New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596004 - NYC: 245648

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 245648

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

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: February 4, 2023

Hearing Dates: June 21, 2023

June 27, 2023

Actual Record Close Date: July 7, 2023

Decision Date: July 21, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 21, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Director at Private School

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Special Education Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 26, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about February 6, 2023, regarding the 2022/23 school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide an appropriate program and placement for the three school years (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School, and transportation for the 2022/23 school year (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on February 7, 2023. A prehearing conference was held on March 15, 2023, to discuss the issues in the case. At that time a District Representative informed us that the matter was under investigation (See, Transcripts). ^[2] Status conferences were held in April and May where the District indicated that the matter was not being referred for settlement. A hearing was held on June 21, 2023, and concluded in two days on June 27, 2023.

The District presented documents and one witness. The Parent presented documents^[3] and two witnesses by affidavit. The record closed on July 7, 2023. There were three extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student is an [Redacted] year old student, attending the Private School during the 2022/2023 school year (P-Ex. A). The Student is classified as a student with a Learning Disability (D-Ex. 1). The Student is diagnosed with Specific Learning Disorder with Impairments in Reading, Writing and Math; and Attention Deficit Hyperactivity Disorder (“ADHD”) (D-Ex. 4; P-Ex. D; M-1). The Student was described as having weaknesses in decoding, reading comprehension, sentence structure and math problem solving (P-Ex. M-1).

The Special Education Teacher (“Sped Teacher”) for the District testified that he participated in an IEP meeting on December 13, 2021, which was the meeting to develop the Student’s IEP for the 2021/22 school year (T. 56-59; D-Ex. 1). At that meeting, the CSE had updated reports and an addendum to a neuropsychological (T. 60; D-Ex. 4). For the 2021/22 school year, the CSE recommended an ICT classroom with 5 periods of SETSS, 3 periods of speech and 1 period of counseling (T. 61; D-Ex. 1-25; P-Ex. M-2). The Parent expressed her concerns with the large class setting and the Student’s attentional issues (P-Ex. M-2). The Parent did not believe the Student was ready to transition from the small, supportive, individualized setting and continued to need a small classroom (P-Ex. M-2). The Parent disagreed with the goals and the recommended management needs (P-Ex. M-3). The Parent then had the Student evaluated again in January 2022 and shared the evaluation with the District (P-Ex. D; M-3).

The Sped Teacher testified that he did not participate in the IEP meeting for the 2022/23 school year, which was held by another team (T. 56-59, 74).

The Parent testified by affidavit, that on August 19, 2022, they attempted to contact the proposed placement and left messages for the Assistant Principal and parent coordinator (P-Ex. M-3). Once they heard back from the school, they were unable to set up a visit but requested information about the program, which they received (P-Ex. M-3). The Parent continued to disagree with the recommendations and placement and sent the District a ten-day notice on August 22, 2022, notifying the District of their concerns, their intent to place the Student at the Private school, and seek reimbursement for the 2022/23 school year (P-Ex. M-4).

CONCLUSIONS OF LAW

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

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

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

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

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

Here, the District presented the Sped Teacher who testified that he did not participate in the IEP meeting for the 2022/23 school (T. 57-58). He participated in the IEP meeting that developed an IEP for the 2021/22 school year, on December 13, 2021 (T. 58-59). Unfortunately for the District that was the only IEP entered into the record. The IEP for the 2022/23 school year was not presented and not discussed so there was no evidence in the record regarding what was recommended for the Student for the 2022/23 school year. It appears from the lack of evidence that the Parent was not provided with a copy of the IEP for the 2022/23 school year either, since they only raised their concerns for the recommendations made in the December 2021 IEP. According to the District’s witness, there was another IEP meeting held after the December 2021 IEP meeting (T. 57-58, 74). Based on the District’s own witness’ testimony, and the lack of evidence regarding the 2022/23 school year, the District failed to meet its burden and I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Director of the Intermediate Division at the Private School (“Director”) testified by affidavit regarding the Student and the School (P-Ex. L). The duties of the Director include supervision, management, and coordination of all academic, operational, and personnel functions related to students, faculty, and parental partnerships (P-Ex. L-1). The Private School was described as an Independent pre-kindergarten, elementary and middle school setting for bright students with learning differences (P-Ex. L-1). The mission of the Private School is to provide a rich, rigorous and nurturing environment for bright students with learning disabilities, so that they can gain skills and confidence (P-Ex. L-2). They use special education techniques, including explicit, sequential, direct, multisensory instruction (P-Ex. L-2).

The Private School is ungraded with students from ages three to 14 years old (P-Ex. L-2). There were about 387 students at the Private School during the 2022/23 school year (P-Ex. L-2). All classroom faculty have at least 30 hours of training in Orton Gillingham, which is a structured, sequential, systematic approach to reading, which involves multisensory instruction and a strong emphasis on phonics and morphology (P-Ex. L-2). The Private School is committed to providing teachers and therapists with ample opportunities for professional development (P-Ex. L-2). All faculty participate in a two-week Institute just before school begins in the Fall and in addition to the 30 hours of Orton Gillingham training for new teachers and therapists, the Private School covers more advanced topics in reading as well as instructional methods in mathematics, writing, curriculum design and social emotional learning (P-Ex. L-2). Professional development is also provided throughout the year during biweekly faculty meetings and on administrative days (P-Ex. L-2). Students at the Private School have language-based learning disabilities, which range from expressive and receptive language problems, to dyslexia, dyscalculia, or ADHD (P-Ex. L-2). Intermediate Division classes have 11 students with one head teacher and one assistant teacher (P-Ex. L-2). Reading and math classes are broken out into small groups of five or six students and are grouped by ability rather than age, so students are on similar math levels in their math groups, similar levels for their reading groups, and similar ages and social skills levels for their homeroom classes (P-Ex. L-2). The homeroom class has an age range of approximately a year and a half and students are grouped based on academic needs and learning styles (P-Ex. L-2).

In the Intermediate Division, students take responsibility for their education (P-Ex. L-2). They collaborate closely with teachers to set personal goals and expectations (P-Ex. L-2). Individualized instruction focuses on helping students build self-awareness and advocate more articulately for themselves (P-Ex. L-2). The Middle School offers electives in which students participate in clubs, project-based learning, student advocacy, and transition preparation classes (P-Ex. L-2). The coursework offers students dynamic, experiential learning opportunities that capitalize on personal interest and choice (P-Ex. L-2-3). Reading groups are based on students’ demonstrated ability to decode and comprehend sentences, passages, and stories (P-Ex. L-3). While the texts students read vary, all students build on their structural base of language through ongoing Orton-Gillingham training, age-appropriate materials selected for their individual reading level, and vocabulary expansion through morphology (P-Ex. L-3). In small groups and during individual instruction as needed, students build the basic math skills to solve simple equations and eventually more complex problems (P-Ex. L-3). All students are introduced to pre-algebra concepts in the Middle School and are well prepared for all types of math content in high school (P-Ex. L-3). By teaching each math skill to mastery, they help students develop the fundamental understanding needed to achieve at their highest level (P-Ex. L-3). Continuing to build on the foundation of the Writing Program, students embrace progressively more independent and complex research papers, summaries, and persuasive assignments (P-Ex. L-3). Students are encouraged to find the research and writing system that works best for them, which will be a skill they will use throughout their educational careers (P-Ex. L-3).

The Private School also provides students with Speech Language Therapy and Occupational Therapy (“OT”) (P-Ex. L-3). The therapists are dedicated to the classroom environment and combine push-in and pull-out sessions, whole group, small group, dyad and individual sessions (P-Ex. L-3). The Speech Language Pathologists are assigned to advisory classes and content area classes, and support the students within the context of the class and work with the content teachers to develop the curriculums (P-Ex. L-3). The Pathologists also work with the students individually for language remediation and provide support as push-in and pullout sessions in academic classes as needed (P-Ex. L-3). With a collaborative team, they are able to carry over much of what the student is learning between the classroom and therapeutic sessions (P-Ex. L-3). The fluid therapeutic model allows for increased individualization of support, in response to skills and deficits seen in and outside of the classroom or therapy session (P-Ex. L-3). It also gives therapists the opportunity to work on a skill in a therapy session, then see the skill in the more natural classroom setting to see how the skill generalizes to that environment (P-Ex. L-3).

The Student has attended the Private School since September 2019, and was in the Intermediate Division class overseen by the Director during the 2022/23 school year (P-Ex. L-3). The Student was described as kind, cheerful, hardworking and has adjusted well to rising expectations (P-Ex. L-3). His overall learning is greatly impacted by his language-based needs, attentional weaknesses and he struggled with oral expression and listening comprehension across subject areas and had weaknesses in processing speed (P-Ex. L-3). As a learner, the Student did best with explicit, multisensory, and repetitive instruction coupled with integrated language support (P-Ex. L-4). Specifically, he required opportunities to use learned strategies and tools to create and solve problems, ample amount of repetition, and access to reference materials, as well as scaffolds to engage in oral or written discussion about a previously learned topic (P-Ex. L-4). The Student met with a language therapist in a dyad and as a push-in to therapeutically support his receptive and expressive language needs (P-Ex. L-4). The Student required joint attention prior to someone giving him directions due to his auditory comprehension skills that were impacted by his attentional level (P-Ex. L-4). He had challenges as passages increased in length, his attention decreased, and he struggled to answer questions related to curricular content (P-Ex. L-4). While he has the ability think critically, he could not always explain himself and required support with word-finding and organization (P-Ex. L-4). He struggled to retrieve specific words and needed aids such as guided questions and sentence starters (P-Ex. L-4). The Student received push-in language support during writing to facilitate the writing process, such as modeling and visual organizers (P-Ex. L-4). He benefited from a small class size in which he could comfortably advocate when he needed support from a teacher (P-Ex. L-4). With those supports, coupled with his internal motivation, the Student made gains across all subject areas over the course of the 2022/23 school year (P-Ex. L-4). For the 2022/23 school year, the Student was placed in a cluster of peers of equal intelligence and potential who had similar learning profiles and interests (P-Ex. L-4). The Student’s advisor and his content area teachers were either general or special educators with master’s degrees or working toward their master’s degree in special education (P-Ex. L-4). The language curriculum was programmatic and infused throughout the program (P-Ex. L-4).

The Student particularly benefited from the small-class size where he could participate frequently, have clear instructions, and teacher check-ins (P-Ex. L-4). The Student responded extremely well to special education structures designed for students with attentional fluctuation, including easy access to his teachers, classroom routines and agendas, and a positive behavioral reinforcement system with built-in refocusing prompts (P-Ex. L-4). The curriculum focused on meeting the Student where he was academically, cognitively, social-emotionally, and developmentally, then creating an appropriate program and expectations to advance their skills (P-Ex. L-4). All instruction was provided in an experiential, multisensory, structured, explicit, systematic way, and worked to develop independence of action and thought (P-Ex. L-5). The Private School frequently communicated with the Student’s parents, including three parentteacher conferences and two progress reports per year (P-Ex. L-5). The Student’s advisor communicated via email and phone with his parents to keep them appraised of his progress, and there was an open line of communication with the teachers, specialists, therapists, and the Director (P-Ex. L-5). The Student’s 2022/23 Mid-Year Report outlined the supports, modifications, and accommodations that the Student received that aligned with the Student’s specific special education needs (P-Ex. J; L-5).

The Student also received Speech therapy in a group of two, as well as in the classroom (P-Ex. L-5). This push-in support during the writing class provided the Student with guidance in developing his attention, language processing ability, executive functioning, and self-advocacy skills (P-Ex. I; L-5). Supports included modeling, helping him organize ideas while brainstorming, transferring ideas to a Single Paragraph Outline, converting an outline into a cohesive paragraph, and revising and editing for word choice, sentence structure, and grammar conventions (P-Ex. L-5). Additionally, note-taking was targeted in class and during small group language sessions (P-Ex. L-5). The therapists provided support in a variety of configurations to meet his specific and unique needs such pushing into the classroom (P-Ex. L-5).

The Student’s receptive language abilities were directly related to his attention and language processing ability (P-Ex. L-5). When presented with more complex verbal information, the Student required the breakdown of information into smaller chunks, repetition, and 1:1 teacher support to boost his comprehension (P-Ex. L-5). During class discussions he benefited from clear instructions and teacher check-ins to ensure he understood the assignment (P-Ex. L-5). He was learning strategies to break down unfamiliar words so he can decode them accurately (P-Ex. L-5). He benefited from teacher modeling, daily coding practice, and using key words as verbal cues (P-Ex. L-5). When provided with multisensory learning opportunities and frequent repetition of new words, he was able to understand academic content and new vocabulary (P-Ex. L-5). With this support, the Student demonstrated his knowledge through thoughtful comments and questions in classroom activities and discussions and made progress (P-Ex. L-6).

The Student’s expressive language skills were characterized by difficulty with word retrieval, organization, and formulation (P-Ex. L-6). He was a consistent participant during small and whole group lessons (P-Ex. L-6). The Student was encouraged to increase semantic specificity, utilize more complex vocabulary and requires verbal support to expand his utterances and not use single words when answering questions (P-Ex. L-6). The Student was provided with guided questions and sentence starters to help him deliver his message in a complete sentence (P-Ex. L-6). Language sessions targeted generating synonyms and improving story telling, and he used a flow map and a graphic organizer to help him relay his narratives clearly and concisely (P-Ex. L-6). With supports, the Student made language progress over the course of the 2022/23 school year (P-Ex. I; L-6). To address Reading, the Student was placed with a group of students that have similar reading goals and areas of focus, and received daily visual and auditory tasks (P-Ex. L-6). He participated in engaging games and written activities which targeted morphemic awareness along with spelling rules (P-Ex. L-6). The Student was described as a quick learner but required regular practice and recall of new and previously learned strategies, teacher modeling, reminders to slow down, and a structured, scaffolded approach to new spelling rules in order to retain learned skills (P-Ex. L-6). He also benefited from decoding strategies, repeated readings, targeted fluency practice to aid his fluency, daily drills, games to facilitate retention, incentives, goal settings, and daily visual, auditory, and tactile activities (P-Ex. L-6). In terms of reading comprehension, the Student was encouraged to make inferences and share predictions and ideas about the text; benefited from having vocabulary reference sheets as a reminder to use new vocabulary, along with teacher modeling and regular reminders to annotate for theme and character traits; and previewing questions before working independently (P-Ex. L-6). The Student responded well to the interventions provided, he participated freely and openly in class discussions, shared knowledge of learned and read content; and he completed accurate and thorough homework assignments on time that reflected knowledge of learned content (P-Ex. L-7).

The Writing Program enabled the Student to build skills sequentially as they learned about sentence structure, grammar, and paragraph development (P-Ex. L-7). The Student used outlines and required step-by-step guidance when revising and editing and repeated practice (P-Ex. L-7). Regarding math, students began the school year building upon their understanding of operations with whole numbers and fractions (P-Ex. L-7). Word problems were consistently integrated into the lesson to support the Student’s understanding of how math is connected to the real world and to help annotate important information (P-Ex. L-7). Unit assessments, class participation, classwork, and homework assignments were used to assess progress and identify areas of further instruction (P-Ex. L-7). Previously learned skills and concepts were continuously reinforced before a new skill was introduced (P-Ex. L-7). When engaged, the Student was attentive to the lesson at hand and capable of solving complex mathematical problems (P-Ex. L-8). When solving longer multi-step order of operations problems, he would benefit from teacher prompting to slow down and focus, and was able to make progress over the course of the 2022/23 school year (P-Ex. L-8).

The Private School uses a social-emotional curriculum that emphasizes Recognizing, Understanding, Labeling, Expressing, and Regulating (P-Ex. L-8). The Student responded well to the program, was a strong advocate for himself, and demonstrated emotional intelligence for himself and others by using the tools taught (P-Ex. L-8). To support his attention and executive functioning needs, he was provided with 1:1 check-ins and monitoring to stay on task when working independently, fidgets and teacher reminders to bring his focus back to the lesson at hand (P-Ex. L-8). The Student also benefited from regular check-ins about homework, was held accountable for missed homework and benefited from good organization models (P-Ex. L-8).

The language curriculum was programmatic and infused throughout the program at the Private School (P-Ex. L-8). The Student required a small, structured learning environment and individualized support in order to stay on task and digest and apply the strategies being taught (P-Ex. L-8). With external distractions minimized, tools implemented, and his ability to apply the strategies taught, the Student was able to excel and make progress academically and socialemotionally (P-Ex. L-8). He worked at a slower pace and benefited from repetition, reviewing and revisiting new concepts many times (P-Ex. L-9). With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, based on all of the information provided above by the Director, 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). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District.

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 the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to funding for the 2022/23 school year. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2022/23 school year.

SO ORDERED

DATED: July 21, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

DISTRICT EXHIBITS

1. IEP 12/13/21 32 pages District

2. Prior Written Notice 1/7/22 4 pages District

3. School Location Letter 1/7/22 2 pages District

4. Neuropsychological Evaluation 5/11/21 7 pages District

PARENT EXHIBITS

A. Request for Impartial Hearing 2/4/2023 6 pages

B. Ten Day Notice 8/22/2022 4 pages

C. Educational Evaluation 5/11/2021 7 pages

D. Neuropsychological Evaluation 1/6/2022 6 pages

E. Enrollment Contract 1/27/2022 8 pages

F. Payment Affidavit 1/17/2023 1 page

G. Classroom Schedule 2022-2023 2 pages

H. Program Description 2022-2023 1 page

I. Mid-Year SL Progress Report 2022-2023 2 pages

J. Mid-Year Progress Report 2022-2023 26 pages

K. Attendance Record 2022-2023 1 page

L. Affidavit of Director of Private School 6/14/2023 9 pages

M. Affidavit of Parent 6/14/2023 5 pages

Footnotes

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

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

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