consistently and independently (P-Ex. L-7). In math, the Student has made progress and gained a great deal of confidence (P-Ex. L-7). Socially, the Student has made a number of very good friends, and she actively participates in class (P-Ex. L-8). Emotionally, the Parent has seen an increase in self-esteem (P-Ex. L-8). The Student’s outbursts at home after school decreased dramatically as she became more comfortable at the Private School (P-Ex. L-8). She has become more adaptable and flexible, confident, uses the strategies she has learned in counseling, and is better able to advocate for herself (P-Ex. L-8). She is excited to go to school now (P-Ex. L-8). The Parent has also seen progress in her executive functioning and organizational skills (P-Ex. L-8-9). Based on all of the above, I find that the Private School is 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.

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 2020/21, 2021/22 and 2022/23 school years. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to funding for the 2022/23 school year. 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: 1) 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 during the 2022/23 school year.

SO ORDERED

DATED: June 27, 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. DPC 12/13/22 15 pages

B. Amended DPC 3/29/23 16 pages

C. Neuropsychological Evaluation 2/18/22 24 pages

D. Enrollment Contract 6/8/22 6 pages

E. Ten Day Notice 8/23/22 5 pages

F. Ten Day Notice Receipt 8/23/22 1 page

G. Mid Year Report 1/31/23 18 pages

H. Tuition Affidavit 2/9/23 1 page

I. Class Schedule undated 1 page

J. Program Description undated 2 pages

K. Affidavit of CSE Coordinator 5/26/23 8 pages

L. Affidavit of Parent 5/30/23 10 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.