New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 596990/246398

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Richard J. Zeitler, Jr.

Date of Filing: 03/03/2023

Hearing Requested by: Parent

Date of Hearing: [REDACTED]

Record Close Date: 07/27/2023

Date of Decision: 08/10/2023

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Education Advocate

[REDACTED], Parent Student

[REDACTED], Assistant Head of Middle School, Private School

For the Department of Education:

[REDACTED], Consultant Impartial Hearing Representative

Background

The Parent, through counsel, filed a Due Process Complaint (DPC) on or about March 3, 2023. In the DPC, the Parent alleges that the Department of Education (DOE or Department) failed to offer the Student a free appropriate public education (FAPE) for the 2021-2022 school year, (see Ex. A-1 to A-2) specifically that the DOE failed to evaluate the Student thoroughly and on a timely basis, and that the Committee on Special Education (CSE) failed to develop a substantively and procedurally appropriate Individualized Education Program (IEP), including that an IEP meeting was not scheduled for the 2021-2022 school year.1 (See id. at A-1 to A-2) By way of relief, Parent seeks an award of funding of tuition and related services for the Student’s attendance at the Private School for the 2021-2022 school year. (See id. at A-2 to A3) 2

Procedural History

I was appointed to preside over this matter on March 6, 2023. A Pre-Hearing Conference was held, and I issued a Pre-Hearing Conference Summary and Order on May 3, 2023. (See IHO Ex. I) I issued an Order of Extension on May 25, 2023. (See IHO Ex. II) The merits hearing was held before me on [REDACTED]. The DOE and the Parent introduced exhibits, all of which were admitted into evidence.3 The DOE did not present any witnesses and relied upon the exhibits for its position that the Student was provided with a FAPE for the 2021-2022 school year. (See Tr. at pp. 14 to 15) The Parent offered two witnesses, the Assistant Head of Middle School at the Private School, and the Parent.4 At the hearing, I also requested a DOE Psychoeducational Evaluation Report dated May 22, 2019, that had not been offered into evidence by the parties, which the Parent submitted after the hearing and before the record was closed. (See IHO Ex. III) This decision now follows.

1 The DPC also alleges a violation of Section 504 of the Rehabilitation Act, for “adopting and implementing blanket policies with respect to the recommendations made on [the] IEP and the provision of special education services to” the Student. Given that the same relief was sought under both statutes, and upon my finding that the Section 504 claim was drafted very broadly and without particularization, I find that I need not address Section 504 for this decision.

2 The Transcript of this hearing will be denoted as “Tr.” The DPC also requests transportation costs; however, at the hearing, the Parent Attorney withdrew that request. (See Tr. at pp. 13 to 14) 3 See Exs. 1 to 5 and A to K.

4 The direct testimony of the Private School witness was offered in affidavit form, and both witnesses gave live testimony at the virtual (video) hearing.

Findings of Fact

After a full review of the hearing record, I make the following findings of fact and determinations.

The following is not in dispute. The Student is now [REDACTED] years old, and he has been classified by the CSE as a student with Autism. (See Ex. 2-1) He was in eight grade on November 2, 2020, when the CSE developed his most recent IEP. (See id. at 2-1 and 2-31) Upon its review of the Student’s evaluation results, academic achievement/functional performance and learning characteristics, social development, physical development, and management needs, and upon setting annual goals for the Student and considering the parents’ concerns, the IEP team recommended a program consisting of: a class no larger than 12 students with one teacher and one teaching assistant (12:1:1) for most classes (English language arts [ELA], math, sciences, social studies, visual arts, and health); counseling in a group of three (3:1), once per week for 40 minutes (1x40); occupational therapy (OT) 1:1 at 2x30 (once in a general education classroom, once in a separate location); parent counseling and training (PCAT) two sessions per year for 40 minutes each session; and speech-language therapy (SLT) 1:1 at 1x40 and 3:1 at 1x40. (See id. at 2-25 to 2-26)

The Department’s Case

As its presentation of evidence, the Department offered five exhibits: a Due Process Response (DPR); the Student’s November 2, 2020, IEP; a March 2, 2021, prior written notice (PWN) confirming the recommendation; a DOE counseling progress report from October of 2020; and a DOE SLT progress report from October of 2020. (See Exs. 1 to 5)

The IEP describes a number of evaluations the CSE relied upon in developing the program, including: an exam “to evaluate [the Student’s] math level and it diagnosed [him] at an overall 5th grade level”; a test “used to evaluate [his] reading level and it was approximately 3rd grade level”; and the NYSESLAT exam, from the Spring of 2019, which rated the Student’s achievements as “Listening: 20/24 Speaking: 21/21 Reading 20/27 Writing: 5/12[.]” (Ex. 2-1) The IEP notes that the Student’s reading ability was overall in the 4th grade level, while comprehension was in the 3rd grade level; he was “attentive but also distractible”; he “appear[ed] to have difficulty with comprehending text” and “w[ould] benefit from extra time for completing tasks and taking exams”; in math, he “appear[ed] to have difficulty with linear equations” and he “trie[d] to his ability”; in science, he performed “approximately at [a] fourth grade level” and he “appear[ed] to have difficulty with cells”; in social studies, he performed “approximately at [a] fourth grade level” and while he “underst[ood] historical inventions and their effects[,]” he “appear[ed] to have some difficulty with historical events.” (See id. at 2-1 to 2-2) The team concluded that, according to the evaluations, the Student “need[ed] support in the language modalities” and to “assist with his reading and writing, plot maps identifying story elements and various graphic organizers focusing on summarizing main ideas w[ould] be used.” (Id. at 2-2) In addition, the CSE recommended “CSR (collaborative strategic reading)”; “learn[ing] key vocabulary” and “brainstorm[ing] prior knowledge of [a] topic”; “summariz[ing] the gist (main idea) of the selected reading”; “[t]argeted listening strategies”; “[r]epetition of . . . steps [to] increase [his] comprehension in English.” (Id.) In all of the reviewed subject areas, the Student was in a 12:1:1 class at the time. (See id. at 2-1 to 2-2)

The IEP team also review the Student’s then-current SLT evaluation, which noted that “[h]e demonstrate[d] difficulty with language comprehension, and answering related questions” as well as “with summarizing the reading text . . . including the main as well as the supporting details of [a] passage.” (Id. at 2-3) Moreover, his “[w]ritten expression lack[ed] detail and development” and “[f]igurative language, implied meanings, metaphors and similes used in grade-level literature [we]re an area of difficulty[,]” although he was “able to derive meaning when provided with context clues, and clinical prompts.” (Id. at 2-3 to 2-4)

Socially, the Student was described as “happy to learn new things” and was “becoming more comfortable with volunteering information” although he could “become fixated on an object and require redirection.” (Id. at 2-5) He was also reported to “be easily distracted at times, but he is receptive to redirections and he handles change and transitions well.” (Id. at 2-6) Still, it was deemed “hard for him to initiate tasks, shift focus between tasks, identify when he needs help, and identify when he has completed an assignment, without being prompted/redirected by an adult.” (Id.) His “Management Needs” were: SLT; OT; counseling services; positive praise and encouragement; flexible seating; breakdown of complex tasks; redirection to task; breaks when needed; extended time for exams; and multi-modal approach with a focus on visual learning. (See id. at 2-7)

In the “Measurable Annual Goals” section, a number of goals were listed to address the Student’s challenges with ELA skills, math comprehension, and “social pragmatic scenarios” as well as specific goals to address counselling, OT, and SLT. (See id. at 2-9 to 2-24) The “Method” column, used to describe how the goals would be reached, did not list specific activities that related back to the earlier descriptions of the Student’s needs; rather, the “Methods to be Employed” listed generic examples of how teachers and school staff would watch and report (“teacher observation”; “rubric”; “classroom activities”; “teacher materials”; “portfolios”; “task”; “check lists”; “verbal explanation”), with the one exception that could be specific to the Student – “modeling and prompting as needed[.]” (See id. at 2-9 to 2-24)

The March 2, 2021, PWN recommended, for the “10 month school year[,]” placement in a “NYC DOE School Non-Specialized” with a “Staffing Ratio: 12:1+1” and “counseling services (group), occupational therapy (individual), parent counseling and training, speech-language therapy (group), [and] speech-language therapy (individual). (See id. at 3-1 to 3-2) (emphasis added) The PWN reiterates the IEP finding that a “special class in a specialized school 12:1+1 was considered and rejected, as being too restrictive at this time.” (Id. at 3-2) Nothing further was offered to explain the rejection.

Parent’s Case

Assistant Head of Middle School, Private School The Assistant Head of Middle School (AHMS) at the Private School testified as follows. She coordinates operations at the middle school, leads team meetings, and supervises the paraprofessionals and special education teachers. (Ex. K ¶ 4) The Private School “is a school for children with developmental and cognitive disabilities.” (Id. ¶ 7) It offers “programs that support students to be as independent as possible” and “balance[s] academic programming with related services and vocational skills.” (Id.)

The middle school has approximately 60 students, who “are grouped into five cohorts” that each “include[] a maximum of twelve students, joined by one head teacher and one to two paraprofessionals [12:1:1 to 12:1:2].” (Id. ¶ 8) The school’s head teachers “are certified by New York State and/or have a Master’s degree or are in the process of completing a Master’s degree.” (Id. ¶ 12) All related service providers are licensed by the State of New York, and each has at least a Master’s degree in their respective fields. (See id. ¶ 13) Staff and faculty also receive “a significant amount of professional development” including “a two-week summer training program” and “training in curriculum design” as well as “training in distance-learning during the COVID[-19] pandemic.” (Id. ¶ 14)

The AHMS is familiar with the Student, and his attendance at the Private School during the 2021-2022 school year. (See id. ¶ 26) The Student attended a DOE public school during the summer of 2021 and began at the Private School in September 2021. (See id.) The AHMS “frequently observe[d] and interact[ed] with [the Student] during the school day and . . . observed him in class” as well as met “with his teachers and therapists on a regular basis to discuss his goals and progress” at the Private School. (Id. ¶ 27) The “teachers and related service providers collaborated frequently on [his] goals and progress[.]” (Id. ¶ 36) The program developed by staff at the Private School was designed to address his challenges with “maintaining attention, self-regulation, following instructions, and responding appropriately to social cues.” (Id. ¶ 28) They recognized that he required “explicit instruction presented in a multi-sensory manner with significant 1:1 support” and his “individualized goals were developed” in accordance with his assessments and other documents of record. (Id.)

To assist him with his academics, the Student’s reading, writing, and social studies classes were taught in a classroom with a teacher/student ratio of either 8:1:1 or 12:2:2, with small groups of three students for certain skills. (See id. ¶ 30) He was taught coding and decoding skills with a program entitled “Words and their Way” and specific strategies were implemented to “support his comprehension and writing skills . . . including allowing him to choose preference-based materials, guided questioning, verbal reminders and encouragement, breaking tasks into” multiple steps, as well as “an explicit approach and modeling, guided practice, 1:1 support and review, checklists, sentence starters, extended time, breaks, prompting, hands-on activities, multi-sensory projects, graphic organizers, and small group work.” (Id.) SLT was incorporated to address “his difficulties with receptive and expressive language skills” including “comprehending verbally presented short narratives” and “retelling narratives and describing personal experiences” and “maintaining conversations.” (Id. ¶ 33) The therapy included “strategies and supports such as verbal prompting, graphic organizers, providing cuing words . . . role playing, using context clues” and “learning how to identify, describe and solve problems.” (Id.) With the program in place, the Student “made progress in reading fluency and comprehension, sorting, writing, and using words with blends in a sentence” and he “improved in his ability to organize his thoughts, retelling a narrative asking appropriate WH-questions . . . and using new words in sentences,” as well as “improv[ing] his conversation skills[,] such as staying on topic, turn-taking, maintaining conversation, active listening[,] and expressing disagreement in a socially appropriate way.” (See id. ¶¶ 30 and 33)

The Student progressed in his other subjects as well. He was placed in a 9:1:1 math class focused on “computational math skills for daily living and financial literacy” and “worked with other students . . . in pairs or small groups,” where he “benefitted from the small group instruction, graphic organizers, color-coded number lines, and teacher modeling.” (Id. ¶ 31) With these supports, and with prompting, “he demonstrated progress in his math skills . . . as the year went on.” (Id.) He was also able to take part in his other classes as well, including science, technology, creative arts and movement, yoga, music, and health. (See id. ¶ 32) In addition, he benefitted from OT and counseling, where he “improved in self-regulation skills and required fewer verbal cues” with the former, and he “demonstrated improvement in cognitive flexibility, frustration tolerance, delaying gratification, maintaining personal space, and initiating and maintaining conversation” with the latter. (Id. ¶¶ 34 to 35)

It is the opinion of the AHMS that the Private School provided the Student with “the individualized instruction he requires, including a small student-to-teacher ratio in a structured classroom” and other supports that allowed him to “ma[k]e progress academically, socially, and emotionally[.]” (Id. ¶ 37) For these reasons, it is the further opinion of the AHMS that the Private School “was an appropriate placement for him during the . . . 2021-2022 school year[.]” (Id.)

Upon cross-examination and further questioning, the AHMS testified as follows. The Student has certain class times reserved for sessions with related service providers so that he would not miss academic classes. (See Tr. at pg. 30) The middle school program is specifically designed for students with cognitive, intellectual, developmental, and learning disabilities, so it does not have a population of mainstream students to mix with its students who have disabilities. (See id.) Individual skills, such as coding and decoding, could be taught in small groups of three students because the Private School has “teachers, assistant teachers, and paraprofessionals in the classroom,” and there are “flexible classrooms and breakout room[s] so the[] students can be broken down into smaller groups.” (Id. at pp. 38 to 39)

Parent

The Parent testified as follows. The Student had attended a District 75 school and a special education program in a public community school before attending the Private School. (See id. at pg. 44) At times during the 2021-2022 school year, the Private School taught classes remotely, such as when one of the students would test positive for the COVID-19 virus. (See id. at pg. 45) Both he and the Student’s mother discussed the Private School’s program with the school and they agreed that it was the appropriate education for the Student. (See id. at pp. 46 to 47) The Parent “saw the changes . . . the independence and confidence he’s building every day.” (Id. at pg. 47) They signed a contract with the Private School for the 2021-2022 school year but they were unable to pay the tuition because the Parent’s “earnings w[ere] heavily impacted by the COVID-19” pandemic and “inflation ma[d]e the[ir] living costs higher than ever.” (Id. at pp. 47 to 48) He understands that if the DOE is not ordered to pay, he is contractually responsible for paying the tuition. (See id. at pg. 48)

Closing Statements

In summation, the DOE Representative contended the following.^[5] The Department’s exhibits demonstrate that the program developed by the DOE for the 2021-2022 school year offered the Student a FAPE. The Private School, however, was not an appropriate placement for the Student because it did not provide the Student exposure to any mainstream students and therefore was not the least restrictive environment. Moreover, the evidence did not prove that its program was sufficiently individualized to the Student and his needs; for instance, all the students in the Student’s middle school program receive the same math and humanities curriculum.

In closing, the Parent Advocate argued as follows.^[6] The Department offered no testimony to show that its IEP would have provided the Student with a FAPE for the 2021-2022 school year. The Student received an individualized program at the Private School that included small group instruction. Moreover, the Student had attended a District 75 placement, but given the significance of the Student’s disabilities, the Private School was the least restrictive environment to address his needs.

Credibility

After considering the evidence, including all the admitted documents and the witness testimonies, I determine the following. In admitting the documents, I found them relevant, detailed, and consistent with the allegations in the DPC, as well representative of the facts for which they were offered. I therefore credit all the exhibits. As for the witnesses, I found them to be credible and have no reason to doubt their veracity. I therefore credit their testimony. The weight I afford the exhibits and testimony is reflected in the analysis.

Law and Analysis

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. (See NYS Educ. Law § 4404[1][c]).

Prong I – Free and Appropriate Public Education

The IDEA provides that children with disabilities are entitled to a FAPE. (20 U.S.C. § 1400 [d][1][A]) A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. (See 34 C.F.R. § 300.13) A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. (See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982))

In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)) An IEP that meets the standard for appropriateness will: (1) accurately reflect the results of evaluations used to identify the Student's needs (see Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]) ^[7]; (2) provide for the utilization of sufficient special education services (see, e.g., Application of the Dep't of Educ., Appeal No. 07-018)8; and (3) is then properly implemented. (See 8 NYCRR 200.4[e][7]; see also Application of a Child with a Disability, Appeal No. 08-087) A FAPE has been provided where there is “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 [2d Cir. 2005]) ^[9]; it must be “reasonably calculated to provide some ‘meaningful’ benefit.” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]10)

At the hearing, the Department elected not to present witnesses, and relied upon the exhibits alone to prove there was a FAPE. Courts and the SRO have held that, depending on the record, a FAPE may be demonstrated by an IEP, with the caveat that “[i]deally, if a district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student and the CSE’s recommendations, including prior written notices.” (Application of a Student with a Disability, Appeal No. 23-090 [June 21, 2023], pg. 16 [ftnt. 17]; see also L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 110-11 [2016 Cir. 2016] [a CSE’s failure to document evaluative data leaves reviewing authorities with only speculation as to how the IEP was formulated]) An IEP thus may prove a FAPE when “[s]uch documentation is present . . . and the evidence is sufficient to identify the student’s needs and whether the recommended program and services . . . appropriately addressed those needs.” (Application of a Student with a Disability, Appeal No. 23-090 [June 21, 2023], pg. 16 [ftnt. 17])

A parent or guardian may still challenge the documents relied upon by the DOE. Once the “evidence in the hearing record proffered by the district le[ads] . . . to [a] find[ing] that the IEP adequately addressed the student’s needs[,]” a parent or guardian would then have an opportunity to offer “contrary evidence that would rebut that conclusion.” (See Application of a Student with a Disability, Appeal No. 23-005 [March 13, 2023], a pp. 9 to 10)

8 See also 34 C.F.R. § 300.320(a)(4; 8 NYCRR 200.4(d)(2)(v); Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; and Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

10 See also Rowley, 458 U.S. at 192.

Here, the IEP developed on November 2, 2020, contained necessary information: Present Levels of Performance and Individual Needs; Management Needs; Measurable Annual Goals; Recommended Special Education Programs and Services; Placement Recommendation; and Other Options Considered. The IEP lists evaluative materials that were reviewed by the CSE, and noted findings that the Student’s then-performance in math was at a 5th grade level, while his reading was at a 4th grade level, and his reading comprehension was at a 3rd grade level. (See Ex. 2-1 to 2-2) The IEP also describes his difficulties with attention and focus as a student with Autism. It mentions that he is “distractible” and “ha[s] difficulty with comprehending text” and “difficulty with linear equations” and “some difficulty with historical events.” (See id. at 2-1 to 2-2) The IEP also mentions a 2019 evaluation (the May 22, 2019, psychoeducational evaluation is the only such assessment in evidence), which concluded that the Student had some significant academic weaknesses, including: word reading in the 16th percentile among his peers; reading comprehension in the 14th percentile; a “Total Reading Composite” score in the 12th percentile; basic math fluency in the 10th percentile, subtraction in the 18th percentile; multiplication in the 9th percentile; and spelling in the 12th percentile. (See Ex. III-4 to III-5)

These findings were undisputed, and I conclude that they accurately described the thencurrent present levels of performance when the November 2, 2020, IEP was developed. The goals and program for such challenges, therefore, would need to be clear and supported, as school districts must “offer a cogent and responsive explanation for their decisions” in creating an IEP, because it is “through the IEP that ‘[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” (Endrew F., 137 S.Ct. at 1002) This would be found in an IEP that both accurately reflected the results of evaluations used to identify the Student's needs, (see Tarlowe, supra.) and that provided for the utilization of sufficient special education services (see, e.g., Application of the Dep't of Educ., Appeal No. 07-018)

The IEP here lists specific services that would be provided to the Student, including those that support “support . . . language modalities” such as: “plot[ing] maps [for] identifying story elements and various graphic organizers focusing on summarizing main ideas[,]” (id. at 2-2) and “extra time for completing tasks and taking exams”; “CSR (collaborative strategic reading)”; “learn[ing] key vocabulary”; “brainstorm[ing] prior knowledge of [a] topic”; “summariz[ing] the gist (main idea) of [a] selected reading”; “[t]argeted listening strategies”; and “[r]epetition of . . . steps [to] increase [his] comprehension in English.” (Id. at 2-1 to 2-2) In the IEP’s Management Needs section, the IEP team recommended SLT; OT; counseling services; positive praise and encouragement; flexible seating; breakdown of complex tasks; redirection to task; breaks when needed; extended time for exams; and multi-modal approach with a focus on visual learning. (See id. at 2-7)

While these above recommendations might have adequately addressed the Student’s needs, nowhere in the exhibits does it state or opine that they specifically would have been sufficient, let alone that they would have enabled the Student to benefit academically from them. In Application of a Student with a Disability, Appeal No. 23-090 (June 21, 2023), the SRO, in determining that exhibits demonstrated a FAPE, described how the CSE concluded its program was sufficient for the Student and how it defended its findings. For instance, after listing the student’s deficits and the recommendation of continued supports and services, the “IEP noted that the student was able to function and succeed within his academic environment[.]” (Id. at pg. 20 [emphasis added]) The CSE also had access to a school psychologist’s observation, which included the opinion that “the student demonstrated the ability to access classroom material independently and understand directives and instructions given by the teacher.” (Id. at pg. 4 [emphasis added]) In addition, the DOE’s PWN included the statement that students who entered the recommended program “ha[d] academic skills on or above grade level standards” and that they “were able to work independently with minimal support.” (Id. at pg. 5 [emphasis added]) The parent had also asserted that the CSE did not adequately address the student’s issues with attention and focus and claimed that a 1:1 paraprofessional was necessary. In denying that relief, the SRO noting that the exhibits defended the CSE’s conclusions: “school staff expressed that although the student required redirection and refocusing at times, [this] was manageable with the support of two teachers in the classroom” and “that the support of 1:1 paraprofessional services . . . would hinder the student’s independence and isolate him from his peers.” (Id. at pg. 21)

The exhibits are devoid of any explanation of a nexus between the recommended services and what the Student needed to access the curriculum, as there were in Appeal No. 23-090.^[11] Nowhere does it state that the program would adequately address the Student’s difficulties with academics, or his challenges with attention and focus. There is one, decontextualized and pro forma statement at the end of the PWN that merely says the “recommended services . . . will meet your child’s needs.” I cannot discern, on the exhibits alone, that the services listed by the CSE would have addressed all the Student’s needs. The exhibits, therefore, do not present “a cogent and responsive explanation for the[] decisions” made in creating the IEP, (Endrew F., 137 S.Ct. at 1002), and I deem it insufficient.

I also find the lack of any opinion or conclusion tying the IEP’s 12:1:1 program to the Student’s needs particularly important when, as here, a DOE school psychologist found, in the psychoeducational evaluation relied upon by the IEP team, that the Student made “consistent progress” in previous school years while he attended a specialized 6:1:1 class with a full time paraprofessional. (See IHO Ex. III-1) Thus, without more evidence to defend the program in the subject IEP, I cannot and will not conclude that the exhibits alone prove, by a preponderance of the evidence, that the IEP accurately reflect the results of the Student’s evaluations, (see Tarlowe, supra.) or that it provided sufficient special education services. (See Application of the Dep't of Educ., Appeal No. 07-018) The Department, therefore, did not demonstrate that the IEP was “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)) Prong 1 is decided in the Parent’s favor.

Prong II – Appropriateness of Parent’s Placement

A private school placement must be "proper under the Act." (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985)) This means that the private school must offer an educational program which met the student's special education needs. (See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65))

Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'” (Id.) That said, parents need not show that their chosen placement meets all the FAPE requirements as would a school district, but rather a searching inquiry into the totality of the qualities of the private program that determines its appropriateness. In fact, 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.” (Id.)

Here, the Parent chose to place the Student at the Private School for the 2022-2023 school year. The Private School exists “for children with developmental and cognitive disabilities.” (Ex. K ¶ 7) Each faculty member in its middle school is “certified by New York State and/or ha[s] a Master’s degree or are in the process of completing a Master’s degree” (id. ¶ 12) and all its related service providers are licensed by the State of New York, with at least a Master’s degree in their respective fields, (see id. ¶ 13) who also receive “a significant amount of professional development” and training. (See id. ¶ 14)

Contrary to the Department’s position at the hearing, the evidence shows that the Private School created an individualized program for the Student. The Student’s “teachers and related service providers collaborated frequently on [his] goals and progress[,]” (Id. ¶ 36) and the AHMS met “with his teachers and therapists on a regular basis to discuss his goals and progress[.]” (Id. ¶ 27) They developed a program specifically designed to address his challenges with “maintaining attention, self-regulation, following instructions, and responding appropriately to social cues.” (Id. ¶ 28) The program included “explicit instruction presented in a multi-sensory manner with significant 1:1 support.” (Id.) He was also provided: small classrooms (8:1:1 to 12:2:2) with small group (3:1) instruction for specific skills (see id. ¶ 30); a coding and decoding program used to “support his comprehension and writing skills” (id.); breaking tasks into multiple steps (see id.); “an explicit approach and modeling, guided practice, 1:1 support and review, checklists, sentence starters, extended time, breaks, prompting, hands-on activities, multi-sensory projects, [and] graphic organizers” (id.); SLT to address “his difficulties with receptive and expressive language skills” as well “as verbal prompting, graphic organizers, providing cuing words . . . role playing, using context clues” and “learning how to identify, describe and solve problems.” (Id. ¶ 33) He had a 9:1:1 math class, where he “benefitted from the small group instruction, graphic organizers, color-coded number lines, and teacher modeling.” (Id. ¶ 31) He benefitted from small group instruction that was facilitated by the “teachers, assistant teachers, and paraprofessionals” who had access to “flexible classrooms and breakout room[s]” and “students c[ould] be broken down into smaller groups.” (Id. at pp. 38 to 39)

With the Private School’s supports in place, the Student “made progress in reading fluency and comprehension, sorting, writing, and using words with blends in a sentence” and he “improved in his ability to organize his thoughts, retelling a narrative asking appropriate WH-questions . . . and using new words in sentences,” as well as “improv[ing] his conversation skills[,] such as staying on topic, turn-taking, maintaining conversation, active listening[,] and expressing disagreement in a socially appropriate way.” (See id. ¶¶ 30 and 33) He also “demonstrated progress in his math skills . . . as the year went on.” (Id.) He benefitted from “improved in self-regulation skills and required fewer verbal cues” through his OT services, and he “demonstrated improvement in cognitive flexibility, frustration tolerance, delaying gratification, maintaining personal space, and initiating and maintaining conversation” with his counseling. (Id. ¶¶ 34 to 35)

The improvements in the Student’s academic performance are also reflected in his first and second semester report cards. (See Exs. F and G) Moreover, the Student’s parents agreed that the Private School was the appropriate program for the Student, (see Tr. at pp. 46 to 47) and they “saw the changes . . . the independence and confidence he[ was] building every day” in the middle school program. (Id. at pg. 47)

“[E]vidence of . . . progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.” (Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003)) It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112) Given the degree to which the Student’s diagnoses have caused him to struggle when learning and to be able to learn, and the way in which the program addresses the Student’s deficits and needs, as well as the way it has demonstrably provided him more access to an education, the Private School clearly meets this standard.

The Department Representative contended that the Private School did not offer the least restrictive environment (LRE) and that its program should therefore be deemed not appropriate. Under the IDEA, however, parents and guardians “may not be subject to the same mainstreaming requirements as a school board.” (M.S. ex rel. S.S. v. Board of Educ. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000]) The failure of a private placement to meet the IDEA mainstreaming requirement, therefore, does not bar parental reimbursement. (See Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir. 1998]) Notwithstanding this, “the restrictiveness of a private placement is a factor” for consideration, but “by no means is it dispositive.” (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 [2d Cir. 2014]). Under the circumstances of this case, I find that the restrictiveness of the Private School’s program does not outweigh the above evidence of Prong 2 appropriateness. The Parent Advocate asserted that a child with the level of difficulties faced by the Student would not benefit from a program where he would be educated with mainstream students. I agree, as the only evidence of the Student progressing before he entered the Private School was when he was in a 6:1:1 specialized public placement. (IHO Ex. III-1)

Accordingly, I find that the Private School was appropriate to meet the Student’s needs, (see A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364)) and that Prong II of the Burlington/Carter analysis is satisfied.

Prong III – Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." (Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)) In making that determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. (See 20 U.S.C. § 1412(a)(10)(C)(iii)(III); see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014), and L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017))

Also “[i]mportant to the equitable considerations is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.” (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014)) Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement. (See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011))

Here, the parents cooperated with the CSE during the IEP process, as the Student’s mother attended the November 2, 2020, IEP meeting, (see Ex. 2-34) and there is no claim or evidence that they refused to present the Student for any evaluations or otherwise inhibited the DOE process of developing and recommending a program for the Student for the 2021-2022 school year. They also submitted a timely TDN twice, on August 11, 2021, and then again on August 27, 2021, that contained the requisite information, including their disagreement with the proposed program and a notification that they intended to unilaterally place the Student at the Private School and seek public funding. (See Exs. C and D) The DOE sent the parents a PWN on March 2, 2021, but it did not include a school recommendation; thus, there was no school for the Parent to investigate or contact.

In addition, the Parent acknowledged he is liable for the Private School’s 2021-2022 tuition if the Department were not ordered to fund it. (See Tr. at pg. 48) To the extent he signed the contract on June 24, 2021, (see Ex. H-3) over a month before the first TDN was submitted to the DOE, (see Ex. C) I find that this is not evidence of predetermination. The contract, by its terms, “released [the Parent] . . . without financial penalty . . . should [the Parent] choose to accept a school placement recommended by the New York City Department of Education in a public school . . . . on or before October 31, 2021.”

Finally, there is no evidence of any fraud or collusion, and the Department did not claim or present any evidence regarding the reasonableness of the tuition sought. On this record, I conclude that the balance of the equities supports the Parent and not the DOE. Thus, all three Burlington/Carter Prongs are decided in the Parent’s favor, and an award is warranted in this case.

Remedies

Tuition Funding

By way of relief, the parents seek direct funding to the Private School for the contracted amount of $78,775.00, (see Ex. H-1) as they were unable to pay the tuition due to the Parent’s “earnings [being] heavily impacted by the COVID-19” pandemic and because “inflation ma[d]e the[ir] living costs higher than ever.” (Id. at pp. 47 to 48) Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. (See, e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”)) I have credited the Parent’s testimony, and therefore find that the parents lack the financial resources to pay the Private School, and that equity thus requires payment to be funded directly by the Department to the Private School.

Order

Upon the foregoing, it is hereby, Ordered, that the New York City Department of Education shall make payment to and directly fund the aggregate tuition obligation of $78,775.00, inclusive of tuition and related services, for the 2021-2022 school year, to be paid within 35 days, directly to the Private School.

So Ordered.

Dated: August 10, 2023

Richard J. Zeitler, Jr. (signed electronically)

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

1. Due Process Response 04/13/2023 4 pages DOE

2. Individualized Education Program 11/02/2020 34 pages DOE

3. Prior Written Notice 03/02/2021 4 pages DOE

4. Counseling Services Progress Report 10/28/2020 2 pages DOE

5. Speech and Language Therapy Services Report 10/19/2020 2 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request 03/03/23 4 pages

B. Program Description (undated) 7 pages

C. Ten Day Notice 08/11/21 2 pages

D. Ten Day Notice 08/27/21 2 pages

E. Class Schedule 2021/2022 2 pages

F. Progress Report 02/04/22 22 pages

G. Progress Report 06/17/22 26 pages

H. Enrollment Contract 06/24/21 3 pages

I. Attendance Record 2021/2022 1 page

K. J Remote Learning Information (undated) 6 Affidavit of Testimony 05/11/23 7 pages

IHO EXHIBITS

I. Pre-Hearing Conference Summary and Order 05/03/2023 3 pages IHO

II. Order of Extension 05/25/2023 1 page IHO

III. DOE Psychoeducational Evaluation Report 05/22/2019 7 pages IHO

Footnotes

[5] See Tr. at pp. 49 to 51.

[6] See Tr. at pp. 51 to 52.

[7] See also 34 C.F.R. § 300.320(a)(1) and (2); and 8 NYCRR § 200.4(d)(2)(i) and (iii).

[9] Quoting Walczak, 142 F.3d at 130.

[11] In reviewing the three evaluative documents in evidence that the IEP team had available, I find only a description of the student’s needs and goals, and nothing with respect to how or why any particular supports or services would adequately address those needs. There is an October 28, 2020, counseling report that includes a then-current goal of “improv[ing] focus and ability to stay on task . . . and increase his ability to work more independently” that adds new goals of (1) starting tasks with less prompts and (2) remaining on task. (Ex. 4-1 to 4-2) There is no description as to how those goals would be accomplished, other than a vague reference to “teacher, parent, and related service support.” (Id. at 4-2) The October 19, 2020, SLT is sparser, in that it lists the Student’s speech deficits and then simply refers he reader to the IEP for goals, with nothing about methods to reaching those goals. (See Ex. 5) Finally, the May 24, 2019, psychoeducational report is comprehensive in its explanation of the Student, his performance during the evaluation, and his challenges and needs. (See IHO Ex. III) It then offers nothing, however, with respect to what might be done to address those challenges and needs, stating only that “data will be reviewed at [the Student’s] upcoming Educational Planning Conference in order to determine appropriate recommendations” and that the team should consider “[c]ounseling or social skills” and “[s]tandardized assessment” with testing accommodations. None of this demonstrates what or how supports would allow the Student to access curriculum.