New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

City/State: 594690 – NYC: 244681

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

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

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

Hearing Dates: [REDACTED]

Actual Record Close: December 16, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: December 30, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[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”) dated January 8, 2023 regarding the 2022/23 school years (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 recommend and implement an appropriate program. (P-Ex.A). The Parent has requested Private School tuition reimbursement and direct tuition funding for the 2022/23 school year. (P-Ex.A; T.pg.52). 2

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on February ^[2], 2023. A Pre-hearing Conference was held on February 14, 2023. A Status Conferences were held on 3/21/23; 4/18/23; 5/15/23; 6/13/23; 7/13/23; 8/7/23; 9/7/23; and 10/4/23, at which time the Hearing was scheduled for November 16, 2023. (T.pg.46-47).

At the November 16th Hearing, District did not present a case with either exhibits or witnesses. (T.pg.47). The Parent presented exhibits that were entered into evidence and the testimony of two witnesses.^[3] (T.pg.47-49).

Nine joint/unopposed requests to extend the compliance date were granted. The record closed on December 16, 2023.

FINDINGS OF FACT

Parent testified Student struggled with anxiety and paying attention in the classroom. As the academic demands of school started to increase and Student was introduced to reading, his learning needs came to the forefront. In the 2021-22 school year, Student was having considerable struggles learning to read, which impacted his self-esteem and ability to pay attention. Even with a small class size and significant support, Student continued to struggle. (P-Ex.P).

Student was evaluated and diagnosed with a learning disorder in reading and recommended Student be referred for an IEP and receive academic support using Orton Gillingham and Wilson programming. (P-Ex.P; M).

Parent contacted the CSE in the Spring of 2022 in order to start the IEP process and took part in a social history on June 21, 2022. The CSE confirmed they would schedule Speech and OT evaluations. A subsequent private evaluation confirmed and diagnosed Student with Learning Disorders in Reading, Writing and Math and recommended Student be placed in a specialized school for bright students with language-based learning disorders. (P-Ex.P; N).

An IEP meeting was held on August 12 2022 and the CSE recommended an Integrated Co-teaching (“ICT”) program. Parent and Student’s prior educators asserted that an ICT class was too large for Student and failed to offer the level of individualized support he requires. Parent asserted Student requires a program that can provide targeted instruction for his languagebased learning disabilities, a specialized school to address his constellation of needs. (P-Ex.P).

Parent did not receive a copy of the IEP or placement until August 29, 2022, just days before the start of the 2022-23 school year. Parent testified the IEP failed to include the results and diagnoses of Student’s neuropsychological evaluations and did not include math goals, even though he was diagnosed with a learning disorder in math. In addition, the proposed ICT class was 26 students, which Parent asserted was too large for Student. Parent testified even the proposed placement acknowledged that ICT was not an appropriate program for him. (P-Ex.P).

By letter dated August 22, 2022, Parent advised the CSE of her concerns with the proposed program and placement and advised that unless provided an appropriate IEP and placement, Student would begin at Private School for the 2022-23 school year seek funding and reimbursement. (P-Ex.P; B). By letter dated September 19, 2022, after speaking with the proposed placement, Parent again contacted the CSE and shared her concerns. (P-Ex.P; C). Parent testified the CSE failed to provide any substantive response to either my August or September 2022 letters and therefore Student continued at Private School for the 2022-23 school year. (P-Ex.P).

Parent testified she paid some of the cost of tuition, but could not afford the balance, and requested reimbursement and direct tuition funding. (P-Ex.P; I).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District did not present a case regarding the 2022/23 school year. Parent’s claims regarding the denial of FAPE were not disputed with factual evidence. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT

The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent presented the testimony of Private School Special Education Teacher, who testified Private School is a specialized school for students, in grades Kindergarten through 12, with language-based learning disabilities. Skill acquisition and academic remediation are priorities in the school’s program. (P-Ex.O; J). Students are diagnosed with a language-based learning disability, such as a Specific Learning Disorder in Reading or Writing or a Language Disorder. Students also have average or above-average cognitive abilities. Most students are children with age-appropriate social skills who struggle primarily with language and learning. Many students also have executive functioning and attentional deficits. (P-Ex.O; J).

The typical class size is 12 students, with either two co-head teachers, or one head teacher and one assistant teacher. Homeroom classes are grouped heterogeneously. Students are then grouped by academic skill levels for decoding and math. Related services include occupational therapy, speech & language therapy, and counseling. All related service providers are trained and certified in their respective fields. Private School offers professional development to teachers and staff. (P-Ex.O).

In the Elementary School, the students learn in a small class setting, with teachers who have expertise in both their content area and in teaching students with learning disabilities. Instruction is derived from research-based practices for students with learning disabilities and is differentiated to meet the individual needs of each student. (P-Ex.O). Teacher testified Student was student in her class during the 2022-2023 school year. Teacher was Student’s homeroom teacher and taught him Decoding, Reading Comprehension, Writing Math, and Social Studies. Teacher co-taught Student’s classes with a teacher who had a Bachelor’s Degree in Psychology and a Master’s Degree in Special Education and held New York State Initial Certification in Childhood Education (Grades 1-6) and Students with Disabilities (Grades 1-6). (P-Ex.O). Teacher testified Student’s tendency towards immature and off-task behavior can impact him in the classroom. Student has significant learning challenges, as he is diagnosed with a Specific Learning Disorder with Impairment in Reading. His most recent neuropsychological assessment also indicated that he meets many of the criteria for a Specific Learning Disorder with Impairment in Written Expression, as well as a Specific Learning Disorder with Impairment in Mathematics, a Language Disorder, and Other Specified ADHD. (P-Ex.O; L; M). Over the 2022-23 school year, Student often struggled to access appropriate language when discussing his ideas in class. His low stamina impacted his ability to complete academic tasks. He required significant prompting and support in order to develop and communicate his ideas, both orally and in his writing. Likewise, due to his executive functioning challenges, he needed support with skills such as organization, time management, following multi-step directions, and task initiation. Throughout the school year, Student required teacher support to improve his self-regulation, impulse control, and to navigate peer conflict. Student benefitted from small group counseling and social skills classes, which provided direct instruction on social skills and emotional regulation strategies. (P-Ex.O). Students are placed in a homeroom class and learn in separate instructional groups for Decoding and Math. The class groups allow teachers to target instruction that meets each student’s individual needs based on their skill levels in each subject area. It also allows students to learn in a peer group that is appropriate for them and moves at an appropriate pace. (P-Ex.O). For the 2022-2023 school year, Student’s homeroom class had 8 students with 2 teachers. The subjects taught in his homeroom class included Reading Comprehension, Writing, and Social Studies instruction. For Math and Decoding Student was placed in groups of 8 students and 9 students, respectively, with two teachers. (P-Ex.O). Teacher testified instruction at private School was specialized to meet Student’s needs and foster his progress. Student received accommodations in all of his classes to support his learning and functional needs. Student’s reading instruction was divided into two classes: Decoding and Comprehension. He received 45 minutes of explicit, multisensory decoding instruction daily in his Decoding class. He received 45 minutes of reading comprehension instruction 3 times per week in a small group of 3 students. At the beginning of the year, Student was not able to read a Kindergarten level QRI passage with independent accuracy, indicating that he was a pre-reader. At the end of the year, he scored at an instructional level on the Kindergarten level passage and increased his word decoding. (P-Ex.O).

In writing, Student’s fine motor needs impacted his physical ability to form letters in a legible and fluent manner. He required occupational therapy support in order to work on letter formation, letter reversals, spacing, automaticity of printing letters. Student required teacher support for spelling, to remember his ideas and complete each of his sentences, and to attend to details, which contributed to a lack of stamina for completing writing tasks. Student required direct instruction of writing skills as well as 1:1 teacher support while working on writing assignments. Teacher testified over the course of the year, Student became more independent and made progress. (P-Ex.O).

Student’s math curriculum included a daily math class, as well as a community math class two times per week. Student demonstrated that with accommodations in place, he is capable of grade level work. Due to his challenges with language processing and executive functioning, Student often needed support with breaking down word problems and completing multi-step math problems. He needed direct instruction, teacher modeling, and use of manipulatives in order to learn and retain new skills in math. He benefitted from repetitive practice, repeated questioning, and support with initiating tasks in math class. Student made progress in math as the topics and areas of study became more complex. (P-Ex.O).

Student’s group counseling was run by Private School’s licensed Social Worker. Student made progress over the course of the year. Student received Speech and Language Therapy from a licensed Speech and Language Pathologist, outside of the classroom once per week for 30 minutes in a group of three students, as well as once per week for 45 minutes through a push-in model. Student improved upon his receptive and expressive language skills. (P-Ex.O).

Student met with a New York licensed occupational therapist, once per week or at least six times per month, for 30 minutes per session. Therapy sessions targeted Student’s handwriting deficits and weaknesses in his upper extremity, core strength, and endurance. By the end of the year, Student showed considerable improvement. (P-Ex.O). Private School Teacher testified Private School is a full-time special education school and special education services are provided throughout the entire school day, including non-academic periods and unstructured social times such as lunch and recess. Social times provided learning opportunities for Student and he often benefitted from the support of special education professionals during these unstructured times. (P-Ex.O). Private School teachers are trained in special education techniques and provide language support throughout the day. In all of Student’s non-academic classes, such as Music, Art, Performing Arts and Physical Education, Student’s teachers addressed his needs by providing a breakdown of language, presenting directions one step at a time, repeating instructions, and providing other accommodations necessary to support his language, attention, executive functioning, and self-regulation. (P-Ex.O). Monthly meetings were held for Student’s teachers and related service providers to discuss Student’s progress and share information and observations with each other to target Student’s individual needs and support him on a daily basis. (P-Ex.O). Private School Teacher testified learning in a small class setting with two certified special education teachers was essential for supporting Student’s academic growth. Across all academic subjects, particularly in Decoding, Reading Comprehension, and Writing, Student required frequent 1:1 support from a teacher. This support was necessary in order to foster the growth of his academic skills, as well as supporting his emotional regulation and frustration tolerance, and redirecting him to task when he frequently became distracted. Student often demonstrated frustration and put his head down on his desk, cried, or attempted to avoid an assignment when given a task he found difficult. He required 1:1 support at these moments. Student benefitted from strategies to improve his regulation, such as encouraging him to show ‘expected behavior,’ use whole body listening, and ask for help when needed. Additionally, he frequently required movement breaks, as it was difficult for him to sit and sustain his attention throughout the duration of lessons or independent work times. (P-Ex.O). Private School Teacher testified special education support throughout Student’s school day was imperative for his success. Even in the “unstructured” social times, (such as lunch and recess), Student required support in addressing his academic, social-emotional, and language related needs. (P-Ex.O). Private School Techer testified to the progress Student made in the 2022/23 school year. (P-Ex.O; K; L).

Parent testified throughout the 2022-23 school year Student made clear progress at Private School. The small classes and individualized attention helped Student to grow as a student and learner. Parent saw his reading start to improve and he has become less frustrated. (P-Ex.P). With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that the Private School was 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). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent provided notice by letter dated August 22, 2022. (P-Ex.B). Student was enrolled on September 6, 2022. (P-Ex.E). I find Parent’s notice to be timely and reasonable.

2. The Parent’s actions were reasonable. The District failed to establish Parent prejudiced the District.

In balancing the equities, I find in favor of the Parent.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during 2022/23 school year. I further find that placement at Private School is appropriate and Parent was unable to afford the Private School tuition. Parent is entitled to reimbursement for tuition and direct tuition funding for Student’s placement at Private School for the 2022/23 school year, as set forth in my Order.

Parent’s remaining claims are rejected for lack evidence in the record.

ORDER

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

1. ORDER THAT, the District shall reimburse Parent and directly fund Private School all

Private School tuition and fees for the Student’s placement at Private School for the 2022/23 school year.

SO ORDERED

DATED: December 30, 2023

David R. Gronbach

David R. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

N/A

PARENT EVIDENCE

A. Letter Date Name of Document # of Pages DPC 1/8/23 3 pages

B. Parent letter 8/22/22 2 pages

C. Parent letter 9/19/22 2 pages

D. Contract 22-23 6 pages

E. Payment affidavit 10/10/23 1 page

F. Tuition family statement 22-23 1 page

G. Proof of payment 22-23 8 pages

H. Schedule 22-23 1 page

I. Federal 1040 form 2022 2 pages

J. Program description N/A 1 page

K. Mid year progress report 1/2023 11 pages

L. Year end progress report 6/2023 10 pages

M. Neuropsychological Eval 4/26/22 43 pages

N. Education re-evaluation 7/20/22 8 pages

O. School testimony affidavit 11/7/23 8 pages

P. Parent testimony affidavit 11/1/23 4 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

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

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