New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Names and Titles of Persons who appeared at the May 3, 2023 Hearing For the REDACTED None.

For the Parents:

REDACTED, Esq., Attorney for Parent

[REDACTED], Esq., Attorney for Parent

REDACTED, Parent Parent

I. Introduction and Procedural History

On January 26, 2023, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A prehearing conference was held on February 2, 2023, a status conferences were held on March 7, 2023 and April 7, 2023 and a one-day hearing was held on May 3, 2023. The REDACTED (“REDACTED”) did not appear and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective May 3, 2023.

II. Background

Parent filed a due process complaint on December 21, 2022, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at REDACTED. (Exh. A). There was one day of hearing. The REDACTED did not appear. Parent provided affidavit testimony of two witnesses, who were both available for cross-examination during the hearing.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student has been diagnosed as twice-exceptional. (Tr. 19). An Auditory and Language Processing Evaluation was conducted on August 28, 2021. (Exh. F). The evaluator noted auditory processing deficits and difficulty with pragmatic language. (Exh. F, pages 10-11 and Exh. L, page 1). The evaluator recommended an FM system, classroom and testing accommodations and speech and language therapy. (Exh. F, pages 10-11). A neuropsychological evaluation was conducted in September of 2021. (Exh. G). The evaluator found Student had exceptional cognitive abilities, but noted struggles with receptive language and processing speed, and diagnosed Student with ADHD and executive functioning challenges, Developmental Coordination Disorder and a Social Language Disorder. (Exh. G, pages 11-12 and Exh. L, pages 1-2). The evaluator recommended a small student to teacher ratio and a differentiated curriculum, including a highly structured writing program and individual and group support for social communication and pragmatic language. (Exh. G, page 13 and Exh. L, page 2).

Student is attending REDACTED for the 2022-2023 school year. REDACTED is a special education school whose mission is to “transform the lives of twice-exceptional students who are gifted and learn differently by offering a personalized model that fully integrates social and emotional learning with challenging academics. (Exh. I and Exh. M, page 2). There are 98 students in the lower school and students are grouped in small homeroom classes of approximately ten students with four full-time staff members, including two lead academic teachers, one associate academic teacher, and one psychosocial teacher. Students are grouped based on learning styles and personalities and remain in this group for the majority of the day, except for reading and math, where they are grouped in smaller groups based on functioning level. (Exh. M, page 2). Instruction is individualized and each student is assessed on an ongoing basis during the school year. (Exh. M, page 2). Professional development is provided to all staff, and extensive report cards are issued twice per school year. (Exh. M, page 2).

For the 2022-2023 school year, Student was grouped in small classes with peers with similar cognitive abilities, strengths and needs, in a class with nine students and four teachers to address Students learning, attentional, regulation and impulsivity difficulties. (Exh. M, page 3).

Student’s schedule includes reading, phonics, writing, math, social studies, art, music and science, as well as Structured Integrated Play to work on collaborative skills, problem solving and flexibility and Psychosocial, which focuses on social-emotional learning concepts. (Exh. J and Exh. M, page 6). Student works in a group of three students for reading, and has four reading periods per week, and works in a group of three students seven times a week for math. (Exh. M, page 4).

Student receives speech and language therapy two times per week with two other students for social learning purposes and receives occupational therapy once per week individually and twice per week with two other students, working on improving gross motor skills, executive functioning and handwriting. (Exh. M, page 5). Student receives counseling once per week individually to address positive connections with peers and coping skills. (Exh. M, pages 5-6).

Student has made progress during the 2022-2023 school year. Student’s fall report card indicates progress in reading, English, math and all academic subjects, as well as in his social skills and related services. (Exh. K). Student has leveled up in reading and is on a third-grade level for math, although he requires teacher support for impulsivity, organization and attention. (Exh. M, page 4).

Parent signed an enrollment contract on June 28, 2022; the contract provides for withdrawal prior to September 9, 2022 if the REDACTED locates an appropriate placement. (Exh. H). Parent is seeking reimbursement for the entirety of the tuition, as well as continued busing. (Exh. L, page 6).

Parent filed a Ten-Day Notice on August 24, 2022. (Exh. B). There is nothing in the record to indicate a response. Parent filed a due process complaint on December 21, 2022. (Exh. A).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not appear, did not provide an explanation for its failure to appear and did not submit evidence. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (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, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that REDACTED understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year.

Parent also requests continued round-trip transportation for the remainder of the school year. As this transportation has been provided, and the school year is nearly over, I order the REDACTED to continue to provide the requested transportation.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The REDACTED shall fund/reimburse Parent for services provided at REDACTED for the 2022-2023 school year within thirty days of receipt of invoice or proof of payment and proof of attendance and delivery of services.

3. The REDACTED shall continue to provide Student’s present bus route for the 2022-2023 school year.

Dated: May 14, 2023

AUDREY DANIEL, ESQ.

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 ADMITTED AT HEARING

A. District None. Parent Exhibit Number Date Exhibit Name Number of Pages Impartial Hearing Request 12/21/2022 6 pages

B. 10-Day Notice 08/24/2022 2 pages

C. Individualized Education Program 03/09/2022 39 pages

D. Revised Individualized Education Program 03/09/2022 39 pages

E. Psychoeducational Assessment 05/28/2021 9 pages

F. Auditory and Language Processing Evaluation 08/28/2021 15 pages

G. Neuropsychological Evaluation September 2021 24 pages

H. Quad Enrollment Contract 2022-2023 SY 6 pages

I. Quad Program Description Undated 24 pages

J. Class Schedule 2022-2023 SY 1 page

K. Fall Report Card 01/27/2023 13 pages

L. Affidavit of REDACTED 05/02/2023 6 pages

M. Affidavit of REDACTED Impartial Hearing Officer None. 05/02/2023 7 pages