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FINDINGS OF FACT AND DECISION
Case Number: 247309
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: N.Y.C. Dept. of Education
Service District: [REDACTED]
Home District: REDACTED]
Date of Filing: 04/04/2023
Hearing Requested by: Parent
Hearing Dates: 06/12/2023
06/23/2023 Actual Record Closed Date: 08/10/2023
Date of Decision: 08/11/2023
Date of Distribution: 08/11/2023
Impartial Hearing Officer: Patricia Peña, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/13/2023
For Student and Parent:
[REDACTED] Parent’s Representative
Witnesses [REDACTED], School Psychologist and Leaning Specialist
For the Department of Education:
[REDACTED], District Representative
Witnesses
[REDACTED], Social Worker
[REDACTED], School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/23/2023
For Student and Parent:
[REDACTED], Parent’s Representative
Witnesses [REDACTED], Parent
For the Department of Education:
[REDACTED], District Representative
Witnesses
[REDACTED], IEP Teacher
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 04/04/2023 by Parent, through counsel on behalf of Student, against the New York City Department of Education (“DOE” or “District”). I was appointed as the IHO on 04/05/2023. On 05/08/2023, a pre-hearing conference was held via WebEx. At the conference, both parties were represented by counsel and stated the following: (1) a resolution meeting was not held in this case; (2) DOE filed a response to the DPC on or about 04/25/2023; (3) generally, case involved a Child Find issue and a failure conduct timely evaluations. DOE stated it was still investigating the matter but stated that with respect to the referral to evaluate Student, DOE did not receive a referral to evaluate Student until January 2023. 1 A due process hearing was held virtually on 06/12/2023 and on 06/23/2023. Parent was represented by [REDACTED] and [REDACTED] represented DOE. DOE submitted exhibits 1 through 8 into evidence without objection[2] and called three witnesses: Social Worker, [REDACTED]; School Psychologist, REDCATED; and IEP Teacher, [REDACTED]. Parent submitted exhibits A through P into evidence without objection[3] and called two witnesses: School Psychologist and Learning Specialist of the Lower School at [REDACTED] School, [REDACTED], and Parent. Both parties made opening statements and submitted written closing briefs.
In its opening statement, DOE argued that although Student was performing below grade level, it was not to such degree that she required special education services. While in attendance at the Public School, Student received services in reading and writing.[4] DOE maintains that following receipt of Parent’s request to evaluate Student, DOE held an initial IEP meeting, provided prior written notice, and offered Student a placement that could implement the March 2023 IEP. 5 The IEP contains goals that are uniquely tailored to address Student’s needs and enable her to make meaningful progress.[6] As such, DOE contends, Student was offered a free and appropriate public education (“FAPE”) for the 2022-2023 school year.
In its opening statement, Parent contended that during the 2021- 2022 school year, it became apparent that Student was unable to keep up academically with her peers.[7] A recent evaluation revealed that Student had a learning disability in reading and ADHD.[8] Parent maintains that DOE failed to meet its Child Find obligations by failing to identify, evaluate and provide services to Student within the statutorily required timeframe. Parent contends that it made at least two explicit referrals on August 29, 2022, and on September 12, 2022, and that DOE did not evaluate Student or hold an IEP meeting until March 2023. [9]
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.[5] et seq.
BACKGROUND
Student is a [REDACTED]-year-old Student enrolled in the 4th grade for the 2022-2023 school year. In its DPC, Parent asserts that Student attended public school from pre-kindergarten to through the third grade. Prior to unilaterally placing Student in Private School, during the 2021-2022 school year, as in the prior years, Student struggled academically.[10] Student “exhibited weaknesses in reading and writing showed poor decoding and comprehension skills and became avoidant of tasks that required reading. Her spelling and penmanship were poor, and increasingly lagged behind peers.”[11] Parent asserts that she consistently asked the Public School for assistance and additional support for her child, but her concerns were not taken seriously.[12] Out of continued concern for Student’s academic struggles, Parent had Student evaluated through a research study and received a diagnosis of ADHD and Specific Learning Disorders in Reading and Written Expression. 13 On August 29, 2022, Parent informed DOE of Student’s diagnosis and requested that DOE develop an IEP for Student.[14] DOE did not respond to Parent’ request. Parent subsequently had Student evaluated to assess Student’s cognitive and academic levels of functioning. The evaluator confirmed Student’s diagnosis and found that Student was significantly more delayed than her grades reflected and was two years behind in reading.[15] Parent provided DOE with a copy of the independent psychological evaluation in January 2023 which then prompted DOE to commence the evaluation process.[16] On March [13], 2023, the CSE convened and classified Student with a learning disability. The CSE recommended an ICT class for core academic subjects, five periods a week for SETSS for ELA, three sessions per week of speech language therapy and recommended placement at Student’s former school.[17] Parent contends that the program and placement offered by DOE were inappropriate to meet Student’s needs. Parent filed the instant action alleging a denial of FAPE for the 2022-2023 school year on procedural and substantive grounds.
ISSUE
Whether DOE failed to discharge its obligations under Child Find and as a result denied Student a FAPE for the 2022-2023 school year.
By way of relief, Parent seeks a declaration that (1) DOE failed to provide Student with a FAPE for the 2022-2023 school year; (2) the Private School was an appropriate unilateral placement; and (3) Parent is entitled to an award of full tuition reimbursement.[18] In light of the foregoing and as more fully discussed below, I find that a) DOE failed to meet its burden that it offered Student a FAPE for the 2022-2023 school year, b) the Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and c) the equities support Parent’s requested relief.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Amongst the documents offered into evidence by the District, was the 03/13/2023 IEP. The IEP incorporates the privately obtained psychological evaluation wherein the evaluator indicates that Student’s overall FISQ score was in the average range.[19] Academically, Student presented writing where her scores fell within that of a 2nd grader.[20] The evaluator stated that many of Student’s difficulties stemmed from the fact that she could not read many of the words within the passages she was asked to read.[21] Student’s spelling was “very poor.” Student reversed letters, struggled with writing words, placed letters where they did not belong, and made many spelling errors.[22] Student performed better in math but still exhibited deficits and struggled with math problem solving skills.[23] The evaluator surmised that given Student’s excellent language skills, one would expect her reading and writing would, at least, be within average range and opined that Student’s presentation was consistent with Dyslexia.[24] The evaluator made a series of recommendations including: placement in a small, highly specialized school for children with language based learning disabilities, a low student to teacher class ratio alongside peers of similar cognitive and academic abilities, with highly individualized instruction using a multisensory approach to learning. [25]
The School Psychologist testified that she sat in on Student’s initial IEP meeting.[26] Student’s memory was an area of weakness.[27] Student performed on grade level in math.[28] Student’s IQ fell within expectation.[29] The CSE recommended an ICT class for 5 periods per week because this was the first time that Student was going to receive “consistent and continuous intervention” and the District needed to see if the intervention works before recommending a more specialized classroom, this is not appropriate for Student because it’s too restrictive.[31] The witness testified that overall, the ICT class with SETSS and speech-language therapy was appropriate for Student because Student is a “bright” Student with areas of weakness. 32 She testified that they wanted to provide Student with needed assistance in the least restrictive environment. [33]
On cross examination, the School Psychologist testified that there was no reason to conduct educational testing of Student or a speech and language evaluation because Student had been recently evaluated.[34] She did not speak anyone from Student’s prior DOE school or review Student’s report cards from DOE schools. The CSE relied on the private neuro psych to develop Student’s IEP.[35] The School Psychologist testified that Student received academic intervention last year but inconsistently.[36] Further, an ICT class typically holds anywhere from 25 to [32] students.[37] She testified that Parent voiced concerns about ICT class being too large considering that the time, Student was in a class of up to 12 Students.[38] SETSS services could be held in a group of up to 8 students.[39] The School Psychologist testified that a multisensory approach to learning entails a lot of different things and is within the toolbox of what the teacher in the classroom is able to do.[40] An occupational therapy evaluation was not conducted as part of the IEP process because it was not identified as an area of need.[41] Had Parent raised this as a concern, she
30 Tr. 25-26 Psychologist testified that there is nothing in between an ICT class and a 12:1+1 within the continuum of services offered by DOE.[43] In the ICT class, provision of SETSS services depends on the provider, working in conjunction with the special education teacher and could be inside the classroom or as pull out. [44]
The School Social Worker testified that she became familiar with Student after receiving an initial request from Parent to evaluate Student for special education services in January 2023. [45] Upon receipt of the request, Social Worker opened an initial referral and started the process of scheduling a social history meeting.[46] At that point, they would have reviewed the private evaluation received with the initial referral to determine if additional testing was necessary.[47] The CSE has 10 days upon date of referral to act on that referral.[48] The Social Worker testified that the September 12, 2022 email with the report would have triggered DOE’s obligation to evaluate Student.[49] Regarding the August 29, 2022 letter, the Social Worker testified that the letter would not necessarily be construed as a request to evaluate Student but would trigger contacting the Parent.[50] To her knowledge, Parent was not contacted following receipt of this letter.[51] Had the letter informed DOE that Student had been diagnosed with a learning disorder, this would trigger DOE’s obligation to start an initial evaluation.[52] Upon clarification, regarding whether an email
42 Tr. 51 language making a request of some sort would trigger an evaluation although they review everything. 53
The IEP Teacher testified that for the 2022-2023 school year, there was a seat available for Student in the 4th grade ICT class and within the SETSS program that could have implemented Student’s IEP recommendations. 54 She testified that Students with IEPs are grouped based on their academic and social emotional needs. Students are then grouped within the classroom based on their IEP recommendation, age range, functional levels in math, reading, writing, and social emotional abilities.[55] Academic instruction is differentiated for students with IEPs and teachers modify work to meet the needs of the students. At the time, the Public School had a multisensory reading approach.[56] During the 2021-2022 school year, the Public School implemented various strategies to help Student with her difficulties in reading and writing. These strategies included Orthon-Gillingham small group instruction provided by the teacher and Academic Intervention Services from November 23, 2021, to June 2022.[57] On November 18, 2021, at Parent’ request, an OT screening was conducted, and a series of pre-referral interventions was recommended and provided. [58]
On cross examination, the IEP Teacher testified that she provides SETSS, small group instruction and at-risk intervention. Regarding the difference in terms of content between the two, she testified that small group intervention is based on the needs of the students. For example, if a
53 Tr. 77-78 54
student needs help in decoding skills, the at-risk teachers will teach decoding skills. SETSS services focuses more on Student’s individualized IEP goals.[59] Normally, it is the classroom teacher who flags a student for academic intervention support but now with the screeners, the school reviews the data and determines which students are in need of support.[60] Screenings are conducted three times a year; beginning of October, January, and May.[61] A student needs to be two to three years below grade level for the screener to trigger at risk intervention services.[62] A Student who is less than two years below grade level could receive afterschool support. [63] Regarding the November 12, 2021 email wherein Parent requests an OT screening, the IEP teacher testified that she is not aware if the school did any type of testing in response to the email. If a student is suspected of having a disability, the school provides academic support before doing any evaluations.[64] A student would have to go through a 3 Tier support system before being referred for an evaluation and would depend on the level of progress made.[65] She explained that Tier 1 support is classroom intervention, Tier 2 support is the form of pull out support and Tier 3 is small group instruction, usually with one to two students and one teacher providing intervention.[66] Within the Tier support system, it is recommended that students receive at least 3 months of Tier 2 support before a student advances to Tier 3 support and if progress is minimal, this would be cause for concern.[67] The IEP Teacher was not sure if Student received Tier 1 support and does not believe Student received Tier 3 support.[68] She does not know how frequent Student received that if a Student does not move up to a Tier 3, this means that Student was making progress within tier 2.[70] The IEP Teacher spoke to Student’s 3rd grade teacher and that the teacher did not feel as thought Student was very far below grade level or that she was struggling much. [71]
In support of Parent’s case, Parent testified that she first noticed Student’s struggles in the first grade. Student struggled with reading and writing skills early on.[72] At the time, Student was in an ICT class by happenstance. Parent testified that they spent a lot of time with Student after school helping Student with homework. They tried to get Student evaluated but because of the pandemic, the evaluation was cancelled.[73] During the pandemic, Student attended school on a hybrid schedule with grades were pass/fail. Parent believes this disguised Student’s struggles. During the 2021-2022 school year, Student started the third grade and as in prior years continued to struggle. Student was failing a lot of her tests and getting 2’s. Parent also had concerns about Student’s ability to sustain attention; she was disorganized, distracted, and required frequent reminders and prompts to remain on task.[74] Parent testified that she asked Public School for academic intervention early on in the school year, was initially denied but and after numerous requests, the request was approved.[75] The academic intervention Student received was sporadic. Parent was not looped into the progress, if any, Student was making and when she did inquire, the reports were “always vague.” [76]
69 Tr. 127-128
On cross examination, Parent testified that she signed a contract with the Private School on August 29, 2022.[77] Parent is familiar with the Private School (PS) by virtue of working in the field as a school psychologist. Parent testified that after DOE recommended the ICT class, she contacted the Public School to see what was available, but the school never responded.[78] Parent thought the ICT class was too large a class for her daughter as she was previously in a class of 32 students where she was “overlooked and struggled.”[79] On redirect, Parent testified that she asked for an IEP meeting in August when she received the results of the healthy brain report. She testified that she did not know what to do. The school kept telling her to get her daughter’s eyes checked and meanwhile there was nothing wrong with her eyes, she just couldn’t read the letters. [80]
The PS Witness testified that the Private School is an independent, progressive, not for profit school serving grades Kindergarten through Twelve grade.[81] The Private School has two additional programs aside from the mainstream program. These programs are designed to support students with learning disabilities.[82] The AP Program “was developed to target the areas of concern with small class size in order to minimize distractions and increase focus, appropriately paced, and individualized instruction. By creating an individualized program that challenges students without overwhelming them, students develop increased confidence and stronger self-efficacy, increasing their motivation, and efforts to succeed.”[83] During the 2022-2023 school year, the lower program of the Private School had approximately 75 students; five students including Student were enrolled in the 4th grade.[84] The PS Witness testified that Student’s “program was designed to address her diagnoses as discussed further in her program description document. These challenges necessitated that [Student] receive extensive and intensive academic supports, and related services to reach her potential and keep pace with her peers.”[85] Student was in a class of 15 students for science, social studies, physical education, and art; in Math, she was in a class of 12 students; and in reading and writing, Student was in a smaller group setting of five students including Student with modified instruction.[86] The PS Witness testified that Student’s reading classes aggressively targeted Student’s decoding, phonemic awareness skills, and blending sounds using Orton-Gillingham multisensory approach, as well as work in encoding and reading comprehension.[87] She testified that “[a]t the beginning of the school year, [Student] was reading at a Fountas and Pinnell Level L (mid second grade), averaging 54 words per minute. By the end of the year she was able to read independently at a Fountas and Pinnell Level O (mid third grade), averaging 73 words per minute, which for Michaela demonstrated significant progress.” She does not believe an ICT class setting is appropriate for Student based on the large class size, student composition, and fewer supports the class setting offers.[88] On cross examination, The PS Witness testified that although Student is in an ungraded program, they do administer tests and students do receive grades for tests. [89]
ANALYSIS
Burden
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 burden of production on the appropriateness of such placement. [90]
Prong I
The IDEA provides that children with disabilities are entitled to a FAPE.[91] 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.[92] 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 Student to receive educational benefits.[93] 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.” [94]
Child Find
Under the IDEA, states and local educational agencies who receive federal funds have an obligation under the “child find” provisions to “identify, locate, and evaluate students who are suspected of having 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.”[95] This mandate extends to “children with disabilities who are enrolled by their Parent in by the [local educational] agency.”[96] This is an ongoing, affirmative duty to ensure that students receive needed special education services,[97] even though they are advancing from grade to grade." [98]
To satisfy its child find requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children.[99] The U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS) issued some guidance to State educational agencies and local educational agencies regarding its child find obligations. Examples of ways in which a local educational agency can undertake its obligation to locate, identify, and evaluate children is by holding professional development sessions for private school teachers regarding the IDEA’s evaluation and reevaluation criteria, posting flyers at the private schools and facilitating round table discussions with community members. [100]
The child find duty is triggered when a district “has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.”[101] A child find violation occurs when the district overlooks clear signs of disability and a) is negligent by failing to order testing or b) has no rational justification for the decision not to evaluate the the IDEA.[103] A violation of FAPE can also occur when a parent requests that the district evaluate a child for purposes to making FAPE available to the child and the district failed to do so.[104] Further, when a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. [105]
In its closing statement, DOE contends that it complied with its Child Find duties. In general, following the pandemic, students experienced academic delays but in November 2021 when Parent requested an OT screening, RTI, and/or academic intervention, the Public School implemented a remediation strategy. Therefore, DOE “did not overlook any clear signs of disability, was not negligent in ordering testing, and had a rational justification not to evaluate Student.”[106] I disagree and find that the District was negligent in failing to identify and evaluate Student, resulting in a denial of FAPE.
While it is true that the District provided Student with academic support, this was only done after Parent repeatedly asked the Public School for assistance. School districts are required to have procedures in place to identify, locate, and evaluate students suspected of having a disability. In this case, the Public School used screeners or a referral from the classroom teacher to flag students in need of academic support. Once flagged, students would go through a Tier
102 Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing, Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting, Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225. academic intervention using the screeners is only triggered when a student is two to three years behind grade level or when flagged by a teacher at their discretion, is concerning and questionable whether this procedure satisfies a school district’s Child Find obligations. Under this procedure, by the time a student is referred for an evaluation, that student could be three to four years behind grade level. Further, there is no evidence that Student received Tier 1 support or Tier 2 support on a consistent basis. The record shows that Student received Tier 2 support for approximately 7 months (November 2021 through June 2022). There is no evidence regarding the frequency with which Student received theses services but based on the testimony, the services were appear to have been infrequent.[107] There is also no evidence of Student’s functioning levels at the start of the academic intervention or of the progress, if any, that Student made with these services but based on the evaluations obtained by Parent showing that Student was two years behind in reading, one can infer that Student made minimal progress, if any, while receiving academic intervention at the Public School.
Further, it is well settled that a District’s Child Find obligation is an affirmative duty and not the parent’s responsibility to ensure that a child be evaluated. Here, Parent made several attempts to alert the District of Student’s suspected disability. The first documented request is an email dated November 12, 2021, from Parent to an individual at the Public School wherein she asks for an OT screening and RTI supports.[108] The email also indicates that she believes that Student might have a learning disability.[109] I find that this email constitutes a referral for evaluation under the regulations, requiring the District to evaluate Student to determine the Student’s eligibility for special education program and services.[110] Upon receipt of this letter, the District had 60 school days to conduct the necessary evaluations, convene an IEP meeting, and make a recommendation regarding the Student’s eligibility for services.[111] The District did not do this and waited until January 23, 2023, over a year since the initial email, before commencing the evaluation process, ultimately classifying Student with a learning disability. In sum, I find that the District failed in its Child Find obligations resulting in a denial of FAPE.
Prong II
A private school placement must be “proper under the Act.”[112] This means that the private school must offer an educational program which met Student’s special education needs.[113] Parent seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. 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 Parent’s placement.’” [114]
Parent need not show that the placement provides every special service necessary to maximize Student’s potential.[115] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the instruction specially designed to meet the unique needs of a student. [117]
The Second Circuit has set forth the standard for determining whether Parent have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether Parent’ 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, Parent 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. [118]
I find that Parent met its burden in proving that the Private School offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. In its closing brief, DOE argued that Parent failed to show that the Private School is appropriate and uniquely tailored to meet Student’s needs.[119] DOE contends that the program Student is in at the Private School is a general education program without a traditional grade system.[120] The fact that the
116
Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 placement inappropriate. Parent only need to 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.[121] The evidence shows that the Private School provided a small setting, small classes, individualized, multisensory instruction geared towards students with language-based learning disabilities. The evidence also shows that Student made progress this year. In the area of reading for example, which is Student’s greatest area of weakness, Student, a fourth grader during the 2022-2023 school year, started the school year reading at a mid-second grade level and by the end of the school year, Student was reading independently at a mid-third grade level. In sum, I find that the evidence establishes that Student’s special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [122]
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.”[123] In making that equitable 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 Parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether Parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or arrangement with the school was fraudulent or collusive in any other respect. [124]
Here, on August 29, 2022, Parent provided the necessary Ten-Days’ Notice and noted her concerns with DOE’s offer of FAPE for Student for the 2022-2023 school year.[125] Therein, Parent detailed specific concerns, in particular, their belief that DOE had failed in their Child Find obligations.[126] There is no evidence that DOE responded to this notice until January 2023 when it started the evaluation process.
By way of relief, Parent seeks tuition reimbursement. Parent signed a contract with the Private School on 8/29/2022 in the amount of $43,900.[127] Pursuant to the terms of the contract, Parent could withdraw Student from the Private School by September 30, 2022 or be liable for the full enrollment contract.[128] The record shows that Student attended public school up until the 2022-2023 school year and that after receiving a school location letter for the same school that ignored her repeated pleas for help, Parent contacted the school to inquire about the recommended program but did not receive a response. I find that there is no evidence that Parent in any way obstructed DOE from its Child Find obligations or in any way hindered the CSE’s efforts to conduct any necessary evaluations or hold a timely IEP meeting. Therefore, I find that the equities favor Parent and an award for tuition reimbursement.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, I HEREBY FIND: (1) DOE failed to provide Student with a FAPE for the 2022-2023 school year.
(2) The Private School is an appropriate placement for Student for the 2022-2023 school year.
(3) The equities favor an award of tuition reimbursement for the 2022-2023 school year.
IT IS THEREFORE ORDERED, (1) Parent’s claim for tuition reimbursement for placement at the Private School is GRANTED for the 2022-2023 school year in the amount of $43,900.
(2) The District shall reimburse Parent for the cost of tuition at the Private School as described above within 35 days of the date of this order.
SO ORDERED.
Dated: 08/11/2023
Patricia Peña, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, 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. Exhibit DESCRIPTION DATE PAGES Initial Referral 01/23/2023 1 page DOE
2. Consents 02/01/2023 4 pages DOE
3. Classroom Observation 02/09/2023 2 pages DOE
4. Speech Evaluation Scores 09/19/2022 1 page DOE
5. IEP 03/13/2023 30 pages DOE
6. Prior Written Notice 03/20/2023 8 pages DOE
7. Report Card 2022-2023 22-23 4 pages DOE
8. Psychological Evaluation 01/04/2022 17 pages DOE
9. [REDACTED] Affidavit 06/16/2023 4 pages DOE
PARENT EVIDENCE
P-A. Exhibit Description Date Pages Impartial Hearing Request 4/4/23 8 pages
P-B. Ten Day Notice 8/29/22 2 pages
P-C. Response to Ten Day Notice P-D. **Withdrawn** 9/19/22 1 page
P-E. Enrollment Contract 22-23 school year 3 pages
P-F. Tuition Affidavit 22-23 school year 1 page
P-G. Program Description 22-23 school year 3 pages
P-H. Class Schedule 22-23 school year 1 page
P-I. Progress Reports 22-23 school year 8 pages
P-J. Attendance 22-23 school year 1 page
P-K. Speech and Language Therapy Report 22-23 school year 1 page
P-L. Affidavit of [REDACTED] 6/5/23 8 pages
P-M. Affidavit of [REDACTED] 6/5/23 9 pages
P-N. November 12, 2021, Email 11/12/21 1 page
P-O. September 12, 2022, Email 9/12/22 1 page
P-P. Healthy Brain Network Report Spring-Summer 2022 38 pages
IHO EXHIBIT
1. Pre-Hearing Conference Summary and Order 03/13/2023 9 pages IHO
2. DOE Statement 07/21/2023 10 pages IHO
3. Parent Closing Statement 07/21/2023 15 pages IHO
Footnotes
[2] Tr. 8; Tr. 64
[3] Parent withdrew exhibit D because it was already in evidence as DOE exhibit 8.
[4] Tr. 14
[5] Tr. 15
[6] Tr. 15
[7] Tr. 16
[8] Tr. 17
[9] Id.
[10] Parent’ A 3
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at A4
[18] IHO 3, Page 15
[19] DOE 8-14 with significant delays in many of her academic skills, in particular, in the area of reading and
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 8-15
[24] Id.
[25] Id. at 8-16
[26] Tr. 22
[27] Tr. 23
[28] Tr. 23-24
[29] Tr. 24 restrictive class setting. 30 She testified that while the neuropsychologist recommended a small,
[31] Tr.27
[32] Tr. 29
[33] Tr. 29
[34] Tr. 30; 43; 52
[35] Tr. 34
[36] Tr. 45
[37] Tr. 46
[38] Tr. 47
[39] Tr. 49
[40] Tr. 49
[41] Tr. 50 would have asked Parent to provide a doctor’s note prescribing the request. 42 The School
[43] Tr. 53
[44] Tr. 54
[45] Tr. 58
[46] Tr. 59
[47] Tr. 60
[48] Tr. 60
[49] Tr. 67
[50] Tr. 70
[51] Id.
[52] Tr. 70 must contain specific language to trigger an initial referral, the Social Worker testified that
[55] Id.
[56] Id.
[57] Id. at 9-3
[58] Id.
[59] Tr. 112
[60] Tr. 114- 115
[61] Tr. 115
[62] Tr. 115, 116
[63] Tr. 116-117
[64] Tr. 122
[65] Id.
[66] Id.
[67] Tr. 123
[68] Tr. 124 academic support or whether Student showed any progress. 69 On redirect, the IEP teacher testified
[70] Tr. 141
[71] Id.
[72] Parent’ M-2
[73] Id.
[74] Id.
[75] Id. at M-3
[76] Id.
[77] Tr. 147
[78] Tr. 149
[79] Id. at 151
[80] Tr. 153
[81] Parent’ L-2
[82] Id.
[83] Id.
[84] Id. at L-3 of Specific Learning Disorder in reading and written expression, as well as AD/HD Inattentive Type,
[85] Id. at L-4
[86] Id.; Tr. 92
[87] Id. at L-5
[88] Id. at L-8
[89] Tr. 86 seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [SDNY 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. 2010]; and 20 U.S.C. § 1412 [a] [3] [A]; 34 CFR § 300.111; 8 NYCRR § 200.2 [a] [1] and [7].
[90] NYS Educ. Law § 4404(1)(c).
[91] 20 U.S.C. § 1400 [d] [1] [A]
[92] 34 C.F.R. § 300.13
[93] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]
[94] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]
[95] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing Handberry v. Thompson, 446 F.3d 335, 347-348 private, religious, elementary schools and secondary schools located in the school district served 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001].
[96] J.S.v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635 [SDNY 2011].
[97] Forest Grove, 557 U.S. 230 [2007] K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [SDNY 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a] [10] [A] [ii]; see also 8 NYCRR§ 200.2[a] [1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 fn.13 [NDNY 2004]; and 20 U.S.C. § 1412[a] [3]; 34 CFR§ 300.111[a] [1] [i].
[98] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]; and 34 CFR§ 300.111[c] [1]; see 8 NYCRR§ 200.2 [a] [1] and [7].
[99] 34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7].
[100] OSEP Guidance on Child Find Requirements for Privately Placed Students, 80 IDELR 197 (February 2022).
[101] J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 660 [SDNY 2011]; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at student. 102 A school's failure to comply with child find may constitute a procedural violation of
[103] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); and D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 5th Cir. 2010.
[104] See J.S.v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635 [SDNY 2011] (finding that Parent’ written request to evaluate the student creates an obligation on the district to evaluate the student and determine eligibility); see also, OSEP Guidance on Child Find Requirements for Privately Placed Students, Page 5, 80 IDELR 197 (February 2022).
[105] Forest Grove School Dist. v. T.A., 557 U.S. 230
[106] IHO 2, Page 3 system of academic intervention before a referral for evaluation would be considered. The fact that
[107] Tr. 45; Parent’s M-3
[108] Parent’ N-1
[109] Id.
[110] 8 NYCRR 200.4(a)(1)(i)
[111] 8 NYCRR 200.4(d)
[112] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. Of Burlington v. Depot of Educ., 471 U.S. 359, 370 [1985].
[113] 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].
[114] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]
[115] Frank G., 459 F.3d at 364-65 child to receive educational benefits.” 116 A private placement is appropriate if it provides
[117] 20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a)[1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014].
[118] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65
[119] IHO 2, Page 8
[120] IHO 2, Page 8 program Student is enrolled is does not have a traditional grading system does not make the
[121] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65
[122] Frank G., 459 F.3d at 364
[123] Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 [2009] collusion in generating (or inflating) the tuition to be charged to the Department, or whether the
[124] E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[125] Parent’ B-2
[126] Id.
[127] Parent’ E
[128] Id.