Impartial Hearing Decision

CASE NUMBER: 596279 NYC: 245849

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Date of Hearing: June 9, 2023 and June 28, 2023 Record Closed Date: June 28, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the June 9, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Father

REDACTED, Mother

Names and Titles of Persons who appeared at the June 28, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Father

REDACTED, Mother

I. Introduction and Procedural History

On January 9, 2023, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by her Parent (“Parent” or “Parents”). A pre-hearing conference was held on March 29, 2023, a status conference was held on May 5, 2023 and hearings were held on June 9, 2023 and June 28, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq., and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective June 28, 2023.

II. Background

Parent filed a due process complaint on February 12, 2023, alleging a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year and requesting reimbursement for tuition at the REDACTED School, as well as funding and reimbursement for independent education evaluations (“IEEs”). (Exh. A). The REDACTED submitted evidence but did not otherwise put on a case. (Exhibits 1-9). Parent provided direct testimony by affidavits, and the REDACTED was provided with the opportunity to crossexamine the witnesses. (Exh. Y and Exh. Z). The REDACTED declined to cross-examine the school’s witness, but questioned Parent based on his testimony. (Tr. 44, 45 et seq).

III. Discussion

FINDINGS OF FACT AND DECISION

An Individualized Education Program (“IEP”) was developed for Student on or about August 15, 2022. (Exh. 1). An assistive technology evaluation, a classroom observation, and educational evaluation, as well as an updated occupational therapy evaluation was conducted prior to the meeting. (Exh. 3, Exh. 4, Exh. 7 and Exh. 8). The REDACTED did not otherwise defend its recommendations.

A neuropsychological evaluation was conducted on August 28, 2022 and August 29, 2022. (Exh. D). The evaluator diagnosed Student with Autism Spectrum Disorder, requiring level one support and without intellectual or language impairment, as well as mood disorder, da developmental coordination disorder, and a specific learning disorder with impairment in written expression. (Exh. D, page 9). The evaluator recommended a change in classification to Autism, as well as a small, specialized school that provides a self-contained small classroom with a high teacher to student ratio with teachers trained in using a multi-sensory approach. (Exh. D, page 9). The evaluator further recommended occupational therapy, individual counseling, and significant accommodations. (Exh. D, pages 9-10). An Autism Assessment was conducted on December 29, 2020 and Student presented with behaviors indicative of an Autism Spectrum Disorder diagnosis, Level I. (Exh. F). Parent requested IEEs on February 21, 2022, including an occupational therapy evaluation, assistive technology evaluation and a neuropsychological evaluation. (Exh. V). Parent provided proof of payment for the occupational therapy and neuropsychological evaluation and requested an order for funding for the remaining assistive technology evaluation. (Exh. W). An independent occupational therapy evaluation was conducted on March 10, 2023. (Exh. G). The evaluator found Student had deficits in body coordination, visual motor integration, executive functioning, sensory processing, and adaptive skills, as well as delayed graphomotor skills. (Exh. G, pages 27-8). The evaluator recommended two individual occupational therapy sessions er week for forty-five minutes per session, a sensory diet and therapeutic listening, along with a highly therapeutic learning environment. (Exh. G, pages 29-30).

Student attended the REDACTED School for the 2022-2023 school year. The REDACTED School is a private school that “recruits high-potential, gifted and twiceexceptional students” and uses a multisensory approach. (Exh. L, page 1). The school uses a number of approaches for classroom management and behaviors, as well as researched based practices to help students develop self and social awareness, self-advocacy skills, effective communication skills and to foster cognitive and behavioral flexibility. (Exh. L, page 1). The middle school has up to thirty students broken down into three cohorts of seven to ten students that are grouped by age, grade and skill levels. (Exh. Z, page 2). Student received related services as needed, provided by licensed therapists and include counseling, specialized learning interventions and occupational therapy. (Exh. Z, page 3). Teams meet to address progress and to adjust goals and interventions, and the school communicates frequently with parents and outside providers. (Exh. L, page 2).

Student’s schedule included media production, pre-algebra, physics, French, English Language Arts, History, Learning Skills, electives, music, Creative Lab, and physical education. (Exh. N). As of March of 2023, Student only missed nine of 110 days of school. (Exh. M).

Student made progress during the 2022-2023 school year, both academically and in his related services. (Exh. O and Exh. P). Progress reports are issued twice per year. (Exh. Z, page 7).

Parents signed an enrollment agreement on May 31, 2022. (Exh. K). The contract provides for withdrawal upon acceptance of a REDACTED placement on or before October 15, 2022 less $10,000. (Exh. K, page 11 and Exh. Y, page 2). Parents paid in full and are seeking reimbursement. (Exh. J and Exh. T).

Parent filed a Ten-Day Notice on August 22, 2022. (Exh. B). There is nothing in the record to indicate a response. Parent filed a due process complaint on February 24, 2023. (Exh. A).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (See 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not submit evidence, provide testimony, or otherwise argue that the IEP provided FAPE for the 2022-2023 school year. (Tr. 28). Further, there is no evidence that a school location letter was ever provided to the family. (Tr. 54 and Exh. 1-8). Finally, the uncontroverted evidence is that Parents were seeking help for most of the school year prior to the IEP meeting held in August of 2022. (Tr. 54-5). Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

FUNDING FOR STUDENT’S UNILATERAL PLACEMENT

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (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, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

The REDACTED argues that the unilateral placement is entirely too restrictive for Student. (Tr. 35). However, the REDACTED provides no case law or witness testimony to support this claim. Parents’ uncontroverted testimony is that Student needs a small, structured environment to address his behaviors, including his extreme avoidance needs, his deficits in fine motor skills and sensory needs. (Exh. D and Exh. Q). Parent has shown, through testimony, and documentation, that the REDACTED School understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parents has met their burden of proof to show the appropriateness of the unilateral placement and are entitled to funding and/or reimbursement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B and Exh. Y, page 2). The uncontroverted evidence is that Parent was cooperative. (Exh. Y). The REDACTED alleges that since the contract was signed prior to the IEP meeting, the equities are not in Parents’ favor. (Tr. 53). However, there is a withdrawal clause in the enrollment contract, albeit with a significant $10,000 fee. (Exh. K). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition at the REDACTED School for the 2022-2023 school year.

INDEPENDENT EDUCATIONAL EVALUATIONS

Regarding IEE’s, the IDEA and it’s New York state counterpart provides, 8 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502: (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(i) If requested by the parent, the school districts hall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

Parent requests reimbursement for both a neuropsychological evaluation and an occupational therapy evaluation and funding for an assistive technology evaluation. (Tr. 41-3). Parent requested these evaluations, and nothing in the record indicates that the REDACTED either funded these evaluations or filed a due process complaint defending its own evaluations. (Exh. V). Further, the REDACTED did not object to this request. (Tr. 43). Therefore, I order the REDACTED to reimburse Parents for the neuropsychological evaluation and the occupational therapy evaluation within fifteen days of receipt of invoice, as Parent paid for these evaluations and are seeking reimbursement. (Exh. W). Further, I order the REDACTED to provide funding, within fifteen days of receipt of this Findings of Fact and Decision, for an independent assistive technology evaluation to be conducted by a licensed and/or certified provider of Parents’ choice, at a rate not to exceed reasonable market rate.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The REDACTED shall fund and/or reimburse Parent for tuition at the REDACTED School for the 2022-2023 school year.

3. The REDACTED shall fund, within fifteen days of receipt of this Findings of Fact and Decision, an independent assistive technology evaluation, to be conducted by a licensed and/ or certified evaluator of Parents’ choice, at a rate not to exceed reasonable market rate.

4. The REDACTED shall reimburse Parents for the cost of the independent neuropsychological evaluation and the independent occupational therapy evaluation, at a rate not to exceed reasonable market rate, within fifteen days of receipt of invoices and proof of payment.

Dated: July 8, 2023

AUDREY DANIEL, ESQ.

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 ADMITTED AT HEARING

REDACTED

ID # DATE DESCRIPTION # OF

PAGES

1 8/15/2022 Individualized Education Program 24

2 8/15/2022 Prior Written Notice 9 3 4/13/2022 Classroom Observation 3 4 4/8/2022 Educational Evaluation 4 5 4/6/2022 Teacher Report 6 6 Undated Report Card for 21-22 Marking Period 3 1 7 5/20/2022 Assistive Technology Evaluation 9 8 8/3/2022 Occupational Therapy Evaluation 19 9 5/20/2022 Occupational Therapy Observation 2

Parent

EX DATE NAME OF DOCUMENT Pgs.

A 02/24/2023 Complaint 246231 16

B 08/22/2022 Ten Day Notice of Intent 3

C 08/15/2022 Individualized Education Program (“IEP”) 23

D 08/29/2022 13

Neuropsychological Evaluation

E 12/20/2021 Neuropsychological Evaluation 13

F 12/29/2020 Autism Assessment Results 8

G 03/10/2023 Occupational Therapy (OT) Evaluation 32

H 04/06/2022 Teacher Report 6

I 03/24/2022 Social History Report 3

J 03/02/2023 Financial Affidavit 1

K 05/28/2022 REDACTED Enrollment Agreement 20

L 2022-2023 REDACTED Program Description 3

M 03/24/2023 Attendance Report 1

N 2022-2023 REDACTED Class Schedule 1

O Fall 2022 REDACTED Academic Progress Report 3

P Fall 2022 REDACTED Therapy Progress Report 4

Q 2021-2022 Writing Samples 3

R 2021-2022 Report Cards 2

S 08/02/2022 MIDDLE / HIGH SCHOOL OT EVALUATION 19

OF FUNCTION AND PARTICIPATION

T 22-23 Proofs of Tuition Payments 4

U 03/09/2022 IEP Request Follow Up Re: “504 Plan for 1 [HR]”

V 02/21/2023 IEE Request 1

W 09/2022 – Proof of Payment – Evaluations 2

12/2022

X Undated Rate Sheet for REDACTED 1

Y 06/07/2023 Affidavit of REDACTED 3

Z 06/07/2023 Affidavit of REDACTED 9

Impartial Hearing Officer

None.