New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent

Record Close Date: October 23, 2023

Hearing Officer: Guljit Kaur Bains, Esq.

Date of Decision: October 24, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED] [REDACTED] [REDACTED]

For the Department of Education:

[REDACTED] [REDACTED]

On January 10, 2023, the parents (“Parent”), of [REDACTED] (“student”), filed a Due Process Complaint (“DPC”) (DOE-Ex.11) and/ or alternately called the Impartial Hearing Request (“IHR”) (P-Exhibit A), under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education of the New York State Education Law. I was appointed as impartial hearing officer (“IHO”) on February 2, 2023, to hear this case.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

The student is classified as a student with a disability. His classification and eligibility for special education support and services are not in dispute. The DPC/IHR raises issues regarding the 2022-2023 school year (“SY”). (DOE-Ex.11), (P-Ex. A) Pursuant to the DPC/IHR the Parents maintain that the district has failed to offer the student a free and appropriate public education (“FAPE”) for the SY. The Parent brought this hearing challenging the appropriateness of the Department of Education’s (“DOE”) recommendations for the student during the SY, seeking reimbursement for payments the Parent made towards the private placement at [REDACTED] (“Private School”) for the SY. The Parent maintains that the failure is both procedural and substantive in nature.

The Parent asserts that “they are entitled to reimbursement when the program and placement offered by the DOE were inadequate or inappropriate; the school selected by the parent was appropriate; and equitable considerations support the parent’s claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 369-370 (1985).” (Parent closing brief) The Parent claims that the DOE offered the student a general education class, with counseling and speech services, and failed to offer a placement for the SY. The DOE has the burden of demonstrating that its IEP, program and placement were appropriate. However, over the course of the hearing, the DOE failed to meet its burden. (P-Ex.’s A, B, C and K) (Parent Tr. 7/19/23 and 8/4/23) (Parent closing brief) The DOE maintains that the student was offered a FAPE for the SY. The DOE created an appropriate IEP on May 16, 2022, that remained in effect at the start of the Student’s 2022-2023 school year. Parent rejected the offered placement, which was capable of meeting Student’s needs, and did not enroll him in school until unilaterally placing Student at the Private School in August 2022 (February 2022 P-Ex. D) Accordingly, the DOE maintains that it offered Student an appropriate IEP program and placement for the school year at issue. The IEP would have provided Student with necessary support and enabled him to make meaningful educational progress. Moreover, the offered placement was able to implement the IEP program and meet student’s needs. Therefore, Student is not entitled the requested relief of tuition at the Private School. (DOE closing brief)

The DOE presented documentary evidence and witness live testimony (DOE-Ex.’s 1-11) (Teacher testimony Tr. 6/15/23 and 6/22/23).

The Parent presented documentary evidence and two witnesses via affidavit and live testimony P-Ex.’s A-L) (Parent and Private School CSE Coordinator Testimony Tr. 7/6 /23 and 7/19/23. It is noted here that the party’s evidence is duplicative in some exhibits and titled/named differently so I will site both parties exhibits wherever possible.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP. “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 (Application of a Student with a Disability, Appeal No. 21-019 at p. 6; 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’” (Appeal No. 21-019 at p. 6, quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982)). “However, the ‘IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP’” (Appeal No. 21-019 at p. 6, quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189)). “An IEP’s adequacy turns on the student’s unique circumstances” (Appeal No. 21-019 at p. 6; Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 1001 (2017)). “The IDEA ensures an ‘appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents’” (Appeal No. 21- 019 at p. 6, quoting Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 6 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

Moreover, the DOE is not required to “maximize” the potential of students with disabilities (Appeal No. 21-019 at p. 6; Rowley, 458 U.S. at 189, 199; Walczak, 142 F.3d at 132). “The DOE must provide ‘an IEP that is “likely to produce progress, not regression,” and . . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Appeal No. 21-019 at p. 6, quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 [citations omitted]). “The IEP must be ‘reasonably calculated to provide some “meaningful” benefit’” (Appeal No. 21-019 at p. 6, quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Endrew F., 137 S. Ct. at 1001; Rowley, 458 U.S. at 192). “The student’s recommended program must also be provided in the least restrictive environment” (“LRE”) (Appeal No. 21-019 at p. 7; 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]. “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]), 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” (Appeal No. 21-019 at p. 6; see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

The Provision of a FAPE “A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits” (Appeal No. 21-019 at p. 6, quoting Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 [2d Cir.7 2012]; Cerra, 427 F.3d at 192). “‘[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP’” (Appeal No. 21-019 at p. 6, quoting Walczak, 142 F.3d at 129, quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE.

An IEP recommendation shall include the following: i) present levels of academic achievement and functional performance and the individual needs of the student; ii) ‘individual needs of the student’ includes management needs that enable the student to benefit from instruction; iii) disability classification iv) measurable annual goal consistent with the students’ needs and abilities; v) special education goals and services; and vi) statements of program recommendation. 8 NYCRR 200.4(d)(2)(i)-(vi).

Here, the IEP contains a classification, program recommendation, then-current academic performance and functional levels, social/emotional functioning, health and physical development and goals with measurements that are related to the deficits. (DOE- Ex.’s 1, 2, 3).

The IEP created on May 16, 2022, was appropriate for the student. (DOE- Ex. 1). The May 16, 2022, IEP team was duly constituted as it included Parent, a District Representative and School Psychologist, a Special Education Teacher, a General Education Teacher and a representative from the Private School. (DOE- Ex. 2).

The May 16, 2022 IEP team also considered evaluative data from which to make a recommendation at the IEP meeting. In developing the IEP, the DOE is required to “review existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroombased observations; and (iii) observations by teachers and related services providers.” 4 20 U.S.C. 1414(c)(1)(A).

The DOE performed a psychoeducational evaluation and speech and language assessment prior to the May 2022 IEP meeting (DOE- Ex. 6 and 7). In addition to the assessments performed prior for the May 16, 2022 IEP meeting, the IEP team reviewed and considered a neuropsychological addendum from July 21, 2021, as well as the student’s recent transcripts from the Private School (DOE Ex. 6-8 and 10) (Neuropsychological addendum is also known aas (EDACTED P-Ex. C).

The May 16, 2022 IEP was substantively appropriate. The Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression,’” and if the IEP affords the student with an opportunity greater than mere “trivial advancement.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130; in that that it is likely to provide some “meaningful” benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). However, a school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability. Bd. Of Educ. v. Rowley, 458 U.S. at 197 n.21, 199. The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment. Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3rd Cir. 1995). The May 16, 2022, the IEP team recommended an appropriate IEP program for the student. [REDACTED], the DOE witness testified the recommendation was made in light of the student’s strong academic performance but also took into account his social emotional and executive functioning challenges. (Tr., 06/15/23, p. 76). A general education classroom setting would have been the least restrictive environment for this student given his strong academic performance. (Id.). The team’s related services recommendations were also appropriate. Counseling was recommended to address the student’s social emotional challenges and speech-language therapy were recommended to address the student’s deficits and areas of need executive functioning, pragmatic language skills, expressive language skills, and receptive language abilities. (Id. at 77). The IEP team appropriately considered other settings, including a general education program without related services and a general education program with Special Education Teacher Support Services (“SETSS”). However, a general education program without related services was rejected because it would not provide enough support for the student’s areas of weakness whereas a general education program with SETSS was rejected because it would too restrictive given the student’s strong academic performance. (DOE -Ex. 4-2).

The May 16, 2022, IEP also contained appropriate goals and management needs to support Student in the classroom. (DOE Ex. 1)

The parent’s case included the testimony of the parent and the CSE Coordinator at the Private School. Both in detail testified to their disagreement with a public school for this student. [REDACTED] a CSE coordinator and employee at the Private School, testified that at the IEP meeting she stated that the student would be overwhelmed in a mainstream classroom, and he needed a highly supportive program with modified instruction and pacing. (P-Ex. L) [REDACTED] testified to the student’s special education needs and the corresponding level of support that he was receiving at the Private School. (P-Ex. L) The Parent’s witnesses disagreed with the recommendations and testified to the deficiencies in the IEP. (Tr 7/19/23 and 8/4/23) and (Tr. 7/6 /23 and 7/19/23) The DOE did offer the Student an appropriate school placement which would implement the May 16, 2022 IEP. (DOE -Ex. 5). This offer of placement was to begin in September 2022. (Id.). The DOE offered [REDACTED] (DOE -Ex. 5).

The DOE presented testimony and documentary evidence to support a finding that it offered the Student a FAPE for the SY. (D-Ex.’s 2-8) and (Tr. 6/15/23).

No further inquiry is required with respect to the appropriateness of the Private School placement to meet the unique needs of the student, nor equitable factors.

The request that the DOE be directed to reimburse the cost of the student’s SY at the Private School placement is therefore denied.

In light of the above, I find that the record establishes the following:

1. The student was not denied a FAPE for the SY.

ORDERED:

IT IS HEREBY ORDERED THAT:

1. Reimbursement/ direct Payment of tuition for the student’s enrollment at the Private School for the SY is denied;

2. The Due Process complaint herein for the SY is therefore dismissed.

Dated: October 24, 2023

Guljit Kaur Bains

DOCUMENTS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exhibit Date Title # of Pages 01-10-2023 Impartial Hearing Request with Receipt 04 pages

B. 08-23-2022 Ten-Day Notice with Receipt 04 pages

D. C 07-21-2021 [REDACTED] 06 02-17-2022 Enrollment Contract 06 pages

E. Program Description Undated 02 pages

F. Class Schedule Sept. 2022 – Undated 02 pages

G. Report Card/ Progress Report Mar. 2023 05 pages

H. 01-23-2023 Tuition Affidavit 01 pages

I. Dates Proof of Payment Email from CSE Regarding 2021-2022 Placement, with J 06-05-2022 12 Attachment IEP (implementation date 6/10/2021, effective for part of K 05-20-2021 19 2020-2021 and 2021-2022) [REDACTED] L 06-13-2023 09 Multiple 11 pages

DOE EXHIBITS

# DOCUMENT DESCRIPTION DATE PAGE

3. Individualized Education 05/16/2022 May 2022 (1 page; DOE)

19. Program (IEP) May 2022 Individualized Education 05/16/2022 (2 pages; DOE)

1 Program (IEP) Attendance Page Individualized Education 05/16/2022 May 2022 6 pages DOE

4. Program (IEP) Meeting Minutes Prior Written Notice 06/05/2022 11 pages DOE

5. School Location Letter 06/05/2022 2 pages DOE

6. DOE Psychoeducational Evaluation 03/27/2020 21 pages DOE

7. DOE Speech and Language Assessment 01/10/2022 7 pages DOE

8. Neuropsychological Addendum DOE Placement Recommendation Email 08/12/2022 (9 pages; DOE)

3 with Parent 07/21/2021 6 pages DOE

10. [REDACTED] Transcript 2020-2021 1 page DOE

11. Due Process Complaint 01/10/2023 4 pages DOE

PARENT CLOSING BRIEF 30 pages

DOE CLOSING BRIEF 12 pages

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.