New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595923 - NYC: 245575

FINDINGS OF FACT & DECISION

Case No. City/State: 245575 / 595923

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

School: [REDACTED] (hereinafter referred to “Private School”)

Hearing Dates: 9/27/23; 10/25/23

Actual Record Close: December 13, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: December 27, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Program Supervisor, Private School

For the Department of Education:

[REDACTED], ESQ., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) dated February 2, 2023 regarding the 2022/23 school years (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to recommend and implement an appropriate program. (P-Ex.A). The Parent has requested direct tuition funding to Private School for the 2022/23 school year. (P-Ex.A; T.pg.45-46). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on February 3, 2023. A Pre-hearing Conference was held on March 17, 2023. Status Conferences were held on 4/4/23; 5/9/23; 6/8/23; 6/29/23; and 7/26/23, at which time a Hearing was scheduled for September 27, 2023. At the September 27th Hearing, Parent’s request to adjourn was granted to October 25, 2023. (T.pg.39-40).

At the October 25th Hearing, District did not present a case with either exhibits or witnesses. (T.pg.40). The Parent presented exhibits that were entered into evidence and the testimony of one witness.^[3] (T.pg.40-41).

Seven joint/unopposed requests to extend the compliance date were granted. The record closed on December 13, 2023.

FINDINGS OF FACT

Parent’s DPC was uncontested. As set forth therein, entering into the 2022-2023 School Year, the last Individualized Education Services Program (“IESP”) that the Department of Education (“DOE”) created for the Student was at a meeting held on March 11, 2021, where the DOE recommended that the Student receive five periods per week of Special Education Teacher Support Services (“SETSS”). The DOE also recommended that the Student receive the following related services: (1) Occupational Therapy (1:1) twice a week for thirty minutes; and (2) Speech Language Therapy (1:1) twice a week for thirty minutes. (P-Ex.A; B).

The DOE created a subsequent Individualized Education Program (“IEP”) for the Student at a meeting held on October 25, 2022, where the DOE recommended that the Student receive Integrated Coteaching Services for 20 periods per week. The DOE also recommended that the Student receive the following related services: (1) Occupational Therapy (1:1) twice a week for thirty minutes; and (2) Speech Language Therapy (1:1) twice a week for thirty minutes. (P-Ex.A; C).

Parent asserted that the IESP and IEP were inadequate and insufficient to meet Student’s academic, social, and behavioral needs for the 2022-2023 school year. Parent asserted the Student needs a full time special education classroom of up to 12 students, 1 teacher, and 1 assistant, the development and implementation of a behavioral intervention plan, and the related services recommended for him on his last IEP to make meaningful progress for the 2022-2023 school year and to meet all of his academic, social, and behavioral needs. (P-Ex.A).

Parent asserted that Student is challenged with significant cognitive, language, behavioral, physical, self-care, and sensory deficits and delays. An assessments found extremely low communication and socialization skills. Parent asserted Student’s communication delays impede his functioning in classroom and social settings. Student speaks with poor articulation and does not talk in comprehensive sentences. He gets distracted by the slightest stimuli and struggles to maintain a conversation. The student does not hold proper eye contact, lacks social skills, and asks teachers and peers inappropriate and intrusive questions. He struggles to conform his behavior to teacher’s expectations and is often found wandering around the classroom. He displays a temper and engages in non-compliant behaviors. He purposefully disturbs the teacher’s lesson by talking to peers or banging on his desk. He procrastinates tasks and resists the teachers’ assistance for any academic task. (P-Ex.A; H).

Student is severely cognitively impaired, he struggles to master new skills due to his poor processing and higher order thinking skills. He does not grasp abstract concepts and has poor memory. Student lacks visual perception skills, has difficulty reading information off the board, and has poor handwriting. Student’s cognitive delays affect his participation in lessons. He struggles to understand the teacher’s lesson, which leads him to lose focus and engage in off-task behaviors. Student cannot focus for more than five to ten minutes, he often begins to fidget and distract himself. Student is known to distract the teacher numerous times a day. He argues with his peers and refuses to listen to his peers’ opinions. (P-Ex.A; H).

Parent asserted as a result, Student required an educational program in a full-time special education class of up to 12 students, 1 teacher, and 1 assistant for the 2022-2023 school year. (P-Ex.A).

Private School Program Director testified the IESP and IEP were not appropriate to meet Student’s needs. Program Director testified the IESP described Student challenges in detail, especially his behavioral challenges. It described Student as very difficult, very complicated, and very delayed. The IESP was totally insufficient to meet the needs of a Student with such extensive needs and delays. Program Director testified the IEP recommended integrated coteaching, but did not provide a full-time special education program. ICT would have been insufficient for his needs based on the class of up to 27 students and the lack of ability for him to focus in even a small class size. Student would not have been able to focus and attend or achieve any kind of academic success in such a large class size.

In addition, neither the IESP not the IEP had a behavior intervention plan checked off, which Program Director testified, “…is so imperative for him to even be able to be in the classroom period.” (T.pg.61-62).

On September 19, 2022 the Parent notified the DOE she had not received a proper or adequate placement for the 2022-2023 school year and requested the DOE conduct an individual psycho-education evaluation as well as an evaluation for Counseling Services and that an IEP meeting be reconvened and updated to reflect the results of the evaluations and of Student’s current needs. In addition, she requested that Student be placed in a full-time special education classroom and that if the DOE cannot offer Student an evaluation and placement for the 2022-2023 school year of her intent to unilaterally place Student in Private School. (P-Ex.A; I). Parent sent another notice on January 17, 2023 notifying the DOE that Student has not received a proper educational and school placement for the 2022- 2023 school year and of her intent unilaterally place Student in Private School. (P-Ex.A; J).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District did not present a case regarding the 2022/23 school year. Parent’s claims regarding the denial of FAPE were not disputed with factual evidence. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT

The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent presented the testimony of Private School Program Director, who testified Private School’s middle school program is designed for Students with behavioral challenges primarily, and language delays as a secondary. Some of them have academic challenges as well, but not all of them. The Program follows the Common Core general education curriculum, modified to accommodate each student as they need aligning with the ABA methodology. The Program is specifically designed to incorporate social skills, instruction, and direction, as well as creative structure in an environment that is specific to that individual student by manipulating materials, people, and environment. (T.pg.51-52; P-Ex.D). Program Director testified for the 2022/23 school year, Student was in a class with nine students altogether, including Student. All students had special needs and there were opportunities to interact with typically developing peers. There was one licensed special education teacher at all times in the class and assistants. (T.pg.53-54). Program Director testified to Student’s behavioral challenges, including his lack of focus and attention, impulse control, and language processing. (T.pg.54-56). Academically his classroom functioning is very difficult given the fact that his speed of responding is very slow. Student has a hard time following decorum within a classroom and then has a hard time following through based on his lack of focus and attention. His actual skills are weak because his actual time spent on tasks is decreased. So for reading, language, literacy, everything across the board is pretty much on the same grade level, consistently far behind. (T.pg.57-60; P-Ex.H). Private School began with a functional behavior assessment identifying those challenging behaviors that were impacting and impeding on Student’s classroom acquisition of information and skills. Private School developed a behavior intervention plan that provided proactive instruction and reactive approaches to each of those targeted behaviors. Private School also created replacement behaviors and techniques to provide Student with a skill and opportunity. Private School created a treatment plan incorporating all areas of Student’s needs for academic success -- language, communication, social, behavior, and then the reading, writing, literacy. The treatment plan has small incremental goals in each targeted area. Data is collected to track progress. (T.pg.63-65; P-Ex.H).

Student also received related services. (T.pg.70-71). Program Director testified to the progress Student made both behaviorally and academically. (T.pg.65-70; P-Ex.H). Program Director testified to the religious portion of the program. (T.pg.71). With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that the Private School was an appropriate placement for the Student for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent asserted she provided notice by letter dated September 19, 2022. (P-Ex.A;I). Student was enrolled on September 8, 2022. (P-Ex.E). Since the tuition is being reduced by $5,000 for religious content, and given that the District had not responded to the Parent’s notice of unilateral placement, I find Parent’s notice to be timely and reasonable.

2. The Parent’s actions were reasonable. The District failed to establish Parent prejudiced the District.

In balancing the equities, I find in favor of the Parent.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during 2022/23 school year. I further find that placement at Private School is appropriate. Parent is entitled to direct tuition funding at Private School for the 2022/23 school year, reduced by $5,000 for religious instruction.

Parent’s remaining claims are rejected for lack evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDER THAT, the District shall directly fund all Private School tuition and fees for the Student’s placement at Private School for the 2022/23 school year, reduced by $5,000.

SO ORDERED

DATED: December 27, 2023

David R. Gronbach

David R. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

N/A

PARENT EVIDENCE

A. Request for Due Process Proceeding 02/02/2023 7 pages

B. IESP 03/11/2021 12 pages

C. IEP 10/25/2022 25 pages

D. Student Contract, Program Description, and Curriculum 08/29/2022 21 pages

E. Affirmations regarding Tuition Breakdown and Payments 10/18/2023 2 pages

F. Curriculum Schedule 2022-2023 1 page

G. Student Attendance 2022-2023 1 page

H. Assessments, Plans, and Reports Various 26 pages

I. Request for Evaluation, IEP, and Placement/Ten Day Notice 09/19/2022 2 pages

J. Follow Up Ten Day Notice 01/17/2023 2 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.