New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596202 - NYC: 245789

FINDINGS OF FACT & DECISION

Case No. City/State: 245789 / 596202

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: 8/14/23; 9/18/23; 10/18/23

Actual Record Close: November 16, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: November 30, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Private School Principal

For the Department of Education:

[REDACTED], ESQ., Attorney

[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 9, 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 recommend and implement an appropriate program. (P-Ex.A). The Parent has requested direct funding and tuition reimbursement for Parent’s unilateral placement of the Student at Private School for the 10-month 2022/23 school year. (P-Ex. A; T.pg.47). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on February 9, 2023. A Pre-hearing Conference was held on March 17, 2023 and Status Conferences thereafter on 4/19/23; 5/16/23; 6/14/23; and 7/13/23, at which time the Hearing was scheduled for August 14, 2023. (T.pg.23-24).

At the August 14th Hearing, the District did not present a case with either exhibits or witnesses. (T.pg.24). The Parent presented exhibits that were entered into evidence and witness testimony, with witnesses to be presented at the next date, scheduled for September 18, 2023. ^[3] (T.pg.24-26).

At the September 18th Hearing, Parent requested an adjournment due to witness availability, which was granted without objection to October 18, 2023. (T.pg.30-31).

At the October 18th Hearing, Parent introduced additional exhibits that were entered into evidence and the testimony of two witnesses. (T.pg.40-41).

Six joint/unopposed requests to extend the compliance date were granted. The record closed on November 16, 2023.

FINDINGS OF FACT

Parent testified Student has serious challenges including speech and language, cognitive, and developmental challenges, that severely impact his social and academic abilities. He is classified by the NYC DOE with a Speech and Language Impairment. One of Student’s biggest issues is that he often becomes very frustrated when he cannot communicate. This results in him giving up and shutting down. He refuses to complete his work if it is difficult. Upon his refusal, more challenging behaviors frequently develop. (P-Ex.J).

Parent testified Student requires a program with more individualized instruction. According to his teachers, there was serious concern about Student’s slow processing and his “marked difficulties” expressing himself, even with modeling. Student’s motor skills, speech-language development and overall cognitive ability all have delays. He only makes progress with assistance from his teacher and constant redirection. Parent testified he would not be able to function in an integrated co-teaching program. (P-Ex.J).

The IEP dated 7/13/2021 recommended an ICT program and the following related services:

• Counseling Services, Group of 3, English, 1x30 minutes per week;

• Speech-Language Therapy, Individual Service, English, 2x30 minutes per week; and

• Speech-Language Therapy, Group of 3, English, 1x30 minutes per week. (P-Ex.J; D).

Parent testified an ICT program is too large of a class for Student and will not allow the individualized instruction he needs. Parent testified no IEP meeting was reconvened for the 2022-23 school year. Parent testified she never received any School Placement Letter/Prior Written Notice regarding the 9/13/2021 IEP for the 2022-2023 school year. (P-Ex.J).

Student was enrolled in Private School for the 2022-23 school year. Parent testified she submitted a Ten-Day Notice to the Chair of the CSE on 8/18/2022, notifying them of the disagreement with the 9/13/2021 IEP and intent to enroll Student in Private School. (P-Ex.C; J). Parent testified she signed a contract on or about August 10, 2022 that obligates her to pay tuition for the 2022-23 school year. (P-Ex.E). Parent testified she is not able to afford the full tuition. (P-Ex.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 with exhibits or witnesses regarding the 2022/23 school year. Parent’s testimony and 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 during the 2022/23 school year. 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 Principal, who testified Private School meets the specialized educational and clinical needs of children with a range of disabilities and diagnoses including autism, speech and language delays, learning disabilities, and emotional disturbance. Private School offers small class sizes with a maximum of 12:1:1. Teachers have master’s degrees in special education and have trained in multiple learning models, such as Orton-Gillingham, Wilson Reading, Foundations and Preventing Academic Failure (“PAF”). Individual goals are developed for each child and instruction is provided as both small groups and one-to-one instruction depending on the skill being taught. Private School offers increased structure, and behavior modification programs for each student’s behavioral and academic needs. The school incorporates multi-sensory, hands-on material, visual aids, and activities during instruction to keep students engaged. Private School provides related services such as Occupational Therapy, Speech and Language Therapy, and Counseling services with ongoing collaboration between the related service providers and teachers. (P-Ex.I; L). Private School offers professional development training to its providers focused on special education teaching methods specific to students’ needs. Staff are also trained in areas within the educational/emotional support arena such as the principles of de-escalation and ABA. (P-Ex.I). Principal testified Private School provides a full day special education program for Student that is consistent with his special education needs. Student has many challenges and presents with behaviors of anxiety and frustration that sometimes impede his ability to learn and progress. In addition to his current special education small group placement, he receives counseling from the school social worker once a week. There have been many times when Student became upset due to stress and needed to talk with a teacher to calm down and ready himself for learning. The small group setting allows teachers to give Student the time and attention he needs. Student also presents with delays in his expressive language skills and articulation that affect his social interactions and academic progress. Student struggles to describe things and does not clearly express ideas or thoughts to peers and adults. Student needs assistance in clarifying his ideas so that they make sense to others. (P-Ex.I; T.pg. 55-56). Principal testified Student’s reading skills fall in the low average range, below grade level. On the Fountas and Pinnell assessments he scored on level D. His comprehension skills are below average. (P-Ex.I). Principal testified Student is currently in a special education small group classroom setting with two special education teachers to support him with his reading, writing, math and emotional delays. Student also receives Speech-Language Therapy 3 x 30 minutes per week to address his expressive and receptive language skills. Principal testified Student needs the continued support of counseling 1 x 30 minutes per week to address his social emotional delays and improve his emotional regulation. (P-Ex.I). Principal testified Student requires academic support such as small group learning, oneon-one support, explicit instruction, and direct feedback to address his weak reading, writing, comprehension and math skills. Student requires the continued support of small group special education placement and Speech-Language Therapy and Occupational Therapy to address his academic and social emotional needs. (P-Ex.I). Principal testified Student’s progress is measured through progress monitoring, consistent meetings with the teachers and support staff, observation of Student in the classroom, and daily session notes. Principal testified Student has shown progress and is benefiting from being placed in the program. Student has improved his ability to seek support from teachers and to regulate emotions, but requires continued support. (P-Ex.I; see also Ex.G; H; T.pg. 57-58).

Parent testified Private School offers more structure and behavior modification programs that are individualized to address Student’s unique behavioral and academic needs. The school incorporates multi-sensory, hands-on material, visual aids, and activities during instruction to keep students engaged. They also provide related services to Student including Counseling Services and Speech Language Therapy. (P-Ex.J).

Parent testified Student is doing well at Private School and is an appropriate placement. He is in a very small class size with two teachers and is benefiting academically from the individualized instruction, small class size, and extra support. He has made significant progress in regulating his emotions and being capable of asking for help when needed. However, if his current placement was taken away, there could be serious harm done to Student’s ability to make progress in school. (P-Ex.J). 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 Private School was an appropriate placement 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 provided Notice to the DOE on August 18, 2022. (P-Ex.C). Student became enrolled at Private School on September 1, 2022. (P-Ex.J; F). Thus, Parent’s notice was timely.

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 the Parent’s unilateral placement at Private School was appropriate. Parent was unable to afford the Private School tuition and Parent is entitled to tuition reimbursement and direct tuition funding for the 2022/23 school year.

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 Private School and reimburse Parent all

Private School tuition and fees for the Student’s unilateral placement at Private School for the 2022/23 school year.

SO ORDERED

DATED: November 30, 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. Letter Date Name of Document DPC 2/9/2023 6 pages

B. FOFD 1/13/2023 16 pages

C. TDN 8/18/2022 4 pages

D. IEP 7/13/2021 19 pages

E. Enrollment Contract 8/10/2022 7 pages

F. Attendance Record 6/21/2023 5 pages

G. Speech Therapy Progress Report 5/31/2023 3 pages

H. Counseling Services Progress Report 5/15/2023 3 pages

I. Affidavit of Principal 8/7/2023 5 pages

J. Affidavit of Parent 4 pages

K. Weekly Schedule N/A 1 page

L. Program Description N/A 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.