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 7, 2023

Hearing Officer: Guljit Kaur Bains, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED Esq.

REDACTED

REDACTED, Parent.

REDACTED School REDACTED School

For the Department of Education:

REDACTED Esq., District Representative

REDACTED Teacher, Special Education

On January 10, 2023, the parents (“Parent”), of REDACTED

(“student”), filed a Due Process Complaint (“DPC”) (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 raises issues regarding the 2022 school year (“SY”). (P-Ex. A) Pursuant to the DPC 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 the REDACTED (“Private School”) from January through June of the SY. The Parent maintains that the failure is both procedural and substantive in nature.

The parent asserts that, “the DOE failed to provide the student with an appropriate IEP containing sufficient intensive supports, failed to appropriately address his varied needs, failed to respond to the Parent’s multiple emails and letters expressing her concerns, and failed to provide an appropriate placement recommendation for the SY. As a result of all of the above deficiencies, the parent was forced to unilaterally place him at the Private School so that he could attend an appropriate school so his academic, attentional, sensory, regulatory, social-emotional, and cognitive deficits could be managed and, in turn, he could make meaningful progress in core academic areas like reading, writing, and math.” (P-Ex.’s A and FF) (Parent’s closing brief) Parent is requesting tuition reimbursement for this placement. (P-Ex.’s A and FF).

The DOE submits that the testimony and evidence presented in this hearing established that the district provided the student with a FAPE for the SY. Additionally, the evidence established that the unilateral placement obtained by the Parent for the student was not appropriate. It is the DOE’s position that the Parent is not entitled to the requested relief of tuition at the Private School because it did not provide an educational benefit to the student, and the educational instruction was not tailored to meet the student’s individual needs. (DOE closing brief) (D-Ex.’s 2, 4, 7, and 8).

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.

The Parent asserts that the IEP was deficient in containing sufficient intensive supports, failed to appropriately address the student’s varied needs, failed to respond to the Parent’s multiple emails and letters expressing her concerns, and failed to provide an appropriate placement recommendation for the student for the SY. As a result of all of the above deficiencies, the parent was forced to unilaterally place him at the private school so that he could attend an appropriate school so his academic, attentional, sensory, regulatory, social-emotional, and cognitive deficits could be managed and, in turn, he could make meaningful progress in core academic areas like reading, writing, and math. (P-Ex. A) (D-Ex.’s 2 and 4)

The student underwent a Neuropsychological Evaluation with Dr. Lindsay Whitman, PhD., at Neuropsychological Services, LLC (P-Ex’s. X, and Y). The Parent sent the DOE Dr. Whitman’s Neuropsychological Evaluation Summary. (P-Ex. X).

The School Based Support Team (SBST) held an annual review IEP meeting for the student on November 22, 2022. All required members were in attendance, including a special education teacher/district representative, general education teacher, counselor, speech-language therapist and the parent. (D- Ex. 2) The DOE witness, Ms. REDACTED, the Student’s Special Education Teacher testified via affidavit that that the “IEP team relied upon and considered a social history report, 2020 psychoeducational evaluation, classroom observations, speech-and-language assessment, occupational therapy assessment and the student’s portfolio”. (D- Ex. 7)

After the November 22, 2022, CSE meeting, the Parent sent a series of emails to the DOE expressing her concerns and disagreement with the DOE’s plans for the student and requesting another CSE meeting (P-Ex’s. F, H, I, J)

On December 9, 2022, the Parent, through her attorney, sent the DOE a 10-day notice to the DOE advising the DOE of the Parent’s intent to enroll the student at the private school for the remainder of the SY if the DOE did not provide the student with an appropriate IEP and placement offer (P-Ex. K).

On December 16, 2022, the CSE team reconvened. The Parent had requested a re-evaluation in order for the IEP team to consider the Neuropsychological Evaluation conducted in August 2022. It was attended by the Parent and Dr. REDACTED (Pediatric Neuro Psychologist) special education teacher, general education teacher, social worker, and counselor. (DOE Ex. 4). In addition to the 2022 Neuropsychological Evaluation, the IEP team reviewed the social history report, psychoeducational assessment, classroom observations, speech and language assessment, occupational therapy assessment, the November 2022 IEP, the student’s portfolio, and the schoolbased OT-screening report. (DOE Ex. 7).

The DOE asserts that the IEP itself conforms with all procedural legal requirements. 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. 2). The student was classified with Autism and recommended an Integrated Co-Teaching (ICT) for ELA, Math and Social Studies as well as group counseling, group and individual speechlanguage therapy, and parent counseling and training. (DOE Ex. 4)

The student’s special education teacher, REDACTED, testified that the IEP is appropriate for the student. She was the student’s special education teacher from September through December 2022, as well as his remote teacher during first grade. (DOE Ex. 7) According to REDACTED, the student made great progress in her class from September to December 2022. The student benefitted from schedules and routines, and was reading at a level L, which was approaching grade level expectations. In Math, the student was receiving intervention math support in the classroom in a small group five times per week. The intervention targeted building foundational math skills alongside the third-grade curriculum. Id. REDACTED testified that the annual goals address the student’s academic deficiencies. The first goal addresses the student’s reading abilities as he is approaching grade level. Id. Goal 2 addresses the student’s executive functioning skills around planning for writing. Id. Goal 3 and Goal 4 address the student’s math deficits including mathematical equations and word problems. Id. In regard to the program recommendation, the student was recommended an ICT class. REDACTED testified that the ICT recommendation is most appropriate for the student as it allows for small group instruction of no more than 12-14 students throughout the school day. Id. Additionally, the student benefited from learning beside neurotypical peers as they supported his language development around both academic and peer conversation. Id.

REDACTED testified that the IEP team considered the student’s August 2022 Neuropsychological Evaluation and implemented some of the recommendations in the management needs section, as well as accommodations and goals. Id. However, the IEP team disagreed with the evaluation’s recommendation of a 12:1 setting as the student was making progress in the ICT class. Id. As his special education teacher, REDACTED witnessed the student progress in the ICT setting and how he benefited from his exposure to neurotypical peers and the structure of the ICT classroom setting. Id. Based on the evidence presented at the hearing, the IEP program recommendation was appropriate as it afforded the student the opportunity to make progress in the least restrictive environment.

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 further analysis of 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 of tuition in the amount of $51,092.50 for the student’s enrollment at the Private School for the SY is denied;

2. The Due Process complaint herein for the 2022-2023 school year is therefore dismissed.

Dated: October 15, 2023

Guljit Kaur Bains

DOCUMENTS ENTERED INTO THE RECORD

PARENT EXHIBITS

(A) 1/10/23 Impartial hearing request (9 pp.)

(B) 1/11/23 DOE acknowledgement of receiving the impartial hearing request (1 p.) (C) 10/11/22 E-mail from REDACTED to parent (1 p.)

(D) 11/21/22 E-mail from parent to REDACTED (1 p.)

(E) 11/22/22 E-mail to parent from REDACTED (1 p.)

(F) 11/23/22 E-mail from parent to REDACTED (1 p.)

(G) 11/28/22 E-mail from parent to REDACTED (1 p.)

(H) 11/29/22 E-mail to parent from REDACTED (2 pp.)

(I) 12/2/22 E-mail from parent REDACTED to (2 pp.)

(J) 12/6/22 E-mail to parent from REDACTED (2 pp.) (K) 12/9/22 Letter to REDACTED / ten-day notice letter (5 pp.)

(L) 12/12/22 E-mail from REDACTED with attached 12/12/22 letter regarding 3rd-grade class restructuring at REDACTED (2 pp.) (M) 12/19/22 E-mail from parent to REDACTED (1 p.)

(N) 12/23/22 E-mail from parent to REDACTED (2 pp.)

(O) 12/23/22 E-mail to parent from REDACTED (3 pp.) (P) 12/30/22 DOE response to document K (1 p.) (Q) 2/2/23 E-mail from the DOE advising of the appointment of an impartial hearing officer (1 p.) (R) 2/24/23 Notice of appearance (1 p.)

(S) 4/4/23 E-mail correspondence with the DOE regarding the response to the impartial hearing request and the DOE’s response (3 pp.) (T) Undated REDACTED brochure (8 pp.) (U) 2022-2023 Weekly schedule (1 p.) (V) 2/28/23 Attendance report (1 p.) (W) 12/16/22 and 1/6/23 Enrollment contract (4 pp.) (X) 8/24/22 and 8/26/22 Neuropsychological Evaluation summary (2 pp.) (Y) 11/11/22 E-mail from parent to REDACTED with attached complete 8/24/22, 8/26/22, and 11/10/22 Neuropsychological Evaluation (16 pp.)

(Z) 11/17/22 E-mail from REDACTED with attached DOE classroom and social reports (3 pp.) (AA) 11/18/22 E-mail from parent to REDACTED with attached after-school teachers’ reports (4 pp.)

(BB) 11/22/22 E-mail to parent from REDACTED (1 p.) (CC) Feb. 2023 Mid-year report (8 pp.) (DD) 5/4/23 Affidavit of REDACTED (5 pp.) (EE) 5/9/23 Affidavit of REDACTED (19 pp.) (FF) 5/16/23 Affidavit of REDACTED (10 pp.)

DOE EXHIBITS

1. Exhibit DATE NAME PAGES Due Process Complaint 1/10/2023 18 pages DOE

2. Individualized Education Program 11/22/2022 24 pages DOE

3. Prior Written Notice 12/23/2021 9 pages DOE

4. Individualized Education Program 12/16/2022 28 pages DOE

5. Prior Written Notice 12/20/2022 10 pages DOE

6. & Neuropsychological Evaluation 8/26/2022 8/24/2022 15 pages DOE

7. Affidavit of REDACTED, Special Education Teacher 6/7/2023 4 pages DOE

8. Notarized Affidavit of REDACTED Special Education Teacher 6/22/2023 4 pages DOE

PARENT CLOSING BRIEF

DOE CLOSING BRIEF

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.