New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596624 - NYC: 246099

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 246099

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 17, 2023

Hearing Dates: July 18, 2023

Actual Record Close Date: July 18, 2023

Decision Date: August 1, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 18, 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 17, 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 2022/23 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School for the 2022/23 school year as well as reimbursement for transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on February 21, 2023. I was assigned to the previously filed DPC (case no. 246099) regarding the 2019/20, 2020/21 and 2021/22 school years. The matters were not consolidated. A prehearing conference was held on June ^[1], 2023, to discuss the issues in the case. The matter had been referred for settlement based on the ten-day notice, but the Parent had not received any communication since December 2022 (See, Transcripts).^[2] Status conferences were then held but there was no movement on the comptroller memo or settlement, so a hearing was scheduled.

The hearing was held on July 18, 2023, and concluded in one day. The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavit. The District did not cross examine the affidavit witnesses. The record closed on July 18, 2023. There were three extensions of the compliance timelines to allow for the settlement process and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted]-year-old student that recently completed the third grade for the 2022/23 school year (P-Ex. N-1). The Student is classified as a student with a Speech or Language Impairment and diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) combined presentation, and a Specific Learning Disorder with impairments in reading and written expression (P-Ex. A; D). The Student received special education services in preschool and was mandated to receive a program of occupational therapy and speech-language therapy (P-Ex. N-1). From the end of her kindergarten year through second grade, the Student was mandated to receive special education services through an IESP at an independent school (P-Ex. N-1). There, she attended a small classroom with supports built into the curriculum for attention and social-emotional health (P-Ex. N-1).

During the 2020/21 school year, the Student received SETSS 3x/week; speech-language therapy (1x30, 1:1; 1x30, group); and occupational therapy (2x30, 1:1) (P-Ex. N-1). The Student struggled that school year and at the April 19, 2021, IESP meeting her SETSS services were increased to 10x/week while keeping her speech-language therapy and occupational therapy mandates the same (P-Ex. N-2). Unfortunately, the Student continued to struggle significantly during the 2021/22 school year and fell significantly behind her peers (P-Ex. N-2).

Based on the Student’s continued struggles and the Parent’s disagreement with the District’s evaluation of the Student, the Parent paid for a private comprehensive neuropsychological evaluation during the summer of 2021 (P-Ex. D; N-2). A copy of the report was provided to the Student’s SETSS provider (P-Ex. N-2). The Parent re-sent a copy of the evaluation to the District in March 2022, and requested an IEP meeting to consider the evaluator’s findings and recommendations (P-Ex. L; N-2). The District did not respond to the Parent’s request an IEP meeting and did not offer the Student a public school placement for the 2022/23 school year (P-Ex. N-2). The Parent then sent the District a letter on August 23, 2022, explaining that the District had failed to create an IEP or offer a public school placement and that as a result they intended to enroll the Student at the Private School for the 2022/23 school year (P-Ex. B; N-2). The letter also requested that the District provide transportation to and from the home and the Private School (P-Ex. N-2). The District did not respond substantively to the August 23rd letter, other than referring the matter for settlement (P-Ex. N-3).

The Student began attending the Private School for the 10-month portion of the 2022/23 school year, which offered her a small, structured, full-time special education setting designed for students with language-based learning disabilities (P-Ex. N-3). Although the Parent signed a contract, and are responsible for the tuition, due to their income and other financial obligations, they cannot afford to pay the full tuition up front and seek reimbursement (P-Ex. F; G; N-3).

According to the Parent, the Student has made excellent progress in her decoding and reading comprehension skills; noticeable improvement in her writing; and she seems more confident with math (P-Ex. N-3). The Student is happy and looks forward to attending school each day (P-Ex. N-3).

The District did eventually hold an IEP meeting on January 25, 2023, and recommended an integrated co-teaching (“ICT”) classroom with occupational therapy (2x30, group) and speech-language therapy (2x30, group), and special transportation from the closest safe curb location to school (P-Ex. N-3). The Parent disagreed with the recommendation because it was inconsistent with the neuropsychologist’s recommendation and was far less supportive than what the Student was receiving at the Private School, or even at the independent school she attended prior to the 2022/23 school year (P-Ex. N-4). Regardless, after the January 25, 2023 IEP meeting, the Student was not offered a public school placement and remained at the Private School (P-Ex. N-4). The District did not provide transportation as requested and the Parent had to pay for private transportation to and from the home and the Private School during the 2022/23 school year (P-Ex. K; N-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 did not present a case or defend the allegations regarding the 2022/23 school year. Based on the undisputed facts alleged by the Parent in their affidavit testimony, I find that the District did not provide the Student with FAPE for the 2022/23 school years.

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 Head of the Lower School at the Private School testified by affidavit regarding the Private School and the Student (P-Ex. M). The Private School serves grades one through eight, all in one building with the lower school serving grades 1-5 (they are not graded but grouped over a two-year span) (P-Ex. M-2). Classes typically consist of 13 to 14 students with two teachers and one teacher resident (P-Ex. M-2). Students are broken into smaller groups of two to six students for reading and writing and typically spend 80 minutes per day (70 minutes on Friday) in reading in small homogeneous groups (P-Ex. M-2). Students spend 45 minutes, four days per week, in writing, as well (P-Ex. M-2).

The Private School serves students who are of average to above-average intelligence but have language-based learning disabilities, which means they have some combination of dyslexia and/or language impairment (P-Ex. M-2). The educational model of the Private School includes research-based multisensory instructional programs, a structured and language-intensive learning environment, small class size, and an individualized, flexible approach to meet the needs of each student (P-Ex. M-2). The Private School also provides small-group instruction using a variety of curricula, including Preventing Academic Failure (an Orton-Gillingham reading program) and The Writing Revolution writing program (P-Ex. M-2). The Private School has on-staff Speech & Language Pathologists, an Occupational Therapist, and Psychologists; and speech-language, occupational therapy, and counseling services are built into the curriculum (P-Ex. M-2). The service providers co-teach and consult with teachers to ensure that services are integrated into the students’ school day (P-Ex. M-2). They also provide students with additional small-group support within the classroom (P-Ex. M-2).

The Private School employs eight administrators and approximately 100 faculty members (P-Ex. M-2). In the lower school, students are broken up into approximately 28 homogenous reading groups, some of which are taught by speech and language pathologists (P-Ex. M-2-3). Each homeroom has two lead teachers and a teacher resident, who is a teacher in training and serves as an assistant (P-Ex. M-3). The Private School provides extensive professional development opportunities for faculty and staff (P-Ex. M-3). They have a comprehensive training program for new hires before they start and throughout their first year; and all faculty undergo a training for a week during the summer (P-Ex. M-3). Teachers are observed frequently by a supervisor and coached by academic coaches or supervisors across all the subjects that they teach (P-Ex. M-3). Teachers can also do professional development outside of school (P-Ex. M-3). In a given week, each teacher typically participates in up to five hours of professional development and consultation across modalities (P-Ex. M-3). All academic subjects, as well as Art, Music, and Physical Education, are supported by a psychologist (P-Ex. M-3). The Private School also makes sure to coordinate with any outside supports a child receives (P-Ex. M-3). Teachers typically have a Master’s degree in education or special education, depending on their subject area and most teachers are NY State certified in Special Education (P-Ex. M-3).

The Student’s homeroom during the 2022/23 school year consisted of 10 students, two lead teachers, and an assistant teacher (P-Ex. M-3). The students and teachers were together for morning meeting, where the group worked on social-emotional skills and work habits (P-Ex. M-3). They later broke up into small, homogenous reading and math groups, and were together for most other subjects (P-Ex. M-4). According to the Head of School, support for language is the backbone of the entire program at the Private School (P-Ex. M-4). During the 2022/23 school year, students spent two or more hours a day in multisensory instruction in reading and writing (P-Ex. M-4). Throughout the day, they used the same multisensory language-based instruction across all subjects (P-Ex. M-4). There was extensive coordination between instructors and service providers to ensure that our students felt supported no matter what they were engaged in at that time (P-Ex. M-4). Features of the academic model include the use of research-based, multisensory instructional programs; a structured, language-intensive learning environment; small class size; an individualized, flexible approach to meet the needs of each student; reading and math taught in small homogenous groups to tailor instruction to individual learning styles and ability levels; instruction that builds on students’ strengths and interests; social-emotional learning that gives students the tools to build strong friendships, understand their learning styles, and self-advocate; a focus on community, confidence, and growth; use of technology to support and enrich learning; speech-language and occupational therapists who offer services during the school day and collaborate closely with classroom teachers; activities and enrichment that enhance our students’ learning experiences; and a comprehensive academic curriculum (P-Ex. M-4). Reading instruction is based on the Orton-Gillingham methodology and if students struggle with decoding, they use the structured Preventing Academic Failure (PAF) program (P-Ex. M-4). Students work not only on learning the phonetic sounds of letters but also handwriting and spelling, as they build towards more and more complex decoding (P-Ex. M-4). Students also learn comprehension strategies and receive speech-language-informed prompts and graphic organizers to allow them to extract meaning and write about what they read (P-Ex. M-5).

Overall, the goal is to remediate a student’s learning and language difficulties and integrate them back into the mainstream (P-Ex. M-5). Instruction is individualized to each student’s needs (P-Ex. M-5). While students typically do not require 1:1 instruction for every aspect of their curriculum, they do provide 1:1 instruction as part of the small group model (P-Ex. M-5). The Private School’s curriculum also incorporates a social and emotional component and follow the New York State’s guidelines and national best practices for Social Emotional Learning, tailored for students with language-based difficulties (P-Ex. M-5). They begin every morning with social-emotional instruction and integrate such instruction into all subjects throughout the day (P-Ex. M-5).

Based on review of the Student’s records, interviews, and observations generally, the Private School believed that she was a good fit at the Private School for the 2022/23 school year (P-Ex. M-5-6). The Student was described as a bright young girl who struggles in various areas including attention, executive functioning, phonemic awareness and rapid naming in reading, writing, and areas of math (P-Ex. M-6). When she first began at the Private School in September 2022, she was well behind grade level academically in reading, writing, and math (P-Ex. M-6). Although she was generally a happy child, she would become frustrated with tasks she perceived as challenging (P-Ex. M-6). The Student benefitted from a variety of specific supports specifically, frequent 1:1 instruction, teacher prompting to address her issues with attention and executive functioning, calming breaks to address her issues with frustration, modified instructional pace, directions broken down and repeated, and frequent repetition and review of new skills (P-Ex. M-6). The Student also received small group (5 students to one teacher and one assistant) reading instruction for 80 minutes every morning to build decoding and comprehension skills (P-Ex. M-6). The Student benefitted from teaching techniques and modifications such as a slowed pace of instruction, repeated readings, direct feedback, and explicit practice in a small group (P-Ex. M-6). The Student demonstrated excellent progress in reading during the 2022/23 school year (P-Ex. M-7). She improved her automaticity to read words and phrases with short vowels; improved her decoding skills throughout the year and her ability to apply those skills while reading longer passages with short vowels; showed an improved ability to self-monitor her decoding throughout the year; use her comprehension skills to fix decoding errors; improved her comprehension skills and demonstrated an ability to identify story components and answer explicit questions (P-Ex. M-7). During the 2022/23 school year, the Student had writing class in a group of 10 students and two teachers (P-Ex. M-7). The instructors used a systematic and structured program for teaching expository writing (P-Ex. M-7). Assignments were typically based on subjects being studied in other academic classes (P-Ex. M-7). Strategies such as frequent teacher prompting, repetition and review, and slowing the pace of instruction were used frequently (P-Ex. M-7). With respect to the mechanics of writing, the Student benefitted from supports such as grips and highlighted writing lines to improve her handwriting skills; and spelling strategies such as sounding out words so that all sounds are represented (P-Ex. M-7). The Student demonstrated excellent progress in writing during the 2022/23 school year (P-Ex. M-7). She was able to tell the difference between a fragment and complete sentence; demonstrated increased independence in writing different types of sentences and using conjunctions to increase the complexity of her sentences; and with teacher prompting, she grew in her ability to edit her work for punctuation and capitalization (P-Ex. M-7). By the end of the year, the Student was beginning to develop her paragraph writing skills and was able to orally produce a paragraph with the support of an outline and teacher prompting (P-Ex. M-7). The Student also made excellent growth in spelling and handwriting throughout the school year (P-Ex. M-8).

The Student had math class daily in a group of 6 students and two teachers (P-Ex. M-8). The curriculum was based on the Jump Math curriculum, and Orton-Gillingham instructional strategies were integrated into instruction in the math class (P-Ex. M-8). Instruction focused on improving her number sense, numeracy, and place value skills (P-Ex. M-8). Teachers frequently employed strategies such as the use of manipulatives, number lines, and other visual representations of problems, which she benefitted from (P-Ex. M-8). The Student also benefitted from the use of large graph paper and prompts when writing numbers in order to keep her work organized and legible (P-Ex. M-8). Frequent repetition and review were used for skills such as addition and subtraction (P-Ex. M-8). The Student made excellent progress in math during the school year (P-Ex. M-8). She became more fluent with her addition and subtraction skills, and was able to move on to multiplication and division; she improved with her problem-solving skills and in her ability to explain her problem solving process with the support of things like sentence starters, additional wait time, and scaffolding (P-Ex. M-8). The Student had a social studies class in a group of 10 students and two teachers (P-Ex. M-8). Reading and writing methodologies were integrated into social studies instruction to allow for additional time working on these fundamental academic skills with frequent repetition and review (P-Ex. M-8). Science was in a group of 10 students and two teachers (P-Ex. M-9). Science class involved frequent hands-on activities to increase student interest and understanding (P-Ex. M-9).

The Student had language class twice weekly in a small group of 4 students and one teacher (P-Ex. M-9). The class was taught by a licensed speech-language pathologist and focused on improving the Student’s critical thinking skills, vocabulary, lexical knowledge; and addressed social pragmatic skills such as perspective taking (P-Ex. M-9). Strategies such as direct instruction and frequent repetition and review were implemented during the course of the year, the Student grew in her ability to use new vocabulary words and in her ability to identify different perspectives (P-Ex. M-9).

The Student had occupational therapy once per week in a small group to address skills related to fine motor coordination and handwriting, gross motor coordination, executive functioning, and sensory processing (P-Ex. M-9). The OT coordinated with classroom teachers to provide in-class supports to assist with the Student’s attention, self-regulation, and handwriting needs (P-Ex. M-9). Students were also encouraged to take sensory breaks during class to aid their focus and attention (P-Ex. M-9). The Student made nice progress with her occupational therapy skills during the school year and improved in the completion of executive functioning activities addressing her organizational skills, planning skills, and working memory (P-Ex. M-9).

The Student had a social skills/social emotional learning class twice weekly with three teachers to address and develop skills for emotional regulation and social interaction (P-Ex. M-10). Students worked on describing their emotions, perspective taking, coping skills, problem solving for difficult social situations, and mindfulness skills such as deep breathing (P-Ex. M-10). 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, the Student made progress. As stated in the affidavit testimony of the Head of School above, the Student made meaningful social, emotional, and academic progress during the 2022/23 school year (P-Ex. I; J; M). The Student made many positive friendships with her peers and grew in her ability to manage her emotions and use coping skills when she was frustrated (P-Ex. M). The Student also progressed academically and benefitted from the structured, multi-sensory instruction she received in reading, writing, and math (P-Ex. M-10). Based on all of the above, I find that the Private School is 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 the 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 reimbursement and funding for the 2022/23 school year, as well as reimbursement for transportation costs. 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; 2) ORDER THAT, the District shall reimburse the Parent for any and all transportation costs paid for by the Parent during the 2022/23 school year.

SO ORDERED

DATED: August 1, 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

None

PARENT EXHIBITS

A. Due process complaint 2/17/23 9 pages

B. Ten-day notice 8/23/22 3 pages

C. Ten-day notice with receipt 8/23/22 2 pages

D. Neuropsychological evaluation 6/14/21 27 pages

E. School description Undated 4 pages

F. Enrollment contract 9/21/22 4 pages

G. Enrollment contract addendum 5/13/22 1 page

H. Class schedule Undated 1 page

I. Progress report January 2023 24 pages

J. Progress report June 2023 24 pages

K. Transportation invoices Sept 22-June 23 13 pages

L. Parent email requesting IEP 3/1/22 2 pages

M. Affidavit of Head of School 7/11/23 10 pages

N. Affidavit of Parent 7/11/23 4 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.