Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245384

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

CSE: REDACTED

Hearing Requested By: Parent

Dates of Hearing: 02/22/23

09/13/23

09/27/23

10/26/23

Actual Record Close Date: 12/18/23

Hearing Officer: Tina Millman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED 02/22/23

For the Parents:

REDACTED Parent Attorney

For the Department of Education:

None DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED 09/13/23

For the Parents:

REDACTED Parent Attorney

REDACTED Parent

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED 09/27/23

For the Parents:

REDACTED Parent Attorney

REDACTED Parent

REDACTED Head of Lower School

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED 10/26/23

For the Parents:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

INTRODUCTION

On January 30, 2023, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of REDACTED ( REDACTED or “the student”) for the 2022/23 school year.

The Parents requested the hearing by filing an impartial hearing request with the DOE on December 19, 2022. The DPC is carried under New York City (“NYC”) Case No: 245384 The impartial hearings were held on 02/22/23, 09/13/23, 09/27/23, and 10/26/23 to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on December 18, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

The DOE CASE

The DOE offers 2 documents into evidence, the IEP dated 6/16/22 and the school placement letter dated 1/23/23. (Exhibits 1 and 2.) No witnesses are called to explain how the IEP was created nor to support that a FAPE was offered to the student for the 2022-2023 school year. The DOE asserts that a FAPE was offered Prong I, rests without calling any witnesses to support and makes a brief opening statement. The DOE challenges Prong II and Prong III.

(IHO I)

THE PARENTS CASE

The Parent offers 17 documents into evidence (A-Q) and calls three witnesses on their behalf. The Parent utilizes the affidavits of REDACTED the Director of REDACTED (Ex. P) and the affidavit of the Parent REDACTED (Exhibit Q) as well as the affidavit of REDACTED (Exhibit O) in lieu of direct testimony. The DOE attorney briefly cross examined REDACTED and the Parent but declined to cross-examine REDACTED as she was not available at the time of the hearing and the DOE attorney believed her affidavit to be extensive. The Parent’s assert that the DOE failed to provide a FAPE for the 2022- 2023 school year, REDACTED was appropriate to meet the students’ special education needs and the equities favor the Parent. They maintain that in light of the DOE failing to support they provided a FAPE, coupled with the appropriateness of the parents’ unilateral placement and the equities favoring the Parent that the DOE should be obligated to provide reimbursement for the students’ tuition at REDACTED in the amount of $62,216.00 which represents the secular portion of tuition for the22-23 school year. (Exhibits, D, E, I and tr. 74)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (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. sect. 1400 (d) (1) (A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).

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 ( Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186, 192 (2d Cir 2005) ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally in adequate under the IDEA. ( A.C. v. Bd. of Educ., 553 F. 3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F 3d 377, 381 ( 2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist. 2007 WL 465211, at 10 (S.D.N.Y. Feb 9, 2007) ).

Under the IDEA, if a procedural violation is alleged, and administrative officer may find that the student to not receive a FAPE only if the procedural inadequacies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. sect. 1415 (f)(3)(E)(ii); 34 CFR 300.513 (a) (2); 8 NYCRR 200.5 (j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-526 (2007); A.H. v. Dep't.. of Educ., 2010 WL 3930028, at *2 (2d. Cir. Aug. 16, 2010; E.H. v. Bd. of Educ., 2008 WL 3930028 at *7 (N.D.N.Y. Aug. 21, 2008); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008)).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. sect 1415 (f)(3)(E)(i) ). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education" not one that provides everything that might be thought desirable by loving parents " (Walczak, 142 F. 3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 ( 2d Cir. 1989) (citations omitted); see Grim, 346 F. 3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189,199; Grim, 346 F. 3d at 379; Walczak, 142 F. 3d at 132). Nonetheless, the school district must provide "an IEP that is "likely to produce progress, not regression, and..... Affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F. 3d at 195, quoting Walczak, 142 F. 3d at 130 ( citations omitted); see

P. v. Newington Bd. of Educ., 546 F 3d 111, 118-19 ( 2d Cir. 2008); Perricelli, 2007 WL 465211 at *15). The IEP must be " reasonably calculated to provide some meaningful benefit " (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).

The students recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. sect 1412(a)(5)(A); 34 CFR 300.114 (a)(2)(i), 300.116 (a)(2);8 NYCRR 200.1 (cc), 200.6 (a) (1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105,108 (2d Cir. 2007); Walczak, 142 F 3d at 132; E.G. v. city Sch. diet. of New Rochelle, 606 F. Supp. 2d 384,388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y.

2008) ). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320 (a)(1); 8 NYCRR 200.4 (d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3,2008), establishes annual goals related to those needs (34 CFR300.320 (a)(2); 8 NYCRR 200.4 (d)(2)(iii)), and provides for the use of appropriate special education services (34 CFR 300.320 (a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such placement (educe. Law sect 4404 (l)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010) ).

Under the second criteria of the legal standard, the Parent bears the burden of showing that the private school placement selected is appropriate. (Application of a Child with a Disability, No 95-57, Application of a Child with a Disability, No. 94- 29,Application of a Child with a Disability, No. 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, Application of a Child with a Disability, no. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County School District Four et. Al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (Application of a Child with a Disability, No. 94-20)

Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record.

Did the DOE offer the student a FAPE/Prong I?

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F. 3d 60,66 (2nd Cir.

2000) (1982)). The DOE offers 2 documents into evidence, the IEP dated 6/16/22 and the school placement letter dated 1/23/23. Exhibits 1 and 2. The DOE however does not offer any witness testimony or any other means of explaining how the Team came to develop their recommendations on the 6/16/22 IEP.

I concur with the Parents position stated in their closing brief that “In this matter, the DOE cannot meet its prong 1 burden as it only submitted documentary evidence without any witness testimony. See record generally. A finding that the district can meet its burden of proof by offering the IEP into evidence (without any supporting testimony to demonstrate the appropriateness of the recommendations contained therein) would be tantamount to holding that the proposed program is presumptively appropriate. Notably, the Second Circuit has specifically rejected a rigid “four corners” rule that would limit evidence to what is written in the IEP. R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185 (2d. Cir 2012). In doing so, the Second Circuit determined that an IEP, on its own, does not demonstrate that a FAPE has been offered. Id. at 185-86; see also L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 110-11 (2d Cir. 2016). Moreover, simply placing in evidence copies of documents, including the Student’s IEP, a Prior Written Notice, and a School Location Letter, without offering any testimony that (i) describes or explains how the IEP was developed, or how it addressed the Student’s unique needs; (ii) provides the CSE’s reasoning and justification for the special education program, related services, management needs, goals, and accommodations that were recommended in the IEP; and (iii) demonstrates that the public school placement offered to the Student was appropriate and could implement the program and services recommended in the IEP, is insufficient to establish FAPE. See J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (E.D.N.Y. 2016) [holding that it was error to determine that an IEP was sufficient based solely on its contents, without testimony or documentary evidence to explain how the IEP’s recommendations addressed the student’s unique needs, and why the recommended program was reasonably calculated to enable the student to receive educational benefits]. “(IHO II) Herein without witness testimony to explain and elaborate the reasoning behind the recommendations and goals made for the student. The DOE has failed to meet their burden that the IEP was reasonably calculated to meet the students’ special education needs. Based upon the aforementioned I find the DOE failed to provide the student with a FAPE for the 2022-2023 school year.

Prong II

Having found that a FAPE has not been offered I will look to the appropriateness of the Parent’s unilateral placement.

It is noted that in the DOE’s closing brief they note that “Argument II” is that the Parents failed to show that REDACTED was an appropriate placement for the student. However, their “Argument II” elaborates as to why the equities favor the DOE. Nothing is mentioned as to support why the Parents failed to support the appropriateness of REDACTED. IHO I.

Despite the blanket statement REDACTED is inappropriate the DOE fails to establish a basis for this.

After reviewing all evidence and witness testimony I find the Parents have satisfied their burden of supporting the appropriateness of REDACTED. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112; see, Frank G., 459 F.3d at 364-65.

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all”approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student. 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, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receiveeducational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). The Parents have more than sufficiently supported their burden of the appropriateness of REDACTED.

The Parent’s witnesses credibly testify on direct via affidavit as well as during cross that how REDACTED provides individualized instruction to the student to meet REDACTED unique academic needs.

The Parent in her affidavit (Exhibit Q) notes. That REDACTED was an appropriate program for her REDACTED in that REDACTED received individualized and small group instruction at a modified pace. REDACTED was placed with similar peers which benefited REDACTED socially and emotionally. She believes that given this support REDACTED made progress throughout the 2022-2023 school year. She notes REDACTED is a different child and has improved in all REDACTED academic as well as social/emotional skills.

The Affidavit of REDACTED (Exhibit P) describes in detail that the student received a variety of specific supports during classroom instruction.

“Specifically, REDACTED received explicit instruction and frequent 1:1 prompting to support REDACTED weak academic skills. REDACTED also needed instruction at a modified pace, directions broken down and repeated, and frequent repetition and review of new skills. During academic classes, REDACTED required repetition, visual aids and multisensory presentation of materials. Given REDACTED attentional difficulties, REDACTED needed reminders to stay focused on the lesson. Tapping on REDACTED desk, movement breaks, and teacher checkins supported REDACTED attention. REDACTED benefited from class-wide supports to keep REDACTED desk and materials organized, along with clear instructions and the individual modeling of different strategies to keep REDACTED desk organized.”

When questioned by the DOE representative REDACTED testified that during the 22-23 school year the student was a REDACTED. REDACTED initially started the school year at a Kindergarten reading level and ended on a first-grade level. In Math, REDACTED started at a 1st grade level and ended on a second-grade level. (Tr. 76)

To conclude, REDACTED notes in her affidavit that she believes the student “made meaningful social, emotional, and academic progress at REDACTED during the 2022-2023 school year and progressed academically. She believes REDACTED benefitted from the structured, multi-sensory instruction REDACTED received in reading, writing, and math and that REDACTED made progress across the board during the 2022 2023 school year.

Based upon the evidence submitted and credible testimony of the witnesses I find that REDACTED was an appropriate placement for the student for the 2022-2023 school year.

Prong III

DO THE EQUITIES FAVOR THE PARENTS?

The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C., 226 F.3d at 68; Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a) (10) (c)(iii)(III).

The DOE maintains in their brief (IHO Ex I) the equities do not favor the Parents because: The “The parent did not inform the DOE at the IEP meeting that she would be placing the student in REDACTED First, the parents signed the REDACTED tuition contract on January 25, 2022, and REDACTED countersigned the contract on January 31, 2022 (Ex. D-5 The IEP meeting was held June 16, 2022, five months later (DOE 1). The parent did not inform the DOE during the June 2022 IEP meeting that the student was already enrolled at REDACTED and there is no mention of REDACTED in the IEP. The parent did not provide appropriate notice that the student would attend REDACTED at the IEP meeting.”

They maintain that “additionally, the “Ten Day Notice” that the parent provided the DOE regarding the student’s placement at REDACTED was untimely (Ex. B). Again, the student was enrolled at REDACTED as of January 31, 2022, and the Ten-Day Notice was dated August 23, 2022, nearly seven months later. The parent misrepresented that she “intend[ed]” to place the student at REDACTED and “intend[ed]” to seek funding if the DOE did not cure alleged deficits within 10 days of her letter. “ I concur with the Parent in that “Although the parent signed the contract with REDACTED before REDACTED IEP meeting was held, the equities do not prohibit a parent from entering into a contract with a preferred private school prior to the date of the relevant CSE meeting (Weast, supra, 240 F. Supp.2d at 407-409; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 99-015; Application of a Child with a Disability, Appeal No. 97-44).” (IHO Exhibit II)

The parent signed the contract with REDACTED because she needed to reserve a seat for REDACTED in case the DOE did not offer REDACTED an appropriate IEP and placement for the 2022-2023 school year. The contract had a clause that allowed the parent to withdraw from the contract by September 14, 2022, if they placed the student. in a DOE public school or approved non-public school.

Upon review of the record, there has been no suggestion in this case that the parent contributed to the FAPE deprivation.

The record also leaves no question as to the costs incurred in relation to the students’ attendance at REDACTED and the Parent’s obligation to pay to do so if unsuccessful in this hearing

In light of the fact that the evidence and testimony support that the Parent fully cooperated with the CSE and did nothing to impede their offering a FAPE and notified the DOE of their intent to unilaterally place the student, based on the aforementioned, I find the equities favor the Parent.

I find the DOE failed to offer the student a FAPE for the 2022-2023 school year, The Parents have met their burden of supporting the appropriateness of REDACTED for the 2022-2023 school year and the equities favor the Parents. In light of the aforementioned, the DOE will reimburse the Parents for the students’ tuition at REDACTED, in an amount not to exceed $62,216.00 which represents the REDACTED portion of tuition for the22-23 school year. (Exhibits, D, E, I and tr. 74)

ORDER

For reasons indicated herein, it is ORDERED

A) that the Department of Education failed to Provide REDACTED with a FAPE for the 2022-2023 school year.

B) The REDACTED was an appropriate placement for the student for the 2022-2023 school year.

C) There are no equitable considerations that would bar the Parent from the requested relief.

D) Upon Proof of the students’ attendance and proof of payment, the DOE is to reimburse the Parents of REDACTED for monies paid for the students’ tuition and placement at the REDACTED in an amount not to exceed $62,216.00 which represents the REDACTED portion of tuition for the 22-23 school year.

December 18, 2023

Tina Millman Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 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 parties' petition 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

EVIDENCE ENTERED INTO THE RECORD

IHO EXHIBIT

I. 10/25/2023, DOE Closing Brief, 13pp.

II. 10/25/23, Parent Closing Brief, 25pp.

DOE EXHIBITS

1. Number Document Date Number of Pages IEP 6.16.22 19 pages DOE

2. School Placement Letter 1.23.23 13 pages DOE

PARENTS EXHIBITS

A. Letter Date Name of Document # of Pages Due Process Complaint 12/19/2022 5 pages

B. Ten Day Notice with Confirmation Receipt 8/23/2022 3 pages

C. Follow up Parent Letter with Confirmation Receipt 9/23/2022 4 pages

D. 2022-2023 Enrollment Contract 1/31/2022 5 pages

E. Class Schedule 2022-2023 1 page

F. Attendance Record 6/14/2023 1 page

G. Program Description 2022-2023 4 pages

H. Affidavit of Payment 1/26/2023 1 page

I. Dates Proof of Payment Various 4 pages

J. REDACTED Mid-Year Progress Report January 2023 20 pages

K. REDACTED End-of-Year Progress Report June 2023 22 pages

L. Neuropsychological Evaluation 8/23/2021 14 pages

M. Academic Update 2/2/2022 2 pages

N. Letter from The REDACTED School 2/9/2022 2 pages

O. Affidavit of Testimony – REDACTED 9/18/2023 11 pages

P. Affidavit of Testimony – REDACTED 9/14/2023 14 pages

Q. Affidavit of Testimony – REDACTED 9/16/2023 11 pages