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FINDINGS OF FACT AND DECISION
596697
[Redacted]
[Redacted]
Parents
Martin J. Kehoe III, Esq.
March 18, 2024
Case Number:
Student’s Name:
District:
Hearing Requested By:
Hearing Officer:
Actual Record Close Date:
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as “District,” the parent(s) as “Parent(s)” and the student will be referred to as “Student.”
The Parents seek tuition reimbursement for the 2022-2023 school year (“SY”). A board of education may be required to pay for educational services obtained for a student by his or her parent, if (i) the services offered by the board of education were inadequate or inappropriate, (ii) the services selected by the parent were appropriate, and (iii) equitable considerations support the parents' claim. Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692 (S.D.N.Y.) (citing Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 (1985)).[1] Thus, I will analyze the Parents’ claim using this three-prong approach.
The Parents filed the complaint notice on February 22, 2023. (Ex. 1). A hearing was held on July 12, 2023 and August 31, 2023. The Parents introduced exhibits A-B into the record and called three (3) witnesses: the student support coordinator at the Private School (“Support Coordinator”) at the Private School, the Student’s mother (“the Mother”) and the independent psychologist (“the Psychologist”). The District introduced exhibits 1-24 into the record and called two (2) witnesses: the director of pupil personnel services at the District’s Recommended Placement (“the Director”), and the principal at the District’s Recommended Placement (“the Principal”). The Impartial Hearing Officer assigned to this case recused himself after the matter was fully litigated. I was assigned to review the record and write this decision.
a. Parents’ Position
The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 SY on the grounds of various procedural and substantive violations. (Ex. 1.2-3). The gravamen of the Parents’ claim is that the District’s recommended placement for the Student is not the least restrictive environment (“LRE”). As a remedy, the Parents seek reimbursement for the tuition costs associated with their unilateral placement of the Student at the Private School. (Ex. 1-4).
The District presented a Prong I case, asserting that the Student was progressing at the District’s Recommended Placement. (T. 7). Further, the District maintains that the Parents did not meet their burden of proof under Prong II, in that they did not demonstrate that the Private School was an appropriate placement for the Student. (T. 8). The District notes that the Private School is a “parochial school” and not a special education school. (T. 7-8). Additionally, the District maintains that the equities are in its favor due to lack of a ten-day notice. (T. 9).
On August 29, 2022, a Committee on Special Education (“CSE”) meeting was held to develop an Individualized Education Program (“IEP”) for the Student.[2] (Ex. 14). Following the meeting, on September 12, 2022, the District sent the Parents a Prior Written Notice (“PWN”) to inform them of the CSE’s recommended program for the Student. (Ex. 17).
While the Parents did not formally respond with a ten-day notice, it became apparent that they rejected the recommendation and unilaterally placed the Student at the Private School for the 2022-2023 SY. (See discussion in Prong III below). Nevertheless, the CSE convened on November 7, 2022 to develop an Individualized Education Services Program (IESP) for the Student. (Ex. 19). On February 22, 2023, the Parents filed the complaint notice. (Ex. 1).
The Student was REDACTED years old at the start of the 2022-2023 SY. The Student carried a disability classification of Emotional Disability.[3] (Ex. 14-1). In the Student’s report card from June of 2022, he is described as a student who “is a pleasure to have in class.” (Ex. 12-1). In 2019, the District’s Recommended Placement conducted an educational evaluation of the Student in which the evaluator noted that the Student has “. . . a history of hyperactivity, aggression, impulsivity, and attention problems.” (Ex. 22-1). Academically, the evaluator noted that the Student “needs adult prompting to attend to task and extended time to complete tests.” (Ex. 22-6). It is with this background that I now turn to the legal considerations of the IDEA.
e. Legal Overview
A state receiving federal funds under the Individuals with Disabilities Education Act (“IDEA”) must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (“IEP”) for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012).
In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSE”). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007).
If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers (“IHO”). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer (“SRO”), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). See, R.E., 694 F.3d 167 (2d Cir. 2012).
a. Prong I: The District failed to meet its burden in demonstrating that it provided the Student a FAPE for the 2022-2023 SY.
i. Legal Standard
1. Procedural Standard
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
2. Substantive Standard
IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).
ii. Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following issues:
- The District’s recommendation that the Student continue to attend the 6:1:1 program at [the District’s Recommended Placement] serving only students with disabilities is wholly inappropriate;
- The District failed to address the Student’s academic, social, and management needs in an environment that provided him with sufficient access to, and interaction with, nondisabled peers;
- The District failed to provide the Student with the meaningful educational benefit to which he is entitled; and
- The District’s recommended program for the 2022-2023 SY failed to offer the Student with a FAPE in the least restrictive environment. (Ex. 1-3).
This is the context in which I weigh the District’s recommendations, mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 58 (2005).
I focus my analysis on the legal standard of the Least Restrictive Environment (“LRE”). “[D]etermining whether a student has been placed in the ‘least restrictive environment’ requires a flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate. . .” P. v. Newington Bd., 546 F.3d 111, 113 (2d Cir. 2008). With this backdrop, I have examined the Student’s IEP and evaluations, as well as the testimony from the District’s witnesses.
In the operative IEP,[4] dated August 29, 2022, the Student is described as follows:
[The Student] generally displays appropriate interactions with peers. He presents as a friendly and polite student. He is a social and engaging in the group setting, however [the Student] does seem to prefer to work on tasks independently. [The Student] has the ability to ignore the distracting behavior of others. He is improving his ability to accept peers and their skills and is able to refrain from comparing others to himself.” (Ex. 14-5).
The Student’s annual goals included a writing goal and a social/emotional/behavioral goal.[5] (Ex. 14-7). In developing the Student’s IEP, the CSE relied on an education evaluation (dated December 3, 2019), and a psychological evaluation (dated December 5, 2019). (Ex.s 22 & 23). While these documents may have offered insight into the Student’s levels of performance at the time, they fail to capture the Student’s subsequent improvements.
Upon reviewing the Student’s progress reports dating back to the 2020-2021 SY (Ex.s 5 & 11), his report cards (Ex.s 6 & 12), and anecdotal information, I find that the earlier evaluations (Ex.s 22 & 23) no longer reflect the Student as he presented during the summer of 2022. Below I offer excerpts from the testimony which attempt to demonstrate the District’s position that the 6:1:1 recommendation remained appropriate. However, on balance I am not persuaded.
The Director of Pupil Personnel Services from the District’s Recommended Placement - Testimony The Director testified that the District’s Recommended Placement “works with students who are -- who have classifications of emotionally disturbed. They work with students with self-regulation needs, with behavioral needs, and emotional needs. It's a therapeutic setting.” (T. 18). When asked why the District’s Recommended Placement was recommended for the Student, the Director responded:
A 6:1+1 placement is a placement that helps support a student with behavioral needs. It's a smaller class setting. It's more structured. It has clear expectations. The teacher -- the special education teacher provides specially designed instruction in a smaller setting. (T. 20).
While these remarks are helpful in the generic sense that the witness was familiar with the placement, they do not offer detail concerning the Student’s current present levels of educational performance (“PLEPS”). 8 NYCRR Section 200.1 (ww)(3). Through the Director’s testimony, it becomes apparent that the District essentially provided the same program as the year before. (T. 26). The only difference was that specialized behavioral services were decreased from monthly to quarterly. (T. 26-27)
The Parents challenged the District’s basis for its recommendations, specifically with respect to the Student’s academic, social, and management needs. (Ex. 1-3). Additionally, the District failed to address the contention that the Student had progressed. The Student’s progress reports indicate that the Student was progressing gradually in social/emotional/behavioral goals throughout the 2021-2022 SY. (Ex. 11). For instance, the report notes that the Student presents as “friendly and polite.” (T. 88). The Student’s physical education teacher also indicated that the Student made significant improvements in his overall behavior. Id. The Director acknowledged these improvements, agreeing that the Student has made significant improvements in his overall behavior. Id.
The Director also conceded that to the fact that there were fewer emotional goals from the year prior which suggests that the Student made progress in those areas. Id. Additionally, the Parents’ counsel questioned if the Student would have any access to “typically developing peers” at the District’s Recommended Placement to which the Director responded that “[a]t [the District’s Recommended Placement], there are none.” (T.91). Thus, the Director failed to demonstrate a clear rationale with respect to the appropriateness of the District’s Recommended Placement.
The Principal from the District’s Recommended Placement - Testimony
When asked to describe the Student’s history in terms of his triggers and his ability to regulate himself the Principal testified:
You know when [the Student] initially started, I -- I would say it was probably maybe once or twice, like, weekly where he was becoming escalated and, like, needing a support counselor to respond. And some of that is, like, a new environment and all of that. But there was – I also think, like, a lack of trust on his part, too, until he, like, got to know us. He did become -- I think as he matured, he became able to, like, more critically evaluate a situation where, like, you know, what is an appropriate response to what's going on, where, like, things that would have previously really frustrated him didn't -- he seemed to be able to bounce back from much more quickly and without so much support. (T. 122-123)
I note that the Parents did express concern about seeking a new school, but the Principal seemingly ignored their concerns and opted for the status quo, continuing the District’s Recommended Placement, even though she did not have data available to support her position. (T. 131-135). The District failed to produce updated behavioral information, rating scales, an FBA or current data to support its position. Given the specialized nature of the District’s Recommended Placement, coupled with the Parental concerns, I would expect the record to contain an abundance of documentation. Rather the testimony reveals a casual approach taken at the District’s Recommended Placement:
Q. Okay. Okay. Lastly, I know that it happens and each situation is different, but could you give some description of what the Student looks like when he's not emotionally regulated?
A. You know, I got to a point where I could, like, tell by the look on his face . . .
I point this out not to diminish the witness’s professionalism or integrity, or the District’s Recommended Placement as a whole, but only to suggest that the District’s presentation does not meet the threshold required to meet its burden. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386 (2017) (Holding that a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .”). Here, the District was unable to do so.
The Parents raised concerns regarding the homework policy of the District’s Recommended Placement and whether it offered specific classes or AP classes. The Principal stated that the District’s Recommended Placement does not have a strict homework policy and it is up to the discretion of the teachers. (T. 146). Further, the Principal indicated that certain classes are only available when they have enough students to fill the seats (i.e., geometry). (T. 145). The Principal testified that the District’s Recommended Placement does not have AP classes; however, the curriculum offers all needed classes to fulfill graduation. (T. 146).
Contrast this with the Mother’s testimony in which she voiced her concerns. After the Student finished the 9th grade, the Mother’s opinion of the District’s Recommended Placement changed:
[W]hat kind of came to light was the -- when he failed the Regents, earth science Regents exam, when he had been doing so well all along. It wasn't the key thing that said, oh, we got to get him out of here. It was my husband and I never stopped questioning is he where he should be, is he getting what he needs. And he was doing so well for three years. Part of our hesitation was just pure fear of going back to a not good situation, but he was doing so well and maturing so much outside of school and behaviors that used to be outside of school were like no longer present. And the behaviors that were in school were really no longer present to the degree that we were getting phone calls. There weren't any suspensions, expulsions. It just was good. And we thought, you know, [the District Recommended Placement] has done its job, but it can't do any more than it was doing. And [the Student] just had so much more potential, both academically and socially, to grow and we just realized it wasn't going to happen there. (T.328-329).
The Mother’s concerns were not addressed. The Student aspires to go to college, become a physical therapist, and to live independently. (Ex. 14.6-7). This requires the Student to be able to navigate in a social world with emotional maturity that the District’s Recommended Placement is not designed to achieve.
The Independent Psychologist – Testimony
The Psychologist provided some insight with respect to the Student’s performance while he was still at the District’s Recommended Placement:
I think that [the Student] did well at [the District’s Recommended Placement]. I think he had some issues with transitioning there when he first started there. But I think that he did -- once he kind of transitioned, he was able to be very successful. It is my recollection that he was kind of a star student, did very well on his behavior charts and was doing well academically. (T. 294).
The Psychologist based this opinion on the fact that his grades were high and that his behavior charts were “pretty consistently” getting scores of 45 and above out of 50. (T. 295). The Psychologist opined that she was in favor of moving the Student to a different school, after the Parents raised concerns and desires to unilaterally place the Student:
I supported their decision and their thoughts about moving [the Student] to a different school because [the District’s Recommended School] -- he seemed to be not reaching his academic potential because of the way [the District’s Recommended School’s] classes were structured.
[The District’s Recommended School] is a private school and their primary focus is on behavior. And although they teach Regents courses, they weren't teaching those courses to the rigor that [the Student] would have attending a different school, a nonspecialized behavioral school. (T. 297).
It is the Psychologist’s opinion that the Student needed more exposure to typically developing peers, kids without disorders, like the kids the Student plays soccer with. (T. 298). However, when questioned whether the Student should have returned to public school, the Psychologist believed that it would be too great of a leap going from a very structured environment to one with little to no structure as it could be detrimental to his progress. (T. 298-299).
Thus, upon reviewing the testimony of the District’s witnesses, coupled with that of the Psychologist, I find that the District did not meet its burden in demonstrating that it provided the Student with a FAPE in the LRE during the 2022-2023 SY.
b. Prong II: The Parents met their burden in showing the Private School to be an appropriate placement for the Student for the 2022-2023 SY.
i. Legal Standard
Having determined that the District failed to offer the student a FAPE for the 2022-2023 SY, the next inquiry focuses on whether the Parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 (S.D.N.Y. 2010). The Second Circuit has clearly stated:
. . . [P]arents 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. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Id. (quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)) (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”).
The Court in Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7 (1993) resolved that strict compliance with the requirements of the state's education department are not necessary for a unilateral private placement to be “appropriate.”
Nor do we believe that reimbursement is necessarily barred by a private school's failure to meet state education standards. [The student’s] deficiencies, according to the school district, were that it employed at least two faculty members who were not state-certified, and that it did not develop IEPs. As we have noted, however, the 1401(a)(18) requirements - including the requirement that the school meet the standards of the state educational agency, 1401(a)(18)(B) - do not apply to private parental placements. Indeed, the school district's emphasis on state standards is somewhat ironic. As the Court of Appeals noted, “it hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child's needs in the first place.” [Carter v. Florence County Sch. Dist. Four, 950 F.2d 156, 164 (4th Cir. 1991)]. Accordingly, We disagree with the Second Circuit's theory that “a parent may not obtain reimbursement for a unilateral placement if that placement was in a school that was not on [the State's] approved list of private” schools. [Tucker v. Bay Shore Union Free School Dist., 873 D.2d 563, 568 (2d. Cir. 1989)] (internal quotation marks omitted). Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Id. at 14.
The burden to establish the Private School as an appropriate placement rests with the parents. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2d Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated. Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S. v. Yonkers Bd. Of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. 20 U.S.C. § 1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. 7, 14. For example. a private placement need not provide cet1ified special education teachers or an IEP for the disabled student. Id. In addition, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d 96, 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that “the test for the parents' private placement is that it is appropriate, and not that it is perfect”).
Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether a school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement. Ultimately, the issue turns on whether a placement—public or private—is “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to “maximize the potential of handicapped children,” Rowley, 458 U.S. 176, 213, it must provide such children with “meaningful access” to education. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 133 (2d Cir. 1998). With these goals in mind, courts have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be “likely to produce progress, not regression.” Id. at 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F, 118 .F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore “examine the record for any ‘objective evidence’ indicating whether the child was likely to make progress or regress under the proposed plan.” Id. (quoting Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).
Thus, “in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit.” Rowley, 458 U.S. 176, 207; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that “[p]assing grades are ... often indicative of educational benefit”). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. Walczak, 142 F.3d 119, 130.
No one factor is necessarily dispositive in determining whether the parents’ unilateral placement is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. 176, 207. 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. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 770 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small. the student made significant educational progress, and his grades and behavior improved significantly). 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. M.S., 231 F.3d 96, 105 (“the test for the parents' private placement is that it is appropriate, and not that it is perfect”). Parents 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.” Rowley, 458 U.S. 176, 188-189; Frank G., 459 F. 3d 356, 364-365.
With this understanding of the law, I now tum to the facts of the placement of the Student to determine if the Parents’ unilateral placement was appropriate.
ii. Analysis
In my analysis of Prong II, I considered testimony from the Support Coordinator, the Mother and the Psychologist. I also consider the Student’s grades from the Private School (Ex. A). Conceptually the primary concerns are (1) academics, and (2) the Student’s social/emotional/behavioral development. The Parents—with the support of their witnesses—established that the Student’s current placement was meeting the Student’s educational needs in the LRE.
Academic Progress
The Support Coordinator testified that the Student achieved high grades (T. 181), a fact borne out by the Student’s 1st quarter report card (Ex. B). She noted that the Private School has moved away from Regents exams, as it “allows us to not be so constrained as to teach that particular test. It allows us to teach more to where the students' interests lies, and it allows us to provide a more -- really a more rigorous classroom experience with students.” (T. 193-194). The Support Coordinator added that the Private School offers AP and college-level classes. (T. 194). She explained how the Private School supports students in taking college-level classes:
When they are juniors and making their class selections for senior year, they're provided with a list of class options and opportunities that they can take, so they simply really have to just choose those classes.
If a teacher or a guidance counselor thinks that those classes are beyond their abilities, they would have a conversation at that point, but they're open to really any student that wants to try. (T. 194-195).
The Support Coordinator testified that she anticipates the Student will take college-level classes. (T. 195). With respect to the Student’s needs, all the teachers at the school were made aware of such needs. (T. 200). When asked if any teachers raised concerns of the Student not being a good fit at the Private School the Support Coordinator responded that they did not. Id. While the Private School does not require certified teachers, nor does it provide a resource room for special education, the Private School does offer Academic Intervention Services (“AIS”) which is a general education service. (T. 223, 229). The Student received AIS for the first two-thirds of the school year however in the last third of the year it was replaced with music classes. (T. 235). The Support Coordinator explained this change in programming:
[T]he last third of the year, based on his academic achievement, we allowed [the Student] to be removed from AIS classes and so that that schedule could be filled with music class, which more suited his social and emotional needs as opposed to his academic needs. (T. 235).
The Student went on to receive counseling privately. (T. 254). Ultimately, no concerns were raised concerning the propriety of the Private School education as related to the Student. (T. 200). Additionally, the Student’s teachers have made the following observations:
[The Student’s] ELA teacher reports that he is doing well. He states that he has good effort and works hard. In Global class his teacher states that his reading level appears to be on grade level. He also states that he often misunderstands that intent of a question but once the question is clarified his recall of information is strong.
In Religion class he does a good job writing in his journal and following the correct format. In Global, [the Student’s] writing is good. He is able to write in complete sentenced with proper structure.
In Math, [the Student] is focused during class and asks questions on a regular basis. It would be helpful for him to review material on a regular basis. (Ex. A-2).
Social/Emotional/Behavioral Improvements
Teachers report that the Student is very well behaved in class and likes to participate. He has a strong work ethic and gets his work in on time. They state he seems happy and is social with the teacher and other students. (Ex. A-2).
This is consistent with the Support Coordinator’s testimony, who noted that the Student improved socially and even joined several clubs following his enrollment at the Private School:
[The Student] did a really nice job transitioning from [the District’s Recommended Placement] to [the Private School]. His grades are excellent. He seems to have made a few friends in classes that he can get along with. He jumped into the music program at school. He joined the soccer team. It was a decent transition I thought. (T.181).
When asked if she had the opportunity to observe any of the Student’s social interactions at school, the Support Coordinator testified:
At the end of the year, they were -- his ELA classroom was working on a project and it was independent work and the classroom was getting a little boisterous, and [the Student] and another student decided that they would prefer a quieter environment so they came to work in the guidance office.
And the other student came with [the Student], both were working together on the project. It was very -- they were very collegial. They were working well together, had a very nice working relationship together, so that was a nice interaction that I was able to witness. (T. 192-193).
Additionally, the Support Coordinator added that she observed growth in the Student’s socialization from the beginning of the school year to the end of the school year. (T. 197). “It's a small school. I stand out in the hallway a lot. I see the boys going by. I know I've seen him chatting and kind of being a little more open from the beginning of the year towards the end of the year, a little more chatty, a little more conversational with the kids in the hallway.” Id.
She also noted that the Student plays soccer and plays in the school band and is also a eucharistic minister for school masses. (T. 193). Additionally, the Student was slated to gain some community experience, as the IESP notes mention that the Student “will participate in 20 hours of community service each year.” (Ex. A-3). The IESP notes also state that the Student was to be provided with career days and the opportunity to enroll in the Life Skills and Public Speaking elective classes. Id.
The Psychologist, who testified on the Parent’s behalf, agreed that the Student needed a greater degree of academic rigor and more exposure to typically developing peers, both needing to occur in a smaller setting. (T. 301). This is consistent with the Mother’s reasoning for placing the Student at the Private School:
Knowing that it had 60 kids for his entire sophomore class as compared to if he were to go to [a public school], my understanding -- I don't know exactly how many kids are in that class, but I think it's one of the larger schools in our area. It's probably four times I think bigger than [the Private School]. So, we knew that [the Student’s] success had always been in a small environment. It didn't have to be restrictive necessarily, but the sheer number of kids in his class and in the overall school has always seemed to make a difference in his anxiety level, his just feeling comfortable. (T. 332).
The Mother stated that the Student began to branch out socially, making friends at the new school and picked up numerous hobbies. (i.e., joining the A-V club). (T. 339). In one instance, the Student made a friend from school:
He's gone to -- he has really taken to one friend that's in his music class. They've gone to a Bisons game. They both enjoy fishing, so they've gone fishing. We went out to see his friend who happens to play the guitar. It was at a car show in [], so we went out and spent time with his friend and parents. He -- so that's one of his friends that he has become close to and spends time with outside of school. (T. 340).
After consideration, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. By this I mean a less restrictive environment than what the Student was recommended to have at the District’s Recommended Placement. The class size is larger yet the total number of students at the school is relatively low compared to that of the District’s Recommended Placement. The Student has demonstrated progress behaviorally while maintaining academic success. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction in an environment that incorporates his past social, emotional and behavioral improvements without sacrificing his relatively strong academic achievements. I, therefore, rule for the Parents for Prong II.
c. Prong III: The equities lie in favor of the Parents in that they cooperated with the District.
i. Legal Standard
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 where 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[6]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
ii. Analysis
The Parents testified that she specifically requested that the District reimburse/pay for tuition at the anticipated Private School Placement. (T. 378-382). This was not placed in issue by the District (T. 81). In fact the testimony confirms as much.
There is also a letter from the District’s Recommended Placement (Ex. 13) advising the District about the imminent change to the Private School. This letter does not discuss tuition reimbursement, but it is consistent with the Parent’s testimony and goes to the issue of notice to the District of the upcoming change. (Ex. 13)
There is a second relevant letter (Ex. 16), from the context of which I find that the issue of payment was clearly being discussed. In that letter, the District denies any responsibility for payment and assigns responsibility to the Parents. But, of course, that is the purpose of this impartial hearing.
Additionally, when questioned, the Parent explained that her understanding of the reimbursement concept was predicated upon tuition payment for previous years placements at the District’s Recommended Placement. Her testimony established that this notice was timely as it was the last CSE meeting, on August 29, 2022, before the unilateral placement. (T. 381-382).
Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED
For the District to reimburse/directly pay the Parents/Private School for cost of tuition at the Private School, where they unilaterally placed the Student for the 2022-2023 SY.
Dated: March 18, 2024
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.
Footnotes
[1] In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 58 (2005).
[2] The CSE team recommended the Student be placed in a 6:1+1 Special Class and receive Psychological Counseling Services (Individual, 1x30; Small Group, 1x30). (Ex. 14-8). These services were to be implemented in a six (6) day cycle. Id. Additionally, the Student was eligible to receive individual counseling in a neutral location for up to four (4) times per year (each session consisting of one (1) hour). Id. Further, the CSE team recommended the Student receive various program modifications such as visual models and breaks. Id. The Student was set to receive these services on a 12-month basis (with an additional weekly session of group Psychological Counseling and Services). (Ex. 14-9).
[3] According to the Student’s IEP, his classification is Emotional Disability; however, the published regulations still use the term Emotional Disturbance. See 8 NYCRR Part 200.1(zz)(4) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors. (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.
[4] This is the IEP that the Parents rejected at the time of the unilateral placement.
[5] With respect to the Student’s writing goal, the Student was slated to “be able to write a five-paragraph essay response utilizing a graphic organizer to organize his thoughts and details while using correct capitalization and punctuation.” (Ex. 14-7). As for the Student’s social/emotional/behavioral goal, the Student “will utilize appropriate coping skills (e.g., ask for time and space when needed, assertive communication, etc.) in order to overcome a negative situation.” Id.
[6] § 300.148 Placement of children by parents when FAPE is at issue. (a)General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b)Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c)Reimbursement for private school placement. If the parents of a child with a disability, ( who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d)Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e)Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))