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CASE NUMBER: 595900 - NYC: 245556
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 5, 2023:
For the Student:
[REDACTED] (hereinafter referred to as “Parents’ representative”)
[REDACTED] (hereinafter referred to as “Parent 1”)
[REDACTED] (hereinafter referred to as “Parent Witness 1”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
Observer:
[REDACTED]
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old 2 classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On February [2], 2023, Parents, through Parents’ representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. DOE-1). I was appointed on February 10, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought, inter alia, a finding that the DOE denied Student a FAPE for the 2021-2022 school year (“SY”), and an order that the DOE reimburse/directly fund Student’s placement at the Attending School (defined on page 32) for the 2021-2022 SY (Ex. P-A-3).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[3] and its implementing regulations,[4] and the New York State Education Law[5] and its implementing regulations.[6] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[7] Parents’ representative however confirmed that the Parents’ relief being sought was under the IDEA (T. P8).
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was: not putting on a case in the sense that the DOE was not calling any witnesses but was submitting six documents for admission to the record and planning to rest on the documents. The DOE was not conceding that it failed to provide Student with a FAPE for the SY at issue (T. P17).
District’s representative waived the DOE’s opening statement (T. P17). District’s representative confirmed that the DOE rested its case (T. P19). The DOE, through District’s representative, submitted six documents in support of the DOE’s case. There were no formal objections to any of the DOE’s documents being admitted at the main hearing (T. P17, & 19). District’s representative also waived the DOE’s closing statement (T. P39).
Parents’ representative waived Parents’ opening statement (T. P20). Parents, through the Parents’ representative, submitted sixteen documents in support of the Parents’ case (Ex. P-20, P-23, P-27, & P-37). There were no formal objections to any of the documents being admitted at the main hearing, save for a provisional objection as to Ex. P-H, which was subsequently addressed through the testimony of Parent’s Witness 1 and therefore not pursued (T. P26, & P27). There were three affidavits in Parents’ disclosure (Ex. P-L, P-O, & P-P), and two of the affiants were required to be available for cross-examination, although in the end only one of the affiants testified and the other two were excused. All exhibits that are admitted to the record are listed below (see Appendix B). Parents’ representative also waived Parents’ closing statement (T. P39).
ISSUES IN DISPUTE
The DOE did not concede that it failed to provide Student with a FAPE for the SYs at issue (Prong I) (T. P17); it is asserted in the DPC that Parent will state that the Attending School (define on page 32) is an appropriate and necessary program for Student (Prong II) (Ex. DOE-1-2); and although neither the DOE nor parent expressly addressed equitable considerations at the IH, which would or would not preclude or diminish an award to Student and Parents, it is asserted in the DPC that Parent 1 fully co-operated with the CSE (Ex. DOE-1-3).
PREVAILING PARTY
The DOE is the prevailing party, as I have found that Student was offered a FAPE for the 2021-2022 SY.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [8].
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right 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 [9].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [10].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [11]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [12]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [13].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. [14]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[15]
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 or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. [16]
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
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.” [17]
Although the DOE has not conceded that it failed to provide Student with a FAPE for the SY in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one. As such, I have sought to determine if the program provided for the 2021-2022 SY was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of all the evidence on record.
In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[18] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).[19] The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.”[20] Moreover, any after-the-fact evidence on record which was unavailable to the CSE should not be considered in the determination and cannot be used to assess the CSE's recommendations at the time they were made. [21]
The DOE disclosed five documents in support of its position that the DOE provided Student with a FAPE for the 2021-2022 SY (Ex. DOE-2 through DOE-6).
The first of the five exhibits is the Student’s IEP that was developed for Student for the SY in issue (Ex. DOE-2) (hereinafter referred to as “The IEP”). The IEP was developed pursuant to an IEP that took place on March 4, 2021, and had as its projected implementation and projected annual review dates as March 18, 2021, and March 3, 2022, respectively.
The second of the five exhibits is the DOE’s Prior Written Notice (“PWN”) and School Location Letter (Ex. DOE3). These documents are addressed to Parent 1 and there is no allegation in the DPC or during Parent 1’s testimony that Parent did not receive them. I therefore find that the assertions in the DPC that the DOE failed to develop a timely IEP, failed to offer Student a program and services and violated Parents’ procedural rights – insofar as the DOE’s obligations to hold an annual review for Student for the relevant SY; provide Parents with PWN of a change to Student's IEP; to send a school location letter with a placement for Student for the relevant SY; and to produce an annual IEP by the first day of the relevant SY are concerned – are without merit. [22]
Composition of the CSE team
It is asserted in the DPC (Ex. DOE-1), inter alia, that the IEP “team” was not properly constituted.
The IDEA requires a CSE to include the following members: the parent(s); one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative; an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student; and if appropriate, the student.[23] While not explicitly required in the IDEA, State law and regulation also requires that a CSE include a school psychologist. [24]
According to the attendance page of the The IEP (Ex. DOE-2-28), Parent 1 attended the IEP meeting, together with the District Representative; Parent’s Witness 2, School Psychologist; Math Teacher; Educational Advocate, and DOE Special Education Teacher (all terms are defined on page 32).
Whilst it does not expressly indicate in The IEP that a school psychologist was present at the IEP meeting, Parent’s Witness 2 confirmed that the attendee listed as District’s Representative on The IEP is indeed a school psychologist (Ex. P-P-3). I therefore find that the assertion in the DPC that the IEP “team” was not properly constituted is without merit.
It is also asserted in the DPC (Ex. DOE-1), inter alia, that the individuals on the “IEP team” who made the decisions were not knowledgeable about the DOE’s continuum, and its ability and responsibility to develop individualized programming. Based upon the contents of The IEP, I also do not find any merit in this assertion. Approximately two-thirds, or 67%, of the CSE team comprised Parent 1, representative of Parent 1, and participants from the Attending School. A significant percentage of the contents of The IEP was sourced directly from these participants and the information provided from the Attending School. Even input from Parents’ Educational was documented on The IEP (Ex. DOE-2-4, & DOE-2-26).
Predetermination and Parents’ Participation
It is asserted in the DPC (Ex. DOE-1), inter alia, that: large sections of the IEP we're not created by and/or drafted at the IEP meeting; the DOE representative at the IEP meeting made unilateral decisions; the DOE predetermined the IEP’s program and placement recommendations; goals were not discussed and written at the IEP meeting the DOE applied illegal blanket policies and practices with respect to the development of Student’s IEP parent was not permitted to add to or review the draft IEP, and therefore denied any input into the IEP development.
Parent 1 testified that she attended the IEP meeting that was held for the 2021-2022 SY remotely, and who attended the IEP meeting after looking the relevant IEP (Ex. DOE-2); how Parent 1 did not agree with the DOE IEP recommendation for Student and told the team that she disagreed with it; and how the school representative from the Attending School also did not agree with the recommendation.
As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting.[25] The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP". [26]
Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'". [27]
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child".[28] Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate.[29] Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. [30]
There are no specific assertions by Parent 1 or any of Parents’ witnesses to give any color to these allegations. When I compare the contents of The IEP with the Affiant 1’s testimony regarding what she had told the CSE team at the IEP meeting, much of it is included in The IEP, together with Parent 1’s concerns which were documented in The IEP, which supports a contrary finding, namely that the program was developed taking into account input at the CSE meeting from Parent 1, and the representatives in attendance from the Attending School. I therefore do not find any merit in these assertions based on the record before me.
Evaluations and Evaluative Material
It is asserted in the DPC (Ex. DOE-1), inter alia, that: for the SY in question the DOE failed to thoroughly and appropriately evaluate Student on a timely basis; and the IEP was not based upon sufficient evaluations and evaluative data.
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation [31]; however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary.[32] A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.[33] Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP.[34] In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.[35] A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status.[36] An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified. [37]
In the PWN is records that “At the IEP meeting held on 03/04/2021, to which you were invited, the assessments and materials identified below were reviewed and discussed …”. It lists three documents, namely a Psychoeducational Assessment dated March 17, 2019, a Social History - Updated dated March 27, 2019, and a report card dated February 25, 2021. These three documents were relied upon by the DOE in support of its Prong I burden (Ex. DOE-4, DOE-5, & DOE-6).
In the Social History - Updated it documents that update was conducted pursuant to the DOE’s obligation to conduct Student’s mandated three-year (or a triannual) evaluation (Ex. DOE-6-1).
This would have applied to the Psychoeducational Evaluation (Ex. DOE-5) as well, which was conducted at that same time. Accordingly, the obligation to conduct the next triannual evaluation did not fall due during the 2021-2022 SY.
The Psychoeducational Evaluation (Ex. DOE-5) documented the test procedures administered, namely: Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V); Woodcock-Johnson Tests of Academic Achievement-IV (W-J IV); Bender-Gestalt II; Vineland 3; Brief (Behavior Rating Inventory of Executive Function)/Parent; History and Background Questionnaire; Review of Records; and Clinical Interview/Mental Status Examination/Behavioral Observations.
The test results of the WISC-V found, inter alia, Student to be functioning at that time in the following qualitative categories: Low Average for Verbal Comprehension; Average for Visual Spatial; Low Average for Fluid Reasoning; Significantly Below Average/Deficient for Working Memory; Significantly Below Average/Deficient for Processing Speed; and Very Low (formerly Borderline) for Full-Scale IQ.
It was documented in the evaluation that Student’s weaknesses in regard to the working memory composite were noteworthy as adequate working memory is important as much of classroom-based learning, including, reading, reading comprehension, classroom discussions, and math problem solving, have a working memory component. With low working memory skills, Student could have difficulty concentrating and attending to information that was presented to Student. It was also noted that working memory could be affected by motivation, interests, cultural opportunities, attention span, anxiety, and ability to process auditory information.
Functionally, it was found that Student’s verbal/expressive language skills were decreased relative to Student’s ability to easily organize thoughts and express oneself in an understandable and age-appropriate manner, and carry on a clear, relevant, goal directed conversation. Student’s intelligibility was determined to be adequate. Functionally, Student’s receptive language skills were decreased relative to Student’s ability to easily recall, understand, grasp, as well as carry out task related demands. Student was able to easily carry out one step commands, and higher-level commands had to be repeated and clarified.
Functionally, Student’s attention/concentration skills were adequate for the most part, relative to Student’s ability to focus, and absorb information, as well as sustain attention/concentration. Student was found able to sit, attend, and focus for a reasonable amount of time before becoming distracted, and getting out of seat. Student worked at an adequate pace, displayed fairly consistent effort and persistence, and completed all tasks with structured guidance and redirection. Student’s impulse control, and frustration tolerance were found to be adequate.
Student was found to demonstrate weaknesses in regards to the verbal comprehension composite, which was highlighted as noteworthy as low scores on the verbal comprehension composite suggests Student would have difficulty applying Student’s verbal skills to the solution of new problems, have difficulty processing verbal information, and have difficulty thinking with words. It was noted that Student’s relatively weak verbal skills could place Student at risk for reading comprehension problems and may make it difficult for Student to keep up with peers in the classroom, as classroom activities often involve listening comprehension, verbal reasoning, and oral communication.
Student was found to demonstrate weaknesses in regard to certain aspects of the fluid reasoning composite, which was also highlighted as noteworthy as adequate fluid reasoning would be required for both reading comprehension, math problem solving, and with basic writing skills primarily in the elementary school years and being consistently related to written expression at all ages. It was found that with a deficit in this area, Student would likely have difficulty solving problems, with sequencing steps in a problem logically, and applying logical reasoning, as well as understanding and developing complicated concepts, as well as organizing and classifying ideas.
Given Student’s issues with processing speed, it was noted that Student could experience issues completing tasks quickly and efficiently and could require additional time and effort in order to complete tasks, and maintain pace with peers, particularly as task demands increase in amount and complexity.
Executive level functioning was assessed as it relates to those various higher level cognitive skills and Student’s performance on various tasks suggested concerns in regard to Student’s ability to sustain working memory, ability to initiate problem solving or activity, ability to self-monitor and track performance, ability to easily shift set, informational processing, and in regard to organization and planning problem solving approaches. Given these various issues, it was noted that Student could have difficulty relative to Student’s ability to hold information in mind for the purpose of completing a task and encoding information; Student could experience difficulty retaining complex, or multiple instructions, completing tasks involving multiple steps, and with multitasking.
It was also noted that Student could have difficulty monitoring Student’s own behaviors and performance as well as monitoring and keeping track of the effect or impact of Student’s behaviors on others; and could have difficulty starting or beginning an activity or task, working independently, have difficulty keeping up with classroom routines, as well as developing adequate problem-solving strategies for managing difficult tasks.
It was noted that Student could experience issues with organization/planning, goal, and solving approaches, have difficulty determining the most effective method or steps to attain a goal, and could result in Student feeling overwhelmed by large amounts of information. It was determined that Student could experience difficulty relative to Student’s ability to easily shift set and adjust to changes in routines or task demands, have difficulty dealing with transitions, alternating attention, thinking flexibly, or accepting differing perspectives. Student could also have difficulty with nonverbal problem solving and reasoning, difficulty with abstract verbal reasoning and problem solving, and have difficulty quickly and efficiently processing verbal, and or nonverbal information, and thus require more time and effort to complete such tasks.
It was found that there was no evidence of significant feelings of anxiety, or sadness, Although Parent 1 did report that Student has difficulty making friends, presents as somewhat stubborn, irritable, seems anxious, tends to worry excessively, seems attached to certain objects, and was preoccupied with details.
It was documented in the Social History – Updated that Parent 1 reported that Student was doing well with expressive and language skills, that when expressing oneself, Student’s sentences were clear and coherent, and that Student was good at following two and three step directions (Ex. DOE-6-2).
It was documented in The IEP that Student’s ELA teacher uses art and drawing work to motivate Student to increase reading skills and that it takes a while for Student to open up. Additionally, that Student’s assessment may not be the most accurate for Student and that a formal assessment might be different.
Notwithstanding the absence of formal assessments, I find that The IEP—consistent with the evaluative information noted above—identified Student's needs related to academia, social-emotional, and executive functioning. It was consistent not only with the Attending School’s progress report from the prior SY (Ex. DOE-4), but it incorporated the information which Affiant 1 testified to providing to the CSE team.
Based on the foregoing, even if the evidence in the hearing record supported a conclusion that neither the DOE’s Psychoeducational Evaluation and Social History Update nor the Attending School’s report card included testing results from the administration of formal assessments to Student (or the teacher reports provided by the Attending School), Parents did not advance any arguments regarding how such inadequacy, alone, should overcome the evidence showing that the March 2021 CSE team had sufficient evaluative information to identify Student's needs, and which was otherwise sufficient to develop The IEP. Consequently, I find that Parents' assertions relating to the sufficiency of the evaluations and the evaluative information are also without merit. Consideration of Evaluative Information and Present Levels of Performance (“PLOPs”)
It is asserted in the DPC (Ex. DOE-1), inter alia, that: the DOE did not make decisions based on Student’s individualized needs; the IEP’s related service recommendations were not sufficient to meet Student’s needs; the IEP does not include a sufficient description of Student and Student’s PLOPs, strengths, and weaknesses across all domains, settings, and people; and the PLOPs in each area are not reflective of the discussion that took place during the IEP meeting.
Affiant 1 testified, inter alia, as to: Affiant 1’s title, namely Consultant Teacher for the Lower and Middle School divisions at the Attending School since February 2020; Affiant 1’s duties and responsibilities; Affiant 1’s educational background, credentials, and work experience; how Affiant 1 liaises closely with the direct providers of each student to compile a comprehensive profile of the students individual needs and the current instructional/therapeutic focus to address those needs, which is done to present pertinent information at the IEP meeting; and how Witness takes notes contemporaneously during IEP meetings.
Affiant 1 attending and annual review IEP meeting with Parent 1 on March 4, 2021, and took comprehensive notes at the meeting that lasted 45 minutes; how neither the DOE nor its staff provided or held any new evaluations or social history updates for the meeting; how the DOE did not provide any documents that were reviewed or discussed at the meeting and relied solely on the written and verbal reports of the Attending School; and how classification was not discussed during the meeting.
How Student’s functioning levels at that time were determined by Student’s ELA teacher, who approximated Student’s grade level at a second grade level for listening comprehension, which is how Student mainly participates; how Affiant 1 also reported that Student was observed to have significant difficulty with decoding and that Student has clear handwriting; Student’s Math teacher (defined on page 32) reported that Student is extremely shy and has taking time to adjust to the new environment but is exhibiting progress in interacting and participating, as well as that Student’s grade equivalents was at 1.6 using the Star Math assessment, and that Student was doing better in person than virtually and was beginning to engage more with teachers and peers; and that Affiant 1 also reported that Student was becoming more responsive during individual counseling sessions and was starting to respond and interact verbally.
In developing the recommendations for a student's IEP, the CSE must consider: the results of the most recent evaluation of the student; the student's strengths; the concerns of the parent for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations.[38] However, neither the IDEA nor State law requires a CSE to "'consider all potentially relevant evaluations'" of a student in the development of an IEP or to consider "'every single item of data available'" about the student in the development of an IEP.[39] In addition, while the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs, the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it. [40]
According to the testimonial evidence in the hearing record and a review of The IEP itself, the PLOPs included in the IEP were based on the most recent evaluative information before the CSE and described the academic, developmental, and functional needs of Student.[41] For example, much of the PLOPs describe with specificity Student's academic skills and deficiencies in the areas of reading, writing, or math. When I compare the contents of The IEP with Affiant 1’s testimony regarding what she had told the CSE team at the IEP meeting, especially as regards Student’s PLOPs, much of it is included in The IEP verbatim. The contents of The IEP also reflects the Attending School’s assessment of Student’s PLOPs as detailed in the school’s progress report. In summary, the hearing record does support a finding that the CSE considered Student's most recent evaluations and adequately identified Student's PLOPs.
Furthermore, when I compare the related services recommended by the DOE in The IEP to the related services actually provided by the Attending School to Student during the 2021-2022 SY, they are identical (save that for OT the Attending School provided only one individual session, whilst the DOE recommended two, and the Attending School provided two group sessions, whilst the DOE recommended only recommended one). Therefore, based on the record before me, I also do not find any merit in the assertion that the IEP was not based upon Student’s individualized needs or that the IEP’s related service recommendations were not sufficient to meet Student’s needs. Annual Goals
It is asserted in the DPC (Ex. DOE-1), inter alia, that: the IEP goals were not appropriate or sufficient to address all of Student’s needs and the way in which Student’s disability impacts Student’s ability to learn and make progress in the curriculum; the IEP goals were vaguely written and did not include clear measurable targets and appropriate evaluation measures.
Affiant 1 testified, inter alia, as to how during the IEP meeting there was no discussion concerning postsecondary goals and also no discussion or review concerning annual goals, progress to last year's goals, or the goals being proposed and created for Student.
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability.[42] Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. [43]
The IEP contains ten annual goals which target skills related to reading, writing, math, receptive language, expressive language, socialization, coping and emotional regulation, and executive functioning (Ex. DOE-2-8 through DOE-2-18). Whilst not at the same level of detail as the goals prepared by the Attending School for the 2020-2021 SY, as reflected in the progress report disclosed by the DOE (Ex. DOE-4-3, DOE-4-5, DOE-4-9, DOE-4-11, & DOE-4-13), there are sufficient similarities enough to conclude that the Attending School’s goals were considered, if not used as a basis to prepare Student’s goals.
The PLOPs, developed as part of The IEP, provides insight into Student's needs with respect to specific reading, writing, and math skills, as well as Student's social-emotional needs. I find that the annual goals adequately addressed those needs. I also find that barring one annual goal, which only provided a method and schedule to measure the annual goals, the remaining nine goals provided the criteria, method, and schedule to measure Student’s annual goals.
In summary, the evaluative materials considered by the CSE and the inclusion of the ten annual goals in The IEP does not raise questions about the CSE's review of Student's needs and the adequacy of its determinations in reaching the terms of The IEP program 44 and I do not find any asserted deficiencies in regard the annual goals to have contributed to a finding that the DOE failed to offer Student a FAPE.
Challenges to the Assigned Public-School Site
It is asserted in the DPC (Ex. DOE-1), inter alia, that the DOE could not implement the IEP at the recommended placement. Parent 1 testified (T. P28-P37), inter alia, that she was concerned about District 75 “about some of the behaviors that are going on in that district”, and not wanting Student to pick up new behaviors. I do not find any substance to these baseless assertions, especially as Parent 1 did not testify that she either tried to visit the Proposed School or speak to any staff member of the Proposed School to obtain information about the Proposed School/Placement.
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself. 45 The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement". 46 Accordingly, when a parent brings a claim challenging the district's "choice of school, rather than the IEP itself . . . the appropriate forum for such a claim is 'a later proceeding' to show that the child was denied a free and appropriate public education 'because necessary services included in the IEP were not provided in practice'".[47] Therefore, if the student never attends the public schools under the proposed IEP, there can be no denial of a FAPE due to the parent's suspicions that the district will be unable to implement the IEP. [48]
44 L.O., 822 F.3d at 123. 45 R.E., 694 F.3d at 186-88. 46 See R.E., 694 F.3d at 195; E.H. v. New York City Dep't of Educ., 2015 WL 2146092, at *3 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 2015 WL 1244298, at *3 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). The Second Circuit has explained that when parents have rejected an offered program and unilaterally placed their child prior to implementation of the student's IEP, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013]) and that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187.
Additionally, the Second Circuit indicated that such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so.[49] In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP.[50] Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public-school site was not appropriate. [51]
As Student never attended the assigned public-school site pursuant to The IEP, any conclusion that the District would not have implemented Student's IEP or that the assigned public-school site could not meet Student's needs would necessarily be based on impermissible speculation, and the District was not obligated to present retrospective evidence at the IH regarding the execution of Student's program or to refute the Parents' claims. [52]
Other
It is asserted in the DPC (Ex. DOE-1), inter alia, that for the SY in question the DOE failed to thoroughly and appropriately develop a substantively and procedurally valid IEP; failed to offer Student an appropriate program and services; and violated Parents’ procedural rights [53]. Given these broad allegations, I also address the following assertions raised at the IH that were not expressly raised in the DPC:
Transition Plan
Parent 1 testified (T. P28-P37), inter alia, that Student would have been a very difficult time transferring to a new school, and that Student would “have to start from the beginning” and would regress in learning. It was documented in The IEP that Educational Advocate reported that Student would need a small school in order for Student to transition to a new placement (Ex. DOE-2-26).
Affiant 1 testified, inter alia, as to how Parent 1 had many reservations regarding the recommended program, including concerns about transitioning to a new program but indicated that she would observe any site recommended for Student; how Affiant 1 also addressed concerns about the recommendation, describing that Student required significant support; and how Affiant 1 expressed that she had concerns about the peer grouping and that Student benefits from the positive reinforcement of peers and was working to develop social skills and friendships.
Other than documenting transition support to be put in place and a period for Student to warm up as part of the PLOPs (Ex. DOE-2-3), The IEP did not consider a transition plan to move Student to a public-school placement. Although the parties did not agree to expand the scope of the IH to include the absence of a transition plan as one of the "'unaddressed issues'" to be resolved by me, neither the IDEA nor State law or regulations require any such plan to assist a student's transition from a non-public school to a public-school.[54] Even if Parents had raised the CSE's failure to consider a transition plan for Student in the DPC, the CSE was not obligated to create such a plan. I therefore find that the absence of a transition plan in The IEP does not result in a failure to offer Student a FAPE for the 2021-2022 SY.
8:1+1 Special Class Placement
Affiant 1 testified, inter alia, as to how the recommendation made at the meeting for Student was a 12-month District 75 8:1+1 classroom with related services of counseling two times per week individually, SLT two times individually and one time in a small group of two students, and OT two times individually and one time in a small group of two students. Per The IEP all these related services were recommended for 45 minutes per session (Ex. DOE-19). The IEP did also include a recommendation for individual Parent Counseling and Training once a month for 60 minutes, as well as Adapted Physical Education for three periods a week (Ex. DOE-2-18, & DOE-19).
Parent 1 testified (T. P28-P37), inter alia, as to: Student having [REDACTED] diagnosis that causes Student to have difficulty in school; how Student has difficulty reading, difficulty with math, and difficulty communicating, although Student can talk; how Student has self-esteem issues and needs supportive counseling to work on Student’s self-esteem issues and feelings; and how Student has weak hands and needs OT; and how Student needs a smaller classroom to be able to manage Student’s disability.
Parents’ Witness 1 testified (Ex. P-O; T. P21-P27), inter alia, as to:
Witness having reviewed Student’s proposed IEP for the 2021-2022 SY and the DOE 's recommendation for a 8:1+1 classroom ratio being highly inappropriate given Student’s Diagnoses (defined on page 32) and special education needs; how eight students in a self-contained District 75 setting would have inhibited Student’s social and emotional progress, especially post-pandemic, and would have caused Student to regress; how Student needed a higher level of support than that which the DOE proposed, necessitating two teachers in the classroom; how Student requires consistent opportunities for small group and individualized instruction, which was provided through the two-teacher model at the Attending School; and that without individualized attention, it would not be possible to monitor Student’s comprehension and ensure full access to the curriculum.
How in Witness’ opinion the IEP recommended for Student would not have enabled Student to make meaningful progress due to a lower level of instructional support (12:1:1) and the fact that the related services were not integrated into Student’s program to promote generalization; how without access to a small, supportive, and intensive special education learning environment with appropriate remediation and fully integrated clinical services, and the adaptive skill and social emotional curriculum, Witness believes that Student would have regressed academically, socially and emotionally.
There was no evidence from either party as to the student grouping within the Proposed School/Placement recommended in the School Location Letter and therefore any speculation as to that issue would be impermissible. Neither the IDEA nor federal regulations require students who attend a special class setting to be grouped in any particular manner. More importantly, however, I find that there was inconsistent testimony from Parent 1 and Parents’ Witness 1 as to the suitability or otherwise of the District’s Proposed School/Placement, such that it would be improper to rely upon either witnesses’ testimony in order to reject the DOE’s offer and to find a denial of a FAPE as a result.
Parents’ Witness 1 on the one hand testified that the DOE’s recommended 8:1+1 classroom ratio was highly inappropriate given Student’s Diagnoses, yet on the other hand testified that the IEP recommended for Student would not have enabled Student “to make meaningful progress due to a lower level of instructional support (12:1:1)” (Ex. P-O-11). The 12:1+1 class was not the placement recommended in the IEP and was one that was considered and rejected. Accordingly, Parents Witness 1’s inconsistent evidence must be received with circumspection. Parent 1 testified in cross-examination (T. P35-P36) that: she felt the class was too large, but did not even know the class size Student was receiving during the 2021-2022 SY at the Attending School, thinking that it was smaller but not knowing; she reached the opinion that the class size that the DOE recommended was too large, because it would be difficult for Student “to manage with that class size” because Parent 1 knows “how [Student] works and how [Student] handles things”.
Parent 1’s focus at the hearing was on the class size being too large, whereas at CSE meeting the level and staff ratio was the issue (Ex. DOE-2-3). The class size at the Proposed School/Placement was a smaller class size than the class size of the Attending School. During the second semester at the Attending School when the class size was twelve students, Student was able to cope with the number of students in the classroom and still was able to make progress.
Whilst Affiant 1 was aware of the correct recommended placement and notes it correctly in her affidavit, she only testified in regard thereto that “Parent had many reservations regarding this program, including concerns about transitioning to a new program, but indicated that she would observe any site recommended for [Student]. I addressed concerns about the recommendation as well. I described that [Student] requires significant support” (my emphasis).
No additional motivation was provided by Affiant 1 as to what those additional concerns might have been (Ex. P-P-5). State regulations in fact provide that an 8:1+1 special class placement is designed for students "whose management needs are determined to be intensive, and requiring a significant degree of individualized attention and intervention, . . . , with one or more supplementary school personnel assigned to each class during periods of instruction" (my emphases).[55] This is exactly what the CSE team determined Student needed, based upon Student’s Diagnoses, that Student “requires a small student to teacher ratio in a highly structured environment, the above mentioned management needs, counseling services, occupational therapy (“OT”), and speech-language therapy (“SLT”) to make adequate gains and progress towards [Student’s] individual goals (Ex. DOE-2-6). The recommendation is consistent with Parents’ Witness 1 and Affiant 1’s recommendations, even if it is not a placement at the Attending School.
In summary, the CSE's decision to recommend an 8:1+1 special class placement—together with annual goals; related services; and strategies to address Student's management needs—for the 2021-2022 SY was reasonably calculated to enable Student to receive educational benefits and offered Student a FAPE for the 2021-2022 SY.
Assistive Technology:
Affiant 1 testified, inter alia, that assistive technology was not discussed during the IEP meeting. This was not expressly raised in the DPC and even if it was it would not advance Parents’ case. Parent 1 testified that Student has difficulty reading, difficulty with math, and difficulty communicating, but that Student can talk. Additionally, the Attending School maintains that its program, services, and supports are appropriate, and Student is making progress, yet it provides not AT for Student as part of its program.
I find that this bald assertion, which was not documented in The IEP or any other school report, or even asserted by Affiant 1 as having been raised by her or any other team member at the IEP meeting in question, is without merit.
Management Needs, and Alternative Assessment Accommodations
Affiant 1 testified, inter alia, as to: how DOE Special Education Teacher (defined on page 32) reviewed Student’s management needs based on the teacher reports and how Affiant 1 expressed that Student was a new student to the school for the 2021-2022 SY [56], was very shy, had little self-confidence and was hesitant to engage with other students or adults; and how although the team made the recommendation for alternative assessment for Student, no alternative assessment accommodations were discussed.
State regulation defines management needs as "the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction".[57] State guidance provides examples of environmental modifications (i.e., consistency in routine, limited visual or auditory distractions, adaptive furniture), human resources (i.e., assistance in locating classes, following schedules, and note taking), and material resources (i.e., instructional materials in alternative formats). [58]
A student's management needs must be developed in accordance with the factors identified in the areas of academic achievement, functional performance, and learning characteristics, social development, and physical development, and reported in the student's IEP. [59]
To address Student's management needs The IEP contained the following strategies and supports (Ex. DOE-2-6): Using preferred, high motivating activities; Scaffolding; Graphic organizers; First & then approach (first to this and then draw); Social praise and encouragement; Visuals; Visual schedules; Individual schedule; Help with organization of Student’s belongings and Student’s day; Breaking tasks into steps; Narrating for Student what comes next; Space and time in order to participate where Student has visual supports (Student will put Student’s hood on); Repetition; Breaks when needed; Extra time to complete tasks; 1:1 or small groups for any assessments; and Directions repeated and simplified.
I find that Student's management needs were adequately addressed in The IEP, which are not only linked to Student’s documented PLOPs but also to some similar methods used by the Attending School staff to manage Student’s needs (such as using visuals). Affiant 1 also confirmed in her testimony that DOE Special Education Teacher reviewed Student’s management needs based upon the teacher’s reports (Ex. P-P-5). Additionally, the management needs expressly cater for 1:1 or small groups for any assessments.
Conclusion
I find that The IEP was designed to meet Student's individual needs and enable Student to make progress in the Proposed School/Placement. Having determined that the evidence in the hearing record establishes that the District sustained its burden to establish that it offered the student a FAPE for the 2021-2022 SY, Parents' claim for direct tuition funding for the cost of the private placement at the Attending School for the 2021-2022 SY is being dismissed.
Given this determination regarding Prong I, I would not be required to reach the issues of whether Student's unilateral placement at the Attending School was an appropriate placement [60], or whether any Prong III factors were to find application. I nevertheless address both Prong II and Prong III and my ultimate findings thereon, had the DOE failed to sustain its burden on Prong I.
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [61]
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[62] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [63]
The Judges in the Gagliardo case wrote that “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”[64] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parents’ representative presented testimony by Parents’ Witness 1, Affiant 1, and Parent 1 and submitted documentary evidence in support of the Parents’ position that the Attending School placement was an appropriate placement for the 2021-2022 SY.
Parents’ Witness 1 testified (Ex. P-O; T. P21-P27), inter alia, as to:
Witness’ title, namely the Assistant Head of School for the Middle School at the Attending School; Witness’ educational background, credentials, and work experience; Witness’ duties and responsibilities; the Attending School’s mission and program offering in general (Ex. P-B), as well as regarding the related services offered (intensive OT, SLT, physical therapy, counselling, and an integrated specialized session) including group sizes.
How during the relevant SY students were grouped into five cohorts full grades 6, 7, and 8 with each cohort having a maximum of twelve students [65], joined by one head teacher, an assistant teacher, and two paraprofessionals (including some of their responsibilities); how head teachers are certified by New York State and/or either have are in the process of completing a Master’s degree, and that the paraprofessionals are required to have a high school diploma and also receive professional development and training to develop these skills in the classroom; how the school psychologists, occupational therapists and speech therapists are required to be licensed and certified by NYSED, are provided with opportunities for and have undergone professional development and training in their respective fields; and how all related service providers have at least a Master’s degree in their field.
Witness’ familiarity with Student, who was a student in the middle school at the Attending School for the 2021-2022 SY, which included observing Student throughout the day during arrival, class time, lunch/recess, and dismissal; how Witness would regularly meet with Student’s teachers and service providers and discuss Student’s progress during weekly cohort and team meetings; and how the progress reports on record for the two semesters (Ex. P-I, & P-J) are an accurate depiction of Student’s 2021-2022 SY program, as well as Student’s skills and progress from the time the respective reports were finalized; how Student made gains and progress in ELA, and math, including what the Attending School worked on with Student in these areas, with detailed examples provided in support; how Student received SLT twice individually and once in a group, counselling sessions twice per week (group and individual), and OT once individually and twice in a dyad in the school's sensory gym, which transitioned to the school’s new integrated specialized session in the second semester in a group of three; how Student has been progressing in these sessions and what was being worked on, which also included inter alia weekly collaboration and consultation between Student’s teachers and other related services providers, additional integrative services including push-in support during classroom activities/lessons, community walks, lunch and recess support, and class trips.
How Witness strongly believed that the Attending School was an appropriate placement for Student for the 2021-2022 SY; how the school’s team of educators, therapists and related service providers, worked closely together to be on the same page about how to support Student in all domains including socialemotional and academics; and how they helped Student to generalize these skills, using the same language, methods, and techniques, whether the Student was in the classroom or in a session.
How for the 2021-2022 SY the school was fully in person, but that there were a few days that Student would have been on remote instruction; how the remote program was the same as the school’s in-person program, being a full day of school still following a regular schedule, however just on Zoom; and confirming that the Class Schedule on record (Ex. P-F) related to the regular SY, namely from September until June of the 2021-2022 SY, whilst the other Class Schedule on record (Ex. P-H) was the Student’s summer schedule and limited to the summer of the 2021-2022 SY.
Affiant 1 also testified, inter alia, regarding: Student, assessments of Student, Student’s difficulties, and ways that these were addressed by the Attending School, with the supports provided; what Student was working on and what Student needed to continue working on in academics and the related services sessions, with detailed examples provided.
Parent 1 testified (T. P28-P27), inter alia, as to Student having demonstrated progress during the relevant school year, including making more strides in communication skills, some of Student’s math skills, and a little bit of Student’s reading.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with special needs who struggle to function in a general education setting, requiring a small class size with a low student-to-teacher (or high staff-to-student) ratio, individualized programming and curricula, and small group instruction. The entire program, including the learning methodologies and the supports provided are designed to meet the needs of this class or category of student. I find that Student’s educational needs, as documented in The IEP, were met given the level of education, supports, and services provided by the Attending School.
The testimony of Parents’ Witness 1 and Affiant 1, as well as the school’s two progress reports (Ex. P-I, & P-J) provide ample examples of how Student’s teachers specifically tailored the program for Student. This evidence was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parents’ witnesses, and supports Parents’ and Parents’ witnesses’ assertions that the Attending School was (and is) an appropriate placement for Student. The testimony of the Parent 1, Parents’ Witness 1, Affiant 1 and the Parents’ documentary evidence (Ex. P-B, P-E through P-J, & P-M through P-P) establishes that the Attending School was appropriate and did provide Student with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by such services that were necessary to permit Student to benefit from instruction, for the 2021-2022 SY.
I also find that, based on the Student’s attendance at the Attending School for the 2021-2022 SY, as testified to by Parents’ witnesses and reflected in the two school progress reports (Ex. P-I, & P-J) Student made progress.
Accordingly, but for the DOE prevailing on Prong I, I would have found that Parents had met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [66]
The IDEA also provides that reimbursement/funding 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. [67]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing 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.” [68]
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.” [69]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [70].
The hearing record reflects that Parents, through Parents’ representative, notified the CSE by correspondence dated June 17, 2021 71 of Parents’ intention to enroll Student at the Attending School and seek public funding for the 2021-2022 SY (Ex. P-D). I find that in this letter Parents offered sufficient information (albeit rather general assertions) to put the DOE on notice about Parents’ concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parents’ intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [72]
Although it is apparent from the record that Parents signed a contract enrolling Student in the Attending School prior to the start of the 2021-2022 SY, in the month prior to providing the CSE the ten-day notice, namely on May 5, 2021 (Ex. P-K), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.”[73] I find that the timing as to when the ten-day notice was sent to the CSE to have been of no consequence to Parents’ claim, had the DOE not prevailed on Prong I.
Amounts Claimed:
Parent 1 signed an Enrollment Contract enrolling covering tuition and related service costs for Student’s enrollment at the Attending School for the 2021-2022 SY (Ex. P-K-3). Affiant 2 (defined on page 32), employed at the Attending School as Vice President, confirmed, as of August 24, 2021, the total contracted annual tuition rate of $90,525.00 owing to the Attending School for the 2021-2022 SY for Student’s enrolment from July 1, 2021 through August 12, 2021, and from September 13, 2021 through June 17, 2022 (i.e., the extended SY), and that the amount was still due and owing to the Attending School (Ex. P-L-1). This evidence is consistent with the contents of the Enrolment Contract (Ex. P-K-1). Parents’ obligation to pay is evidenced in the Enrollment Contract.
71 I requested proof from Parents’ representative of the ten-day notice being sent to the DOE. I received a copy of the DOE’s response to Parents’ representative’s firm dated July 9, 2021. In the response the DOE notes having received Parents’ representative’s letter dated June 17, 2021 (Ex. IHO-I).
As to Parents’ ability to pay, Parent 1 testified (T. P33-P34) that Parents did not pay the Attending School any money for the 2021-2022 SY, because they could not afford it notwithstanding both Parents work. Parent 1 also testified that if parents do not prevail in these proceedings, they would have to make arrangements to pay the school Student’s tuition for the 2021-2022 SY because Parent 1 assumed and was pretty sure that the school would “have to get paid one way or the other”. District’s representative asked Parent 1 if she had a conversations with the Attending School about the obligation to pay, who answered that she did not have conversations. District’s representative also asked Parent 1 if she knew how the tuition would get addressed if Parents did not prevail in these proceedings, to which Parent 1 responded “I’d have to somehow come up with the money. I don’t know how to be honest” (T. P36).
It was Parents' burden of production and persuasion with respect to whether they had the financial resources to "front" the costs of the services [74]. Outside of the bald allegation that Parent cannot afford it, Parents failed to demonstrate an inability to pay. There was no evidence in the hearing record regarding Parents' financial resources, such as a copy of a recent tax return or evidence regarding Parents' assets, liabilities, income, or expenses [75]. Given the lack of information in the hearing record regarding Parents' financial resources, direct payment would not have been an appropriate form of relief, had the DOE not prevailed on Prong I.
I did not find any factors applicable that would have warranted a reduction of the claim for tuition funding. There were, cumulatively, not an insubstantial number of absent days, namely 15 days for the summer months (Ex. P-J-1), and twenty-seven for the regular SY (Ex. P-I-1), which may otherwise have warranted a pro-rata deduction. Given however that it was not raised by the DOE and that it was all excused absences (Ex. P-M-1, & PN-1), I would not have made a deduction based thereon had the DOE not prevailed on Prong I. Additionally, it was noted in The IEP that while attending remote counselling in the home Student had difficulty staying on screen and did not respond to any attempts to engage (Ex. DOE-2-4). District’s representative confirmed however during cross-examination of Parent’s Witness 1 that there were only a minimal number of days where Student had remote instruction during the 2021-2022 SY. As a result, it would not have been a sufficiently significant factor to have warranted a deduction based on that fact alone.
I therefore would have found, had the DOE not prevailed on Prong I, that Parents would have met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement only for the cost of Student’s placement at the Attending School for the 2021-2022 SY, but not for direct funding.
Remaining Relief:
As part of the proposed relief in the DPC, Parents had requested an order for the DOE to: i) fund/reimburse the costs of Parent 1’s out-of-pocket expenses for tuition for Student’s placement at the Attending School; and ii) provide and/or pay for appropriate special transportation to and from the Attending School for Student. Given my finding on Prong I, the record does not support any such claims which were in any event not pursued at the IH. I also note that Parents’ Witness 1 confirmed that most students travel to and from the school by bus service that is provided by the DOE Office of Pupil Transportation and for which, Witness believed, the DOE was solely responsible to provide to the Attending School students (Ex. P-O-6).
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby ORDERED that, Parents’ claim for direct funding for Student’s placement at the Attending School for the 2021-2022 school year in the sum of $90,525.00 (Ninety Thousand, Five Hundred and Twenty-Five Dollars) is dismissed.
SO ORDERED.
DATED: May 18, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
[REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENTS’ EXHIBITS
P-B. P-A Withdrawn76 - - Program Description P-C Withdrawn77 - - Undated 7 pages
P-D. Ten Day Notice 06/17/2021 2 pages
P-E. Remote Class Schedule 2021-2022 1 page
P-F. Class Schedule 2021-2022 2 pages
P-G. Academic Content Skills 2021-2022 5 pages
P-H. Class Schedule 2021-2022 1 page
P-I. Progress Report 06/17/2021 26 pages
P-J. Progress Report 02/04/2021 24 pages
P-K. Enrollment Contract 05/05/2021 3 pages
P-L. School Affidavit 08/24/2021 1 page
P-M. Attendance Record 2021-2022 Summer 1 page
P-N. Attendance Record 2021-2022 1 page
P-O. Affidavit of Parents’ Witness 1 04/24/2023 11 pages
P-P. Affidavit of Affiant 1 04/20/2023 6 pages
DOE’S EXHIBITS
DOE-1 DPC (plus email proof of sending to the IH Office) 02/02/2023 5
DOE-2 IEP 03/04/2021 28
DOE-3 Prior Written Notice and School Location Letter 06/18/2021 6 DOE-4 Progress report 02/05/2020 17 DOE-5 Psychoeducational Evaluation 03/17/2019 12 DOE-6 Social History Update 04/01/2019 3
IHO’S EXHIBITS
I. DOE’s response to Parents’ representative’s Ten-Day Notice 07/09/2023 76 Ex. P-A was a duplicate of Ex-DOE-1 and therefore withdrawn (T. P19). 77 Ex. P-C was a duplicate of Ex-DOE-2 and therefore withdrawn (T. P17). 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Student was REDACTED-years old at the start of the 2021-2022 extended SY.
[3] 20 U.S.C. § 1400 et seq.
[4] 34 C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] 8 NYCRR § Part 200.
[7] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[8] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[9] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[10] 20 U.S.C. § 1415[f][3][E][i].
[11] Rowley, 458 U.S. at 203.
[12] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[13] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[14] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[15] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[16] NYS Educ. Law § 4404(1)(c). The burden was also confirmed by the parties’ representatives at a prior SC (T. P7).
[17] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[18] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[21] R.E., 694 F.3d at 186; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013].
[22] See L.B., ex rel. E.B., v. New York City Dep’t of Educ. where the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238- 39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included).
[23] 20 U.S.C. § 1414[d][1][B]; Educ. Law § 4402[b][1][a]; and 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1].
[24] Educ. Law § 4402[b][1][a][iv]; 8 NYCRR 200.3[a][1]; see 20 U.S.C. § 1414[d][1][B].
[25] T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2].
[26] T.P., 554 F.3d at 253; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2011], aff'd 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010].
[27] DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; B.K. v. New York City Dept. Of Edic., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination].
[28] 20 U.S.C. § 1415[b][1].
[29] 34 CFR 300.322; 8 NYCRR 200.5[d].
[30] See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P., 2015 WL 4597545 at *8, *10; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192; "[T]he IDEA only requires that the parents have an opportunity to participate in the drafting process'" (D.D-S., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree]).
[31] 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].
[32] 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4].
[33] 8 NYCRR 200.4[b][3].
[34] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[35] 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x].
[36] 20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii].
[37] 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018.
[38] 34 CFR 300.324[a]; 8 NYCRR 200.4[d][2].
[39] T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 340 [S.D.N.Y. 2013], quoting F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581-82 [S.D.N.Y. 2013]; L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016]; M.Z., 2013 WL 1314992, at *8).
[40] 20 U.S.C. § 1414[d][3][A]; M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *7-*9 [S.D.N.Y. Oct. 12, 2011].
[41] 34 CFR 300.324[a]; 8 NYCRR 200.4[d][2].
[42] 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii].
[43] 8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3].
[47] F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014], quoting R.E., 694 F.3d at 187 n.3.
[48] R.E., 694 F.3d at 195; E.H., 2015 WL 2146092, at *3.
[49] M.O., 793 F.3d at 244.
[50] See M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 222 F. Supp. 3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016].
[51] See K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016].
[52] R.B., 589 Fed. App'x at 576; F.L., 553 Fed. App'x at 9; K.L., 530 Fed. App'x at 87; R.E., 694 F.3d at 187 & n.3.
[53] It was noted in The IEP that Due Process Rights were discussed (Ex. DOE-2-4). This documented fact was not placed in issue by Parents in these proceedings.
[54] See A.D., 2013 WL 1155570, at *8; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *9 [S.D.N.Y. Oct. 16, 2012], aff'd, 2014 WL 53264 [2d Cir. Jan. 8, 2014]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 505 [S.D.N.Y. 2011]; E.Z-L. v. New York City Dep't of Educ., 763 F. Supp. 2d 584, 598 [S.D.N.Y. 2011], aff'd sub nom. R.E., 694 F.3d 167; R.E., 694 F.3d at 195.
[55] 8 NYCRR 200.6[h][4][ii].
[56] Given that Student attended the Attending School during the prior SY (Ex. DOE-4), new cannot be taken to mean that Student was enrolled at the Attending School for the first time during the 2021-2022 SY.
[57] 8 NYCRR 200.1[ww][3][i][d].
[58] "Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 20, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEP guideDec2010.pdf.
[59] 8 NYCRR 200.1[ww][3][i][d], 200.4[d][2][i].
[60] See Burlington, 471 U.S. at 370; M.C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000].
[61] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[62] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[63] Gagliardo, 489 F.3d at 115.
[64] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[65] It is noted that for semester I Student was in a cohort of seven students (Ex. P-O-6).
[66] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 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"].
[67] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[68] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[69] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[70] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[72] Greenland Sch. Dist., 358 F.3d at 160.
[73] C.L., 744 F.3d at 840.
[74] Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12- 004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041.
[75] Application of a Student with a Disability, Appeal No. 23-052.