New York City Department of Education, Impartial Hearing Decision

IHRS or NYC Case Number: 246315

Impartial Hearing Officer: Bruce S. Olinger

Request Date/Date Complaint Filed: 3/1/23

Date of Decision: 9/18/23

FINDINGS OF FACT AND DECISION

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint dated March 1, 2023 by Parent (Parent Ex. A). Parent claims a denial of FAPE for the 2022/23 school year and seeks, by this Due Process Hearing Request, funding/reimbursement of tuition at Parent’s unilateral placement during the 2022/23 school year. Parent had advised the DOE of its intention to enroll Student at the unilateral placement, and to seek tuition funding for such placement, if an appropriate educational placement was not provided by the DOE, by notice dated June 16, 2022 (Parent Ex. B). Parent thereafter sent a follow-up notice to the DOE, again advising the DOE of its intention to enroll Student unilaterally in the absence of an appropriate public-school placement, by notice dated August 19, 2022 (Parent Ex. C).

The undersigned was appointed as Impartial Hearing Officer on March 1, 2023.

Thereafter, hearings were held on numerous dates. During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates indicated in IHO exhibits, all in order to allow for 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 September 9, 2023.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student was, at the beginning of the 2022/23 school year, an [REDACTED] year old child. According to the Vineland-3 assessment, a standardized measure of adaptive behavior, which measures Communication, Daily Living Skills, and Socialization, Student’s overall level of adaptive functioning, as scored by his Adaptive Behavior Composite (ABC) was 79, well below the normative mean of 100, equivalent to an 8th percentile rank. His communication standard score was 94, equivalent to the 34th percentile. More specifically, Student presented with struggles with expressive and receptive language, with a vocabulary repertoire below grade level. He also had difficulty expressing his feelings and could not mand functionally for his desires. He was noted to use repetitive language that hinders the clarity of his speech and speaks in a low tone of voice that is hard for others to hear. His language comprehension was poor, did not understand when people spoke to him, and struggled with written instructions and multistep directions. His Daily Living Skills domain score, which assessed his performance of the practical, everyday tasks of living that are appropriate for his age, was 69, corresponding to the 2nd percentile. His score for the Socialization domain, which assessed his functioning in social situations, was 76, corresponding to a 5th percentile score. Cognitively and academically, Student had difficulty with comprehension, struggling to comprehend written or verbal instructions. He presented with a poor memory and struggled to recall many details. In math, Student struggled to perform any example without direct help from the teacher, and could not learn any new concepts in a timely manner. He had difficulty with the concept of place value or addition with 3-digit numbers, as well as adding or subtracting anything to 3-digit numbers. He was also noted to struggle to complete any word problems. Behaviorally, Student presented with numerous maladaptive behaviors across settings, such as crying when his peers do anything insignificant to him. He also was noted to manipulate his peers and acts in a self-directed way. He would socially withdraw from peers instead of engaging in functional play and, when overly frustrated, would act with physical aggression. Also noted was Student’s self-directed behavior, his disregard of school policies and authoritative decisions, his withdrawal from social situations, his disruption of teachers and peers during classroom lessons, and his disrespectful behaviors towards teachers and failure to follow instructions (Parent Ex. H).

A psychoeducational evaluation of Student dated August 21, 2022 (Parent Ex. I) additional found, based on the result of the Weschler Intelligence Scale for Children – Fifth Edition (WISCV), scattered performance across all the cognitive areas, with notable weakness in processing speed. Additionally, Student’s Verbal Comprehension Index, which measures how well Student is able to verbalize meaningful concepts, think about verbal information, and express himself using words, resulted in a score of 76, or Very Low range (5th percentile). His Processing Speed Index score, measuring how quickly he was able to identify visual information to make and implement decisions, was 63, or Extremely Low range (1st percentile). Academically, based on the Wechsler Individual Achievement Test 4th Edition (WIAT-4), a standardized assessment of academic skills measuring overall academic achievement in the areas of reading, math, and writing, Student achieved a Total Achievement score of 77, or Very Low range (6th percentile). Behaviorally, Student received an Internalizing Behavior v-scale score of 20, or Elevated range, and an Externalizing Behavior v-scaled score of 24, or Clinically Significant range, with reported behaviors of irritability, unverified complaints of feeling sick, engagement in temper tantrums, disobedience of those in authority, stubbornness, physical aggression, physical and verbal abuse and willful destruction of objects.

Recommendations included placement in a special education program in a 12:1:2 setting to provide individualized attention and support that Student required in reading, writing, and math, during summer as well as during the regular 10-month school year, as well as speech and language therapy, counseling and occupational therapy.

Parent had requested, first on June 16, 2022 (Parent Ex. B) and then again on August 19, 2022 (Parent Ex. C) an IEP meeting to be held and a special education public school placement to be provided to Student. The DOE did not present any evidence or witness testimony at the hearing, and the hearing record is devoid of any IEP created for Student for the commencement of the 2022/23 school year, although the DOE conceded that an IEP was finally created for Student on May 8, 2023 (Tr. p.76).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

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]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

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). The statute ensures an "appropriate" education, "not 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).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “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 (emphasis added), 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 “The 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”. And 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).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The burden of proof to establish that a FAPE has been offered to the Student 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]).

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 :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. 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).

Generally, in applying the three-prong standard in a tuition-reimbursement case enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in consideration of the issues presented, to first determine whether or not the School District offered the Student a free, appropriate public education (FAPE). The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, if a determination is made that District did in fact offer the Student a FAPE for the relevant school year, the inquiry into the Parent’s request for tuition reimbursement for the unilateral placement would cease; once a District has offered FAPE, a parent’s right to the requested relief of tuition reimbursement must be denied. Similarly, if it is determined that the District failed to establish that it provided a FAPE to the Student, then a further determination must be made as to the appropriateness of the Parent’s unilaterally-selected school. The burden of establishing such appropriateness falls upon Parent (N.Y.S. Education Law §4404). See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007), which held that “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”. Similarly, Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

Should the Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for relief must be denied. If, however, the Parent meets such burden, and the unilaterally-selected educational facility is determined to be appropriate, a review of the equities must be undertaken to determine whether equitable considerations favor an award of relief to the parent, a necessary prerequisite for the awarding of such equitable relief. In the absence of evidence demonstrating that parents failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. Application of a Child with a Disability, Appeal No. 04-049.

ANALYSIS

As noted above, even in the case where a parent seeks tuition funding/reimbursement for a unilateral placement of a child, the DOE still has the initial burden of proof to establish that a FAPE has been offered to the Student for the school year at issue. If such burden is not met, the parent must then prove the appropriateness of the unilateral placement. There must then be an examination of equitable factors before a final determination may be made.

The first area of examination, therefore, is whether the DOE provided a FAPE to Student for the 2022/23 school year.

In that regard, it is noted that the DOE presented no evidentiary or documentary evidence whatsoever. More particularly, the DOE failed to respond to Parent’s two (2) separate notices, dated June 16, 2022 and August 19, 2022, requesting an IEP and special education public school placement for Student for the 2022/23 school year until the creation of an IEP dated May 8, 2023, with an implementation date of September 7, 2023, and failed to take any steps to evaluate Student to determine his eligibility for such requested placement until almost a full year after the first parental notification.

To the extent that the DOE claims that Student was not entitled to a FAPE until January 13, 2023, or 90 school days following the second parental notification of August 19, 2022, it is noted that, even absent parental notification, the DOE has failed to comply with its Child Find obligations. The purpose of the "Child Find" provisions of the IDEA is to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). Notably, the IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][7]). And because the child find obligation is an affirmative one, the IDEA does not even require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [ finding that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz, 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]).

New York state imposes additional Child Find requirements on school districts. In its Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, dated September, 2007, the school district of location (defined as the school district within whose boundaries a nonpublic elementary or secondary school is located) is responsible for child find for students who are parentally placed in nonpublic schools located in their geographic boundaries. Child find is the practical method the public school district will use to identify, locate and evaluate students suspected of having disabilities who are parentally placed in nonpublic schools. The child find activities must be similar to activities undertaken for students with disabilities in its public schools and must be completed in a time period comparable to that for other students attending public schools in the school district.

Additionally: - Each public school district must consult with the nonpublic schools where students are parentally placed to determine an accurate count of students with disabilities attending such schools and receiving special education services; - The district of location must have procedures for conducting evaluations and reevaluations of students enrolled in nonpublic schools located within their district within required timeframes and at no cost to parents; - Unless the parent and district agree otherwise, the district of location must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability, even if the student is not currently receiving special education services (emphasis added). It is important that required reevaluations are conducted because they provide current data needed to determine the total number of eligible students which is used in calculating the proportionate share of funds that must be used on services.

In the instant case, no evidence or testimony was provided by the DOE to establish its compliance with the Child Find requirements articulated above. The obligations imposed under both Federal and New York law require a school district to locate and identify such students that require special education services, not to simply wait for parental notification. The hearing record is devoid of any DOE-based procedure having been in place or followed that would have identified Student as one who required special education services, particularly in light of New York State law, cited above, that requires an affirmative consultation with private schools to identify any such eligible children. Furthermore, in a case where a finding was made for the school district against a parental Child Find claim, the court noted numerous affirmative steps that the school district took to comply with its Child Find obligations, describing them as “comprehensive”, including posting child find notices in the local paper, sending residents the information in their tax bills, and placing targeted posters and pamphlets in the private schools, none of which were undertaken by the DOE in this case. P.P. ex rel. Michael P. v. West Chester Area School District, 585 F.3d 727, 731 (3d Cir. 2009). Furthermore, as the unilateral placement is a fulltime special education placement for students with behavioral and/or language deficits (Tr. p. 58-59), and the DOE was advised of Student’s attendance there since the beginning of the prior school year, the DOE certainly had notice of Student’s need for a special education placement; the fact that it received specific notification from Parent requesting same, and nevertheless failed to respond or act, until it finally did create an IEP for Student dated May 8, 2023, makes its failure to do so before such time egregious. Thus, in its failure to identify, locate, and evaluate Student for special education services, and in its failure thereafter to timely respond to Parent’s two separate requests for such evaluations and placement, the DOE has failed to comply with both Federal and New York State Child Find mandates, completely undermining the intent and obligations of its Child Find requirements. The DOE’s argument notwithstanding, the absence of a DOE classification for Student at the time of the unilateral placement did not preclude Student’s entitlement to such placement, as the DOE’s Child Find obligations are designed to identify the very students for whom a timely and proper classification has been delayed or completely disregarded; otherwise, the entire point of Child Find would be undermined. Accordingly, in its failure to present any evidence or testimony whatsoever, and as the hearing record supports the finding that the DOE failed to comply with its Child Find requirements to identify and appropriately place Student for the 2022/23 school year, it is determined that the DOE has failed to provide Student a FAPE for the 2022/23 school year.

Regarding the appropriateness of the unilateral placement, testifying first for Parent was the supervisor of the unilateral placement, whose duties included oversight of individual students and their individualized plan, including academic, social-emotional and behavioral plans, overseeing the data collection platform for each student, ensuring effective and efficient coordination between teachers and students, and ensuring each student’s adequate progress in the program (Tr. p. 58). She described the unilateral placement as a program designed for students with behavioral challenges and language delays, preschool through 6th grade, and housed in a general education school. Opportunities for students to interact with typically-developing peer models occur during mealtime, during social-skills classes and when a student masters an individual task it will be generalized with the addition of several typically-developing peers (Tr.

p. 58-59). Regarding Student in particular, the witness stated her familiarity with him, having observed him both in and out of the classroom during the 2022/23 school year, having coordinated with his staff, and having overseen his academic, social-emotional and behavioral plans, adjusting as needed. His class was comprised of 7 students in total, all with special needs, and with opportunities to interact with typically-developing peers, with one licensed special education teacher at all times plus one assistant (Tr. p. 59-60). The witness testified that Student presented with several behavioral challenges, including a very short attention span, likely due to language deficits, a very “heavy, intense” response to frustration, which included physical and verbal aggression, numerous attention-seeking behaviors due to a lack of confidence, and overly intense reactions that disrupted himself from learning as well as disrupted the class (Tr. p. 60-62). In the social/emotional realm, the witness stated that Student lacked the capacity to be the social leader that he desired to be, and would enter upon a group trying to be as loud and vocal as he could, which he could not sustain and which did not encourage interaction from his peers, and was unable to participate in the activities that others were engaged in. He was not preferred socially by his peers, so had to resort to manipulation to try to win their engagement, which resulted in a lack of meaningful interactions with peers (Tr. p. 62-63). Academically, the witness stated that Student had a very hard time with transitions and great difficulty with following directions and understanding what was being requested of him. He also presented with deficits in his long-term memory, unable to remember what was told to him more than a minute earlier, which exacerbated his lack of focus and greatly affected his reading comprehension abilities. His decoding skills were only basic, 1st grade level. His math skills were also only basic (single-digit addition), with other required math skills beyond his capacity. In the area of writing, Student had great difficulty formulating sentences, encoding and spelling, causing frustrations resulting in whining and crying and resulting in him oftentimes not even trying to initiate written work (Tr. p. 63-66).

To address Student’s needs, the witness testified that she began with a functional behavior assessment to address the challenging behaviors that directly affected Student in the classroom. Once such behaviors were identified, a behavior intervention plan was created, which included strategies and interventions that were put in place to prevent and/or correct such behaviors. A treatment plan was then created which encompassed language, communication, social behavior, reading, writing, math, and content instruction, with small incremental goals that directly addressed his deficits and were inputted into a data collection platform called Rethink, a platform created specifically for the New York City school system to align the treatment plan with applied behavior analysis to collect data. This allowed for monitoring of progress on a regular basis and directing instruction in accordance with his progress to allow for a consistent measurement of Student’s needs and adjustments to his plan, as necessary, throughout the school year (Tr. p. 66-68).

Regarding Student’s progress during the 2022/23 school year, the witness testified that Student made progress in several areas. Behaviorally, Student learned, with the contingencies and reinforcers that were put in place, to recognize and monitor his behaviors, with reinforcements received for appropriate replacement behaviors. His challenging behaviors decreased in frequency, intensity, and duration. Socially, the witness stated that Student, through the socialskills program put in place, was able to identify the challenging behaviors that were preventing him from being included in a peer group, and which then allowed him to engage with peers in more meaningful ways. In academics, the witness stated that Student improved in his readiness skills, which in turn allowed him to progress with his vocabulary, language and comprehension, which not only improved his literacy but also his problem-solving capacity and content instruction. His math computation skills also improved. During the course of the 2022/23 school year, the witness stated that Student gained an entire year of grade-level acquisition of information and material, and that overall, Student made progress during the course of the 2022/23 school year (Tr.

p. 68-70). The witness stated that Student also received related services of occupational therapy, speech therapy, and counseling in his social-skills program, with all services provided by appropriately licensed and certified professionals in their respective fields (Tr. p. 70-71). The witness acknowledged a non-secular component of the curriculum (Tr. p. 71).

On cross examination, when asked whether Student had a diagnosis at the time that he began the 2022/23 school year, the witness stated that the unilateral placement doesn't rely on diagnoses, but rather works on the functional outcome of students and where they are academically when they enter the program (Tr. p. 73). In further discussing the factors that went in to accepting Student for the 2022/23 school year, the witness stated that Student was behaviorally challenged and language delayed, yet made progress the previous year through a Common Core curriculum, with modifications and accommodations, and the provision of ABA methodology, with progress confirmed by periodic evaluations and assessments (Tr. p. 81-84). The witness also testified that Student’s speech and occupational therapies were provided the prior school year and, as Student showed progress and a continued need in those areas, as confirmed by a psychoeducational evaluation (Parent Ex. I), such therapies were continued during the 2022/23 school year (Tr. p. 91). When asked whether Student’s IQ factored into his class placement, the witness stated that, rather than his IQ, Student’s class placement and peer grouping was determined by his functional academic performance, his behaviors, his capacity to learn, his grade level of acquisition of information and material, his age and his prior progress (Tr. p. 100). When asked why Student was determined to require an extended school year (12-month) placement, the witness stated that such determination was based on the fact that, during the prior school year, Student experienced delays every time that he was out of school, greater than those of his peers. She stated that not all Students are enrolled on a 12-month basis, but Student was so determined based on graphing and data collection, which showed more extensive delays during periods in which he was out of school (Tr. p. 101).

Parent testified that she had requested that the DOE evaluate and provide Student with a public school placement for the 2022/23 school year twice, by written notices dated June 16th, 2022 and August 19th, 2022, but that the DOE failed to provide the requested public school placement, nor did the DOE provide her with the Procedural Safeguards Notice or Prior Written Notice prior to the beginning of the 2022/23 school year (Tr. p. 105-106). Parent also testified that her household income for 2022/23 school year was approximately $35,000.00 and that the family qualified for Medicaid during that year (Tr. p. 106).

Student’s Curriculum and Classroom Schedule (Parent Ex. D; F), Behavioral Assessment and Behavioral Plan and Treatment Plan, Teacher Progress Reports, Speech/Language and Occupational Therapy Reports and Report Card (Parent Ex. H) all document an educational program specifically designed to address the academic, language, and behavioral needs of Student, as well as progress in all such areas, consistent with the testimony of Parent’s witness and, as fully set forth in the hearing record, need not be reiterated here.

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. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 (2d Cir. 2007, and that “the test for the parent’s private placement is that it is appropriate, not that it is perfect.” See Warren G. ex rel. Tom G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); Board of Educ. v. Rowley, 458 U.S. 176 at 207 (1982). Based upon the evidence presented regarding Student’s progress in the areas of academics, social functioning, behavior and language, and delays experienced during periods of school closure, the hearing record supports that such burden has been more than amply met, establishing that Parent’s 12-month unilateral placement has provided “educational instruction specially designed to meet the unique needs of a handicapped child”. For all of the reasons set forth above, it is determined that the 12-month unilateral placement constituted an appropriate educational placement for Student for the 2022/23 school year.

Finally, in reviewing the equities, no evidence was presented by the DOE to establish parental non-cooperation in the attempt to create an appropriate educational placement for Student for the 2022/23 school year, nor was any such claim of non-cooperation asserted by the DOE. Parent made two separate attempts in writing for an evaluation and IEP and fulltime special education placement for Student, neither of which the DOE ever responded to. Parent’s initial Ten Day Notice to the DOE, advising it of Parent’s intention to unilaterally place Student in the absence of an appropriate public school special education program, was provided more than ten days prior to the commencement of the 12-month 2022/23 school year. In that regard, it is noted that the purpose of such written notice is to advise the DOE of the disagreement with an IEP recommendation so that the DOE has a reasonable opportunity to address the parental concerns and to remedy them. However, in the absence of a public-school placement available and offered to Parent, as was the case here, parental notice to the DOE is not required. See In M.G. v. District of Columbia, 246 F. Supp. 3d 1, 69 IDELR 246 (D.D.C. 2017), which held that giving a ten-day notice of unilateral placement was not required when no public-school placement was offered or existed. In the case here, such notification, even not required under the circumstances of this case, was nevertheless provided by Parent in a timely manner. Accordingly, the equities are determined in favor of Parent.

The full tuition cost for Parent’s unilateral placement for the 12-month 2022/23 school year was $144,000.00 (Parent Ex. D), of which Parent has paid only $500.00 (Parent Ex. E). As a class schedule was not submitted into the hearing record for the summer portion of the school year, the non-secular (religious) portion of the curriculum, based on the 10-month school year curriculum, is computed at approximately 6% ($8,640.00). A parent has standing to pursue a claim for direct funding of tuition against the DOE when payment of tuition has been deferred pending the outcome of a Due Process Hearing. E.M. v. N.Y.C. Dep't of Educ.,758 F.3d 442 (2d Cir. 2014). See also Connor v. Mills, 34 F.Supp. 2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y), which provides, “Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” Accordingly, Parent is hereby awarded reimbursement for the deposit paid and funding of the balance of tuition, minus the non-secular portion ($8,640.00), subject to the directives below.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE has denied Student a FAPE for the 2022/23 school year, with the 12-month unilateral placement determined to be Student’s appropriate educational placement.

2. The DOE shall reimburse Parent for tuition paid to the unilateral placement for the 2022/23 school year, in the amount of $500.00, and directly fund the balance of the secular portion of the 2022/23 school year in the amount of $134,860.00, upon Parent providing the enrollment contract, Student’s proof of attendance thereat, and proof of such payments made by Parent to the unilateral placement.

3. The DOE shall comply in all respects with this Decision and Order.

Dated: September 18, 2023

BRUCE S. OLINGER

Impartial Hearing Officer

APPEAL RIGHTS

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Request for Due Process Proceeding and Notice of Appearance, dated 02/28/2023 (7 pages)

B. Ten-day Notice, dated 06/16/2022 (2 pages)

C. Follow-up Notice, dated 8/19/2022 (2 pages)

D. Student Contract, Program Description, and Curriculum, dated 06/17/2022 (15 pages)

E. Tuition Affirmation, Breakdown and Payments, dated 07/12/2023 (2 pages)

F. Curriculum Schedule, 2022-2023 (1 page)

G. Student Attendance, 2022-2023 (1 page)

H. Assessments, Plans, Reports, and Evaluations, 2022-2023 (31 pages)

I. Psychoeducational Evaluation, dated 08/21/2022 (7 pages)

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I. Order

of Non-Consolidation, dated 3/1/23 (5 pages)

II. Orders Extending the Compliance Date, various dates (5 pages)