New York City Department of Education, Impartial Hearing Decision

Case Number: 595884 – NYC: 245540

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: May 11, 2023 and June 5, 2023 Record Closed Date: June 5, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the May 11, 2023 Hearing For the [REDACTED] [REDACTED], District Representative [REDACTED], Ph.D., School Psychologist

For the Parents:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

[REDACTED], Parent Parent

[REDACTED], Lower School Learning Specialist, [REDACTED]

Names and Titles of Persons who appeared at the June 5, 2023 Hearing For the [REDACTED] [REDACTED], District Representative

For the Parents:

[REDACTED]e, Esq., Attorney for Parent

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

[REDACTED], Parent Parent

[REDACTED], Psychologist

I. Introduction and Procedural History

On February 6, 2023, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [REDACTED] ("Student") brought by his parents (“Parent” or “Parents”). A prehearing conference was held on March 14, 2023, a status conference was held on April 20, 2023, and hearings were held on May 11, 2023 and June 5, 2023. The [REDACTED] (“[REDACTED]”) was represented by [REDACTED], Esq. and Parent was represented by [REDACTED], Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective June 5, 2023.

II. Background

Parent filed a due process complaint on February 6, 2023, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at [REDACTED] and reimbursement for private busing. (Exh. A). There were two days of hearing. The [REDACTED] provided direct testimony by affidavit of one witness. Parent provided direct testimony by affidavit of three witnesses, a representative from the unilateral placement, an evaluating psychologist and Parent. All witnesses were available for cross-examination.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

A psychoeducational evaluation was conducted over various dates in 2019-2020. (Exh. D). The evaluator found that Student fell in the high average range of academic functioning, but had difficulty with processing speed, and her working memory was susceptible to the environment and her level of attention. (Exh. D, page 21 and Exh. O, para 32-3). The evaluator diagnosed Student with a complex profile, including visual memory deficits, attention and executive functioning deficits, processing speed issues, phoneme isolation challenges and deficits in rote learning skills, a moderate reading disorder and weaknesses in writing skills. (Exh. D, page 21-3 and Exh. O). Student’s formal diagnoses include Specific Learning Disorder with Impairment in Reading (Dyslexia), and Difficulty Accessing Names (Dysnomia), as well as impairments in Working Memory, Processing Speed, Executive Functioning, and Attention. (Exh. O, para 70). The evaluator recommended, among other things, daily Special Education Teacher Support Services, reading interventions and accommodations. (Exh. D, pages 23-4).

An Individualized Education Program (“IEP”) meeting was held on April 8, 2022. (Exh. C). The IEP team included [REDACTED] and Dr. [REDACTED], both of whom testified during the hearing. (Exh. 1, page 20 and Exh. 4, page 1). The IEP team recommended an increase in Special Education Teacher Support Services (“SETSS”) from three periods per week to five periods per week, as well as group counseling one time per week for thirty minutes. (Exh. 1, page 13 and Exh. 4, page 1. The team considered a psychoeducational assessment and classroom observations from 2020 as well as a more recent teacher’s report from April of 2022. (Exh. 2, page 2). No other options were considered. (Exh. 2, page 2). The school psychologist and district representative, who attended this meeting, testified that the data provided, as well as input from Parents and Dr. [REDACTED], was sufficient to make a team decision regarding Student’s recommendations. (Exh. 4, page 2). The witness testified that the recommendation was appropriate for Student as she was on grade level across subject areas, but the team increased services based on Student’s needs for more support with writing and continued support for phonics. (Exh. 4, page 2). Dr. [REDACTED] disagreed with the recommendation, advising the team that five periods per week would not be sufficient to address Student’s needs. (Exh. M, para. 9).

A Psychoeducational Update was conducted on July 10, 2022. (Exh. E). The update indicated that, due to challenges during Student’s fourth grade year, Student needed to attend a special education school, as the recommendations made in the initial report were followed, and “despite these supports and interventions, the gap between [Student’s] academic abilities and achievement is widening…. The supports provided to her are not enough to remediate her difficulties.” (Exh. E, pages 3-4). Regarding Student’s school placement, she requires placement in a specialized school environment with a small student to teacher ratio that has an educational program designed to meet the needs of children with learning disabilities in written expression. In order to attend to academic information and learn to her abilities, Student requires a multisensory curriculum and individualized attention. Given her learning disabilities, executive functioning weaknesses, and language deficits, I recommended that [REDACTED] transfer to a non-public school with a specialized program in language-based learning disorders and receive more intensive ELA and math remediation. (Exh. O, para 73-4). The uncontroverted testimony is that this update was provided to the [REDACTED], but no subsequent IEP meeting was scheduled or conducted. (Tr. 118).

Student attended [REDACTED] for the 2022-2023 School year which is an independent accredited school serving children from kindergarten through twelfth grade. Student attended the [REDACTED] which offers a combination of classroom and supplemental small group work. (Exh. L, para. 4-5). [REDACTED] designed and implemented a program for Student that includes specialized multisensory and word analysis approaches to reading, writing and mathematics, including small, specialized classes, and to address Student’s weak attentional skills. (Exh. G). Science and social studies classes are modified to utilize Student’s multiple intelligences and individualized academic support sessions are provided with a learning specialist. (Exh. G, page 2). Student’s reading class was a group of five students and one teacher. (Exh. L, para. 20). Student’s writing class was taught in a group of eight students and two teachers. (Exh. L, para 24). Student attended a remedial math class with four students and one teacher. (Exh. L, para 26). Student received daily academic support sessions for thirty minutes. (Exh. L, para. 31).

Student’s class schedule included morning work, writing, daily reading and math. Social studies, science, theater, art and daily academic support and homework help. (Exh. I).

Student made progress at [REDACTED]. Her first and second trimester report cards indicate progress in (Exh. J and Exh. K). Progress was measured through formal and informal testing, teacher-designed measures, assignments, class participation and projects. (Exh. L, para. 12). Student’s ability to read improved, including her Fountas and Pinnell level, she made progress in writing with a specialized writing class that met three times per week. (Exh. L, para. 21-3). Student benefitted from a daily math class with 1:1 support. (Exh. L, para. 27).

Parent signed an enrollment contract for the 2022-2023 school year in June of 2022. (Exh. F). The contract provided for withdrawal without penalty if Parent accepts a school recommended by her IEP. (Exh. F, page 1). Parent paid tuition in full and seeking reimbursement. (Exh. H and Exh. M).

Parent is also seeking reimbursement for private busing. (Exh. A). According to an affidavit from the school, Parent contracted with [REDACTED] to provide busing for $6,000. (Exh. H).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

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. § 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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "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, a 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 T.P., 554 F.3d at 254; 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 student's recommended program must also be provided in the least restrictive environment (LRE) (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); 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

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); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), 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 (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the [REDACTED] to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

Although the [REDACTED] provided the IEP and limited testimony from one witness, it remains unclear how Parent’s concerns were addressed, and how a slight increase in services would address Student’s continued deficits. The [REDACTED]’s witness, while clearly knowledgeable and credible, had difficulty recalling the meeting, and whether Student’s challenges with writing and Parent’s concerns were addressed, and how and when her needs were addressed with SETSS services. (Tr. 35-7). Further, given Student’s deficits with regards to independent work, as reported by the SETSS provider, the [REDACTED] did little to explain how Student could appropriately function in a classroom with 24 students and one teacher. (Tr. 39-40). Therefore, the [REDACTED] did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “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 child with disabilities, supported by such services as are necessary to permit the child to benefit from instruction.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that the [REDACTED] understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). Although the [REDACTED] alleges that the equities are in its favor as Parent signed the enrollment contract prior to receiving the updated evaluation, I disagree. The [REDACTED] alleges that Parent had “predetermination” with regards to attending the Bay Ridge program. (Tr. 116). While I agree that the timing of the updated evaluation which changed the recommendation to a specialized private school setting is questionable, that is not sufficient proof that that Parent’s actions should be change the balancing of the equities, especially as the contract provided for withdrawal. (Exh. F). There are no allegations of obstruction or that Parent was uncooperative during the IEP process. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year.

TRANSPORTATION

Parent requests, in his due process complaint, round trip transportation to and from the [REDACTED]. (Exh. A, page 6). Parent’s uncontroverted testimony is that the [REDACTED] failed to provide transportation. (Exh. A). Further, the [REDACTED] did not object or provide any reason to deny this request. Therefore, I order the [REDACTED] to reimburse Parent for expenses associated with round-trip transportation to and from the [REDACTED] within thirty days of proof of payment of private transportation.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The [REDACTED] shall fund/reimburse Parent for tuition at the [REDACTED] for the 2022-2023 school year within thirty days of receipt of invoice or proof of payment and proof of attendance.

3. The [REDACTED] shall reimburse Parent for the cost of transportation to and from the [REDACTED] within thirty days of invoice, proof of delivery of service and proof of payment.

Dated: May 9, 2023

AUDREY DANIEL, ESQ.

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 ADMITTED AT HEARING

1. District Exhibit Number Date Exhibit Name Number of Pages Individualized Education Program 4/8/22 20 pages DOE

2. Prior Written Notice 4/13/22 5 pages DOE

3. Report Card 20-21 1 page DOE

4. Affidavit: Ms. [REDACTED] Parent 5/3/23 3 pages DOE

A. Exhibit Number Date Exhibit Name Number of Pages Impartial Hearing Request 02/01/2023 7 pages

B. 10-Day Notice 08/23/2022 2 pages

C. Individualized Education Program 04/08/2022 19 pages

D. Psychoeducational Evaluation Various 38 pages

E. Psychoeducational Update 07/10/2022 4 pages

F. Enrollment Contract 2022-2023 SY 3 pages

G. [REDACTED] [REDACTED] Description 2022-2023 SY 2 pages

H. Tuition Affidavit 01/26/2023 4 pages

I. Class Schedule 2022-2023 SY 1 page

J. Trimester 1 Report Card 2022-2023 SY 5 pages

K. Trimester 2 Report Card 2022-2023 SY 4 pages

L. Affidavit of [REDACTED] 05/08/2023 7 pages

M. Affidavit of [REDACTED] 05/10/2023 5 pages

N. Email from Parent to [REDACTED] and [REDACTED] 09/02/2022 1 page

O. Affidavit of [REDACTED] Impartial Hearing Officer None. 06/02/2023 18 pages