Impartial Hearing Decision

CASE NUMBER: 245743

FINDINGS OF FACT AND DECISION

Case Number: 245743

Student’s Name1: REDACTED, (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED, (“Parent”)

Request Date/Date Complaint Filed: 2/3/23

Date(s) of Hearing: 3/15/23, 5/3/23, 6/6/23, 7/6/23, 8/16/23, 9/6/23, 9/14

Actual Record Closed Date: 11/28/23

Date of Decision: 12/3/23

Hearing Officer: IHO, Barbara J. Caravello, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Finding of Fact and Decision of Hearing Officer

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 15,2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 3, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 6, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 16, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 6, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 14, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

Finding of Fact and Decision of Hearing Officer

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC" or “Impartial Hearing Report”) filed on or about February 8, 2023.

The DPC alleges in relevant part that the Department of Education (“DOE” or “District”) denied the Student a free and appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act for the 2021-2022 school year.

Appearances took place on March 15, 2023, May 3, 2023, June 6, 2023, July 6, 2023, August 16, 2023, September 5, 2023, with a merits hearing concluding on September 14, 2023. Parents were represented by REDACTED and REDACTED. The DOE was represented by REDACTED, REDACTED and REDACTED.

Extensions were requested and granted, it having been determined that there would be no harm to the Student in doing so.

THE DOE’S CASE, PRESENTED

The DOE did not file its own due process complaint or position statement. The agency offered no evidence nor witnesses. THE PARENT’S CASE, PRESENTED:

The Parent asserts that the Student was denied a FAPE due to a number of acts or omissions on the part of the DOE which resulted in a substantially inadequate IEP recommendation. Finding of Fact and Decision of Hearing Officer

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES

ISSUE I:

Did the DOE provide the Student with a free and appropriate public education?

ISSUE II:

Is the current placement at the REDACTED appropriate for the Student?

ISSUE II

With which party does equity lie?

FINDINGS OF FACT

The Student is REDACTED years old and is alleged to be classified as a student with a Learning Disability. The Parents uncontroverted allegation is that the Student presents with significant deficits in language and communication, specifically receptive, expressive and pragmatic language, social skills, initiating conversation and expressing herself. The Student experiences frustration at times in educational settings which causes her to be aggressive with peers and engage in tantruming behaviors, (Tr. 71). Finding of Fact and Decision of Hearing Officer

The Student was evaluated for early intervention when she failed to meet milestones and was offered services for two to three days a week at age REDACTED and entered full-time enrollment at a program called REDACTED from age REDACTED through REDACTED, (Tr.

p. 108). In the Spring of 2021 the Committee on Special Education (CSE), offered the Student an 8:1:1 class setting, (Tr. 107-108, Ex. C). The Parents did not agree and notified the DOE, Id. The recommended school was closed for the summer and the Parents notified the school that they would visit in the fall, (Tr. 110. Ex. C). When they did, finally visit, the Parents notified the DOE that they would be unilaterally enrolling the Student in a non-public school by the name of the REDACTED, (Tr. 110, Ex. D). A substantive response was not received by the Parents.

CONCLUSIONS OF LAW

Denial of FAPE:

The Individuals with Disabilities 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).

The IDEA was legislated to, “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a FAPE is 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,” id. Each disabled student is entitled to an Finding of Fact and Decision of Hearing Officer educational program that is reasonably calculated to enable the student to receive educational benefits, Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 995-96 (2017).

“The initial procedural inquiry is no mere formality,” Id, 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 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 Committee on Special Education, (“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, supra.

The Student in this matter is significantly disabled, was largely unable to read and had significant behavior challenges that made her unavailable for learning. The smaller ratio in the public school did little to address the significant challenges that this student was contending with. In order for this Student to begin to meet her potential, a careful plan for behavior challenges and multisensory reading and math methods were necessary. These were not apparently available in the recommended setting. After visiting the recommended placement, the Parents did not see programs that would benefit their child but this opportunity to examine the placement was not even afforded to them in a timely manner. Finding of Fact and Decision of Hearing Officer

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 or 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 Forest Grove v. T.A.., 129 S.Ct. 2484 [2009]; Rowley, at 206-207).

A three-pronged test, generally known as the “Burlington-Carter” test, requires payment of tuition of a non-public school be made by the school district only if it is found that the FAPE was denied the student, the unilateral placement is appropriate and the equity of the case lies with the Parent, School Committee of Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 370 (1985); Florence County School District v. Carter, 520 U.S. 7, 15 (1993).

A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); M.P.G. v. N.Y.C. Dep’t. of Educ., 2010 WL 3398256, (S.D.N.Y. 8/27/10); NYS Educ. Law § 4404(1)(c).

The denial of FAPE has not been argued by the DOE. This issue is deemed conceded by the agency. Appropriateness of the current program: Finding of Fact and Decision of Hearing Officer

A private placement must be appropriate and if it is not, funding of tuition by the districts may be denied. The parents, however, need not show that the placement furnishes every special service necessary to maximize potential, Frank G. v. Board of Educ. of Hyde Park Cent Sch. Dist., 46 IDELR 33 (2D CIR. 2006), cert. denied, 109 LRP 29770, 552 U.S. 985 (2007); see also, C.B. v. Garden Grove Unified Sch. Dist., 56 IDELR 121 (9th Cir. 2011), cert. denied, 111 LRP 68912, 132 S.CT. 500 (2011).

An appropriate program begins with an IEP which: 1) accurately reflects student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child’s special education; 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, Walczak v. Florida Union Free Sch. Dt., 142 F. 3d 119 (2d Cir. 1998), Appeal No 00-005. The DOE did not provide an appropriate IEP and the program it offered was therefor, not appropriate. Further, even were the IEP convincingly argued to be appropriate, the recommended class did not offer the services recommended in the IEP.

I think worthy of consideration is the well tested principle that the private placement does not need to meet state education standards in order for the placement to be proper, Carter, supra. For instance, the private placement does not need to meet the IDEA’s LRE requirement.

The Parent’s witness REDACTED is the Director of Education at the REDACTED. The witness testifies that the subject Student experiences frustration when she is unable to perform a requested task. The program at REDACTED utilizes a multisensory, individualized approach in a one-to one, non-distracting environment, which includes review and repetition designed to Finding of Fact and Decision of Hearing Officer increase the Student’s confidence and ability, and the program has allowed the Student to experience a great deal of progress across all areas of learning, (Tr. 71-72).

The Parent noticed that in the school year in question, the Student began to increase her sight reading and “came a long way” in Math, (Tr. 113). The Orton Gillingham method was used and resulted in progress with decoding, sight words and reading comprehension, (Tr 123). The Student progressed in Math and the ABA methods used allowed the Student to participate in individual and small group learning, (Tr. 72-73,124). Physical aggression and tantruming were greatly decreased, (Tr. 71, 124-125). The Student was finally able to button her own buttons, a testament to her achievement in her occupational therapy skills, (Tr. 114). The occupational therapy also assisted the Student with sensory processing deficits, motor planning and visual perception, (Tr. 126). Physical Therapy helped the Student on core strengthening and flexibility of movement, (Tr. 127).

The head teacher in the Student’s class at REDACTED was a special education teacher, certified as such in the State of NY, (Tr. 71, 122) and had the benefit of two one-to one instructors throughout the day, Id. The academic instruction employed Applied Behavioral Analysis (“ABA”) techniques, (Tr. 74).

A district is also required to locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private schools located within the district, 34 CFR 300.131 (a). Once a district fails to develop an IEP that makes FAPE available, the proper private placement need only confer some educational benefit to the student, C.B. v. Special Sch. Dist. No. 1, 56 IDELR 187, (8th Cir. 2011); Warren G. v. Cumberland County Sch. Dist., 31 IDELR

27 (3d. Cir. 1999). Finding of Fact and Decision of Hearing Officer

There has been no placement offered this Student that provides the proper classroom makeup in terms of student-to-staff ratio, peer skill uniformity or methodologies that prepare and enable the Student to be available for learning.

It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring the student to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes “special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as 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. In this matter, the DOE did not provide a program that would meet the Student’s needs.

Equity:

Equity lies with the Parent’s request for relief.

The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of:

1. Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3). Finding of Fact and Decision of Hearing Officer

2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1).

3. Whether the parent’s actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3).

4. Whether the cost of the private placement is unreasonable, Carter, supra.

5. Whether there was a lack of parental cooperation with the school district, ^[2]

The Parent seeks tuition reimbursement and/or funding and it is not the Parent’s burden to show the reasonableness of the tuition. The District did not raise this objection.

The Parent testified that she is obligated to pay tuition at the Student’s current placement, the REDACTED, (Tr. 112-113, Ex. P), despite the outcome of the due process proceeding. The funding and/or reimbursement should not, in this situation be the burden of the family.

It has been held that where the District failed to provide entitled services, which are then engaged by the Parent, such services must be funded by the District at whatever rate is necessary, In re: Student with a Disability, NYS Educational Agency, 169545, (7/23/2018), finding that any standard set for “enhanced rates” irrelevant. For reasons stated herein, I find that the Parent was cooperative with the District and has met all requirements for a finding that equity demands the tuition and/or funding of the tuition be the responsibility of the DOE. Finding of Fact and Decision of Hearing Officer

ANALYSIS

The failure of the DOE to provide the Student with a FAPE for the 2022-2023 school year entitles the Parent to find a school program that is reasonably calculated to enable the student to receive educational benefits. The IEP was not sufficient to address the needs of the Student and there is no evidence to show that it was based on sufficient evaluative reports

The program that the Student currently attends is entirely appropriate for his needs and offers opportunity for his advancement. The Parent is entitled to funding and reimbursement for tuition for this program.

ORDER

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

1. The DOE failed to provide a free and appropriate public education to the Student for the 2021-2022 school year.

2. The program that the Student currently attends at the REDACTED is appropriate to the Student’s needs during the 2021-2022 school year.

3. Equitable considerations support the Parent’s claim for reimbursement and/or funding of tuition for the REDACTED.

4. The DOE must fund and/or reimburse the cost of tuition and associated fees due to the REDACTED for the entirety of the 2021-2022 school year, minus any amounts which may already be paid through pendency.

5. All services are to be provided over a twelve-month school year period.

6. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders. Finding of Fact and Decision of Hearing Officer

SO ORDERED:

Dated: December 3, 2023

Barbara J. Caravello, Impartial Hearing Officer

Finding of Fact and Decision of Hearing Officer

APPEAL RIGHTS

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. Finding of Fact and Decision of Hearing Officer

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

P-A. Exhibit Document Date # of Pages Amended Impartial Hearing Request 9/21/22 4 pages

P-B. Ten Day Notice 8/23/22 3 pages

P-C. Psychiatric Evaluation 4/2/22 6 pages

P-D. Letter of Recommendation 4/27/22 1 page

P-E. Letter of Recommendation 5/1/22 2 pages

P-F. Letter of Recommendation UNDATED 1 page

P-G. REDACTED Tuition Agreement 8/26/22 2 pages

P-H. REDACTED Program Description UNDATED 1 page

P-I. REDACTED Class Schedule 22-23 SY 2 pages

P-J. REDACTED Tuition Affidavit 1/18/23 2 pages

P-K. REDACTED Tuition Affidavit 1/18/23 1 page

Footnotes

[2] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).