New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595649 - NYC: 245372

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 245372

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: January 27, 2023

Hearing Dates: June 22, 2023

June 29, 2023

July 14, 2023

Actual Record Close Date: August 1, 2023

Decision Date: August 15, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 22, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 29, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Head of School

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 14, 2023

For the Student:

[Redacted], Esq., Parent 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”) filed on or about January 27, 2023, regarding the 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 2022/23 school year (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 with transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 30, 2023. A prehearing conference was held on February 27, 2023, to discuss the issues in the case. Status conferences were held but the matter remained under investigation and with no movement a hearing was scheduled (See, Transcripts). ^[2]

The hearing began on June 22, 2023, and concluded in three days, on July 14, 2023. The District did not present a case, but stated that it was relying on the strength of the documents it presented. The Parent presented exhibits^[3] and two witnesses, one by affidavit. The record closed on August ^[1], 2023. There were five extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old 11th grade student during the 2022/23 school year (P-Ex. A). The Student is diagnosed with [REDACTED] – recurrent; Attention Deficit Hyperactivity Disorder – predominantly inattentive type; and Specific Learning Disorder in Reading (P-Ex. C-17). The Student is classified as a student with a Speech or Language Impairment (D-Ex. 2). The Parent described the Student as a good kid, funny and bright, quiet and introverted, who had social anxiety and was judgmental of himself (T. 49). The Student has a profound auditory processing disorder and impaired executive processing skills (T. 50).

During the 2020/21 school year, the Student was in the 9th grade and attended a District public school (T. 50). Due to the pandemic, the Student started high school on-line and did not know anyone (T. 50). Due to his auditory processing delays, the online format was difficult for him (T. 50-51). Sometime in Spring of 2021, students were permitted to return to school two days per week (T. 51). The Student was recommended for ICT classes for all core subjects and he was recommended to receive speech on-line however, according to the Parent, that did not work for him (T. 51). Academically, that school year, the Student passed all his classes with help from the parents (T. 52). The Parent had frequent discussion with his teachers that year regarding his need for support in organization and completing assignments (T. 52-53).

During the 2021/22 school year, the Student remained in the public school placement (T. 53). Because the year had been difficult for the Student, the Parent looked into getting him another public school placement through the regular application process, believing that was the only available option, however the Student did not receive a new placement (T. 53). The Student remained in an ICT program for all of his core subjects and received speech therapy (T. 54). There were about 25-30 students in each class (T. 54). Academically, that school year he struggled and failed or barely passed his classes (T. 54; P-Ex. H). Making friends and social interactions were challenging and he did not receive sufficient support from teachers, so he became anxious and depressed (T. 54-55). The Parent discussed with his teachers and the teacher in charge of IEP of the Student’s struggles and their concerns and asked for more support for the Student (T. 55-56). Some teachers gave noncommittal responses, one said he would work with the Student but she did not see any evidence of that actually happening (T. 56). The Parent raised the issue regarding the Student’s social problems and loneliness with teacher in charge of IEP and the teacher agreed that the school could be difficult socially, and that was it (T. 57).

The Parent attended an IEP meeting on October 12, 2021 (T. 57). There was a discussion about the support he needed, but no discussion about changing his program (T. 58). The Parent testified that she did not know that changing his program was a possibility (T. 58). In January 2022, the teacher in charge of the IEP, emailed the Parent and said they needed her to sign a form, the waiver of reevaluation, and told her it was a formality (T. 58-59). The Parent signed it (T. 59). The Parent testified that despite reading the document, she did not understand the implications of signing the document (T. 85-86). She did not know the importance of evaluations or the possibility of changing schools (T. 86). Through all the conversations with teachers throughout the school year, no one told her or suggested the Student should be evaluated (T. 59).

The Parent described the Spring of 2022 as a disaster (T. 59). The Student was switched into a different math class and the teacher was not familiar with the material (T. 59). The Student became very demoralized, failed chem lab again, failed gym, and it was a difficult social environment for him (T. 59-60). The Parent testified that they attended conferences; sent emails and had zoom meetings with teachers to discuss the Student’s difficulties and asked for help (T. 61). The Parent described the teachers as noncommittal and nonresponsive (T. 62). Some teachers engaged in conversation, but the Parent did not see that anything was done to help him (T. 62). The Parent raised the issue of his emotional issues with teacher in charge of IEP who responded by saying that the public school was difficult place socially, kids were competitive and not welcoming to different kids (T. 64). The Parent testified that she raised the issues of the Student’s struggles up to four times a semester (T. 87). At no time did anyone mention that the Student could receive counseling (T. 88).

Due to the Student’s depression and extreme anxiousness, the Parent sought private psychotherapy for the Student (T. 64). The Student saw a therapist once per week (T. 64). At the beginning, therapy was fine but then during the Spring semester, as it became more difficult for the Student at school, things got worse, and he had difficulty talking to his therapist (T. 64-65). The therapist was the person who suggested the Private School because he had other patients with similar difficulties who did well at there (T. 65). The Parent also researched other schools, online and spoke with the neuropsychologist (T. 78).

The Parent had the Student reevaluated with a neuropsychological evaluation during the summer of 2022 (T. 66). They had reached out to the neuropsychologist who had previously tested the Student to ask about different school options and the neuropsychologist indicated that the Student was due for a reevaluation (T. 66). The evaluation revealed that the Student’s emotional well-being had deteriorated badly and still struggled with auditory processing and executive functioning (T. 66). The Parent testified that she did not know that she could request a new program or placement from the CSE (T. 68). She believed going through the regular application process was the way to move him and no one from the public school placement had mentioned that it was possible to transfer him into a new program or placement (T. 68).

The Student started at the Private School in the Fall 2022 (T. 68). Initially, he was quiet and shy but academically he was doing much better and he was engaged in the material (T. 69). Emotionally, his depression and anxiety lessened, and socially, he has made some friends (T. 70). Also, in the Fall of 2022, the District emailed the Parent about where the student was attending school and the Parent gave them the name and address of the Private School (T. 71).

The District’s CSE held an IEP meeting for the Student in January 2023 (T. 71). The Parent had provided the neuropsychological evaluation to the CSE prior to the meeting (T. 71). At the meeting, they discussed the Student’s social and academic needs (T. 72). Ultimately, the CSE recommended a continuation of the ICT program, which the Parent disagreed with because evidence had shown that the Student did not do well in an ICT program (T. 72).

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 indicated that it relied on the strength of the documents, which included an IEP from October 2021, the Prior Written Notice from December 2021, and the waiver of the Mandated three year reevaluation (D-Exs. 2, 3, 4). However, there was no testimony to explain how the recommendations in the IEP addressed the Student’s needs. There was nothing in the IEP to address the Student’s anxiety, and despite being classified with a Speech and Language Impairment, there were no speech language goals identified. There were two writing goals and one math goal (D-Ex. 2-6-7). There was also no testimony to explain why a new IEP was not developed for the 2022/23 school year. Moreover, there was no explanation as to why the District’s CSE determined that reevaluations were not necessary. Again, the Student is classified as Speech Language Impaired, yet no speech goals were developed. The Parent shared the Student’s difficulties with anxiety and no evaluation was recommended to get a better understanding of the Student’s needs. The Parent then testified that she was not fully aware of the implications of the waiver document and thought it was just a formality. There was no testimony from the District to dispute this claim. Based on the evidence provided, I find that the District failed to meet their burden and failed to provide the Student with a FAPE for the 2022/23 school year.

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 2022/23 school year, 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.

Here, the Head of School at the Private School testified by affidavit about the school and Student (P-Ex. L). The Private School was described as a fully accredited private middle and high school with a personalized approach (P-Ex. D; L-2). All classes are provided in a 1:1 (one student, one teacher) learning environment (P-Ex. L-2). The classrooms are small office areas with white boards and other forms of technology that teachers use to teach (P-Ex. L-2). Some classes are taught more typically with the teacher at the board providing instruction and some classes are taught with the teacher and the student sitting at a desk next to one another (P-Ex. L-2). With the 1:1 instruction, each student’s program is customized based on their individual needs which includes, slowing down or modifying the instruction (P-Ex. L-2). The program at the Private School attracts students whose needs do not fit into a typical student mold and for various reasons, their needs could not be addressed in a public school setting (P-Ex. L-2).

The curriculum is accredited by the New York State Middle States Association and Advanced Ed (P-Ex. L-2). Teachers are given flexibility to determine how to best deliver the curriculum instruction (P-Ex. L-2). When a student enrolls at the Private School, the Private School creates a formal education program (FEP), which provides the student’s information on his disabilities, learning needs, and educational levels (P-Ex. L-2). At the same time, the special education lead teacher reviews the student’s IEP and determines appropriate IEP notes/ special ed lead notes, which are similar to goals (P-Ex. L-2). At the Private School they follow a schedule that is more similar to a college program, so the students attend the same classes on Monday/Wednesday and Tuesday/Thursday each week (P-Ex. J; L-2). Each student’s schedule is individualized based on his or her needs (P-Ex. L-2). Every student attends a homework café, where students can complete their homework, either in groups or alone (P-Ex. L-2). There is always one teacher in each cafe who can provide help, which is set up similar to a resource room in a public school (P-Ex. L-3). Students also have access to clubs during lunch and receive individualized physical education (P-Ex. L-3). Students take two field trips per month, which have different focuses including community involvement (P-Ex. L-3). All teachers at the Private School have a minimum of a bachelor’s degree in the area they are teaching and there is a special education lead teacher who is New York state certified (P-Ex. L-3). She provides support and consultations with all teachers who work with students with IEPs and consults and develops IEP notes, are similar to IEP goals (P-Ex. L-3). Every student has individualized goals for their academic, social, and emotional success in the program (P-Ex. L-3). The 1:1 support provides individualized instruction that allows teachers to differentiate support based on the student’s needs (P-Ex. L-3). In the homework cafes, students have opportunities to socialize with other students and the homework monitor can support and provide structure for the social opportunities in the homework café (P-Ex. L-3). If a student encounters peer issues, it is addressed in the small setting immediately (P-Ex. L-3). The monitor can also communicate with the other teachers through the Private School’s management system, so that they can provide additional support and reinforcement (P-Ex. L-3).

The Private School also provides a life skills and community minds classes (P-Ex. L-3). The community minds class helps prepare students to engage in appropriate social interactions (P-Ex. L-3). They provide support with initiating conversations and then work to implement those interactions in different settings like the homework café (P-Ex. L-3). The community minds instructors go through additional training with the Private School in order to teach the course (P-Ex. L-3). In the life skills class, they help students complete resumes, teach them how to write professional emails, work on an individual budget, and help them prepare for more independent living (P-Ex. L-3). The 1:1 instruction also ensures that the student does not miss instruction if a student needs to leave class for a sensory break or had another service to attend (P-Ex. L-3). If the Student needs a break during class, he can take it without missing instruction (P-Ex. L-4).

In order to become a teacher at the Private School, all teachers must take part in New Teacher Training (NTT), where teachers learn the Private School culture, curriculum, and observe classes taught by veteran teachers (P-Ex. L-4). The Private School also offers online training in crisis management, modified instruction, and teaching rubrics (P-Ex. L-4). Trainings are offered to teachers quarterly to provide on-going support and provide them with resources in creating and differentiating the curriculum (P-Ex. L-4). Teachers communicate and often collaborate with each other and the students’ families (P-Ex. L-4). The Private School uses a learning management software program that provides information on the students’ classes, assignments, grades and progress (P-Ex. L-4). Students can also access the program to review their grades or their missing assignments (P-Ex. L-4). This helps them build independence and advocacy skills (P-Ex. L-4). The Private School also emphasizes communication with parents (P-Ex. L-4). Each teacher provides a daily note to parents on how the student did in his class that day and parents can communicate with teachers (P-Ex. L-4). Teachers also meet to review IEP notes (goals) to determine whether they are appropriate or need to be revised and work with the special education lead to modify goals as needed (P-Ex. L-4).

The Student began attending the Private School in the Fall of 2023 (P-Ex. L-4). During the 2022/23 school year, the Head of School provided the Student with support as needed, such as helping him adjust to the school at the beginning of the year or navigate school and social situations (P-Ex. L-4). The Student was described as generally quiet and does not initiate communication with peers or adults easily (P-Ex. L-5). The Student is not proactive about his questions and can get lost in an assignment (P-Ex. L-5). His attentional difficulties and personality made it difficult for him to receive instruction with 25-30 other students and when he did not understand, it was very hard for him to initiate and ask for help (P-Ex. L-5). He required teachers to provide explicit instruction, check for understanding, and allow for questions (P-Ex. L-5). His attentional difficulties also make it hard for the Student to sustain attention and he responded extremely well to the 1:1 teacher in small, quiet classes (P-Ex. L-5). With check-ins and prompting, he was capable of completing his assignments (P-Ex. L-5).

A copy of the Student’s schedule is included in the evidence (P-Ex. J; L-5). The program at the Private School provided the Student with academic instruction that he could access and he was making important progress (P-Ex. L-5). The Student was earning As and Bs on his transcript (P-Ex. K; L-5). Teachers worked with him individually to develop more self-confidence, initiate conversations and questions, and overall self-advocacy, which are crucial skills as he prepares for life post high school (P-Ex. L-5). The Private School’s individualized program also helped to address the Student’s emotional needs (P-Ex. L-5). The Student sees a private therapist, but his anxiety and depression have previously been affected by his poor school performance (P-Ex. L-5). At the Private School, the Student had one point person who he developed a good relationship with and who provided mentoring throughout the year (P-Ex. L-5). The program allowed for daily communication and connection and for the Student, which was crucial to his success (P-Ex. L-5). The Parent received daily narratives of how the Student was performing and his goals, which was helpful for them to understand where they could provide the Student with more support at home (P-Ex. L-5). Overall, the Student responded well to the 1:1, individual teaching; and his teachers were able to maintain his attention and check for understanding (P-Ex. L-6).

The Head of School testified that the recommended speech and language therapy/writing goals from the IEP, were being addressed with his written expression skills in his individual classes and the homework café (P-Ex. L-6). The Mastery and tutoring sessions were a necessary part of the Student’s program because they ensured the students have learned the content and learned the skills, before moving on to the next skill (P-Ex. L-6). 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 evidence showed that the Student made progress academically, emotionally and socially; and requires continued support in those areas (P-Ex. I; K). Based on all of the above, 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). Case law is clear that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense” (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools” (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).

At the hearing, the District asserted that the Parent did not inform the District of their decision not to place the Student in the public school until January 12, 2023, after the IEP meeting; and did not give the District the chance to remedy any alleged defects until January 2023 (T. 33, 36). The Parent confirmed that they were not seeking tuition reimbursement for the first part of the school year (T. 41). 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.

According to the Parent, the Parent informed the District of the Student’s placement at the Private School in the Fall of 2022 (T. 71). According to the DPC, the Parent provided the District with a copy of the neuropsychological evaluation “immediately when it was finalized” (P-Ex. A-2). The report was finalized on October 31, 2022 (P-Ex. C-1). The report recommended placement in a small class, in a small school setting; and further indicated that it was essential that the Student not be placed in a large class because his academic difficulties would worsen (P-Ex. C-18). The IEP meeting was not scheduled until two and half months later and the large ICT class was again recommended. It is unclear what if anything else was recommended since that document was not presented as evidence.

Additionally, according to the DPC, the Parent first sent a notice to the District (through their attorney) on October 21, 2022, and then on January 12, 2023 (P-Ex. A-9). Only the January 2023 document was admitted, but the District did not challenge this fact.

The District was given plenty of opportunities to address the Parent’s concerns during the 2021/22 school year. Instead, the District managed to get the Parent to waive the mandated reevaluation, with no discussion and failed to hold the IEP meeting for the 2022/23 school year in a timely fashion. The District was given the opportunity to address the defects alleged in the neuropsychological evaluation, but chose not to address the Student’s deficits at the January 2023 meeting and continued to make same ICT recommendation that had failed to support the Student during the 2021/22 school year. Based on this record, I do not believe the District would have done anything differently had they received a ten-day notice prior to September 2022. Based on the evidence presented, an award for reimbursement should begin in October 2022 through the end of the 2022/23 school year.

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 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement and funding for part of 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 part the 2022/23 school year, prorated from October 21, 2022 through the end of the 2022/23 school year.

SO ORDERED

DATED: August 15, 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. Request for Impartial Hearing 1/27/23 11 pages

B. Ten Day Notice 1/12/23 3 pages

C. Neuropsychological Evaluation August 2022 18 pages

D. [REDACTED] Program Description Undated 13 pages

E. Tuition Contracts 22-23 19 pages

F. Tuition Affidavit 22-23 1 page

G. Student Attendance 4/20/23 1 page

H. Report Card Term 2 21-22 1 page

I. Progress Notes to Parents 22-23 10 pages

J. Student Schedule 22-23 1 page

K. Student transcript 22-23 1 page

L. Affidavit of Head of School 6/28/23 6 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.