NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 598377 - NYC: 247418
FINDINGS OF FACT AND DECISION
Student's Name: 1 [REDACTED] ("student")
Date of Birth: [REDACTED]
School District: NYC #[REDACTED]
Hearing Requested by: [REDACTED] ("Parent")
Request Date/Date Complaint Filed: 04/13/2023
Date(s) of Hearing: 7/17/2023 and 8/15/2023
Actual Record Closed Date: 08/24/2023
Date of Decision: 08/25/2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
1 Personally identifiable information is attached as Appendix B, "Redaction Identification Page," to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/17/23
For the Student:
[REDACTED] ("Parent Advocate"), [REDACTED] ("Parent"), [REDACTED] ("Private School Director")
For the Department of Education:
[REDACTED] ("DOE Representative")
NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/15/23
For the Student:
[REDACTED] ("Parent Advocate"), [REDACTED] ("Parent")
For the Department of Education:
[REDACTED] ("DOE Representative")
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on April 13, 2023. (Ex. A).[2] In the DPC, Parent alleges that the Department of Education ("DOE") failed to offer the student a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act of 1973 ("504") for the 2022-23 school year. (Ex. A). Parent has unilaterally placed the student in a private school ("Private School") and is seeking reimbursement of tuition at the Private School for the 10-month school year. (Ex. A-3; Tr. 17, 21). [3]
I was appointed on April 14, 2023. On April 26, 2023, the district submitted a due process response ("DPR") indicating the program that was recommended at the March 30, 2022, CSE meeting, what materials that recommendation was based on, and their belief that the recommended placement was "reasonably calculated to enable the child to obtain meaningful educational benefits." (Ex. ii).[4] On May 15, the parties appeared virtually for a pre-hearing conference ("PHC"). At the PHC, the parties advised that they were exploring settlement but that the DOE had not concluded its investigation. (See PHC Transcript). Pendency was raised[5] in this matter (Ex. A-1) but the parties advised at the PHC that pendency had been resolved by agreement. (Id.). On June 12 a status conference was held, during which the parties stated that the matter had not been recommended for settlement. (See SC Transcript 6.12.23). At that time, the parties jointly requested and were granted an extension for witness availability and a hearing date was set. (Id.; Order of Extension).
A virtual hearing was held on July 17 and August 15, 2023.[6] It was a closed hearing. Parent Advocate, Parent, and the DOE Representative were all present for both hearing dates. At the DPH, the DOE entered ten exhibits (Ex. 1-10) into evidence and called no witnesses.[7] Parent entered into evidence twelve exhibits (Ex. A-L)[8] and presented testimony from two witnesses: the Private School Director 9 and Parent. (Tr. 12-14, 23). Both parties made oral opening statements on the record. (Tr. 17-21). On the first day of hearing the parties' exhibits were entered into evidence and Parent Advocate presented her two witnesses. Neither party rested their case at that time. (Tr. 78). At the end of the first hearing date, the parties jointly requested and were granted an extension for witness availability and to complete the hearing. (Tr. 79; Order of Extension2).
On July 17 (the same day as the first part of the hearing), the undersigned emailed the parties directing Parent Advocate to submit an additional document 10 that had been discussed during testimony, to complete the record. (See Hearing Orders Emails). The parties were also directed to address whether the substantive appropriateness of the IEP was timely raised in the DPC 11 or whether the DOE had opened the door to it at the hearing. (Id.). The parties were advised that they could submit written memoranda of law until August 11 or could submit case law by email in advance of the hearing. (Id.). A reminder email about this issue was sent to the parties on August 14. (Id.). DOE Representative objected to the expansion of issues in consideration and submitted case law by email on August 14. (DOE Scope of Issues Email). Parent Advocate did not respond by email or submit any legal support in opposition to the district's position. At the start of day two of the hearing, the parties made arguments on the record regarding the scope of issues. (Tr. 84-90). Parent Advocate argued that the boilerplate language in the DPC was sufficient to raise the issue of the substantive appropriateness of the IEP, but they did not specifically address the concern that the only factual allegations alleged were a failure to develop any IEP (at all) or recommend any program. (Tr. 87, 89-90, 102). Based on the parties' arguments and review of the DPC and procedural history of the case, the IHO advised the parties that the DPC did not appropriately raise any specific allegations regarding the substantive inappropriateness of the IEP and thus it was not a live issue in dispute. (Tr. 87-88, 90). Parent Advocate noted their objection for the record but did not request to present additional testimony nor did they request an opportunity to amend the complaint. (Tr. 90). The record was closed on August 24, after receipt of the hearing transcript. 12
9 She testified by affidavit (Ex. L) and live cross-examination. She has a bachelor's degree in special education and a master's in educational leadership, as well as certifications in special education, supervisor, and principal. (Ex. L-1). She is the director of the Private School's kindergarten through eighth grade program. (Ex. L-1-2). She did not teach the student directly. (Tr. 26). Although she testified that she has observed all the students, she could not say how many times she observed this student in particular and she stated that her observations were more directed towards the teachers and staff. (Tr. 26). 10 Parent Advocate submitted the document on August 15, and it is included in the record as IHO Exhibit i. 11 As noted in this email, "The only specific allegations of deficiencies made in the DPC were the failure to timely and fully evaluate the student, and the failure to develop an IEP or make any program recommendation for the school year at issue. The DPC also contains boilerplate language regarding a reservation of rights to challenge the appropriateness of any alleged placement, but the DPC was never amended to include specific allegations of that nature. During our June[12] status conference, I advised the parties that any issues for the hearing would be limited to the allegations in the DPC. However, during their opening statement, Parent's Advocate alleged (I believe for the first time) that the IEP was inappropriate because the student needs a small class and individual attention. Furthermore, the Parent testified that she participated in a 3/30/22 IEP meeting and received the IEP and school location letter. So, the Parent should have been aware of any alleged deficiencies at the time the DPC was filed. Accordingly, I would like the parties to address whether the boilerplate language in the DPC was sufficient to appropriately and timely raised those issues and/or whether the DOE opened the door to them at the hearing. I would also like the parties to provide legal support for their arguments." (See Hearing Orders Emails).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504, 13 29 U.S.C. §794(a). [14]
BACKGROUND
During the 2022-23 school year, the student was in the fifth grade and classified as a student with a Learning Disability. (Ex. 6-1; L-3). The student has been medically diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), Anxiety, and Specific Learning Disorders with Impairments in Reading, Written Expression, and Mathematics. (Ex. 1-8; 3-1; 6-2). The student takes medication for anxiety and attentional issues. (Ex. 2-1). On March 30, 2022, the DOE held a meeting of the committee on special education ("CSE") to develop an individualized education program ("IEP") for the student, which was designed to be implemented at the start of the 2022-23 school year. (Ex. 6-1). On August 26, 2022, Parent sent the DOE a Ten-Day Notice, informing of their intention to enroll the student in the Private School and seek public funding for the 2022-23 school year. (Ex. D).[15] The student was unilaterally placed at the Private School for the 2022-23 school year, for which Parent seeks reimbursement. (Ex. A-3; Tr. 17, 21).
ISSUES
As discussed in the Analysis section below, the only issues timely raised in the DPC were a denial of a FAPE based on the failure to timely and fully evaluate the student or to hold an annual review meeting and develop an IEP for the school year at issue. (Ex. A-2).[16] At hearing, Parent Advocate argued for the first time that the IEP was inappropriate because the student needs a small class and individual attention. (Tr. 21). As discussed below, the substantive appropriateness of the IEP was not timely raised and is not proper for consideration here. Additionally, although the DPC does not
13 The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf. Although the DPC alleges claims under both the IDEA and 504, Parent Advocate stated at the hearing only that the case was being brought under the IDEA and did not mention 504. (Tr. 101-102). specify how the student's evaluations were deficient, at the hearing Parent Advocate argued that the district should have conducted occupational therapy ("OT")[17] evaluation. (Tr. 20-21).
All three Prongs of the Burlington/Carter analysis remain at issue. Parent alleges that the student was denied a FAPE, that the Private School is an appropriate unilateral placement, and that reimbursement is appropriate. (Tr. 102, 105-107). The DOE has argued that they offered the student a FAPE because they timely developed an IEP, that it was based on sufficient evaluative data, and that Parent actively participated in the CSE meeting. (Tr. 95-97). They further argued that even if I were to find a procedural violation from the failure to conduct an OT evaluation, that it did not rise to the level of a denial of a FAPE. (Tr. 98-99). As to Prong 2, the DOE argued that Parent did not meet their burden of showing that the Private School is appropriate because Parent did not present testimony of any of the student's teachers or service providers, that the witness did not provide testimony of the student's functional grade levels or any specifics about the methods of instruction or unique services provided to the student, and that the student's significant absences affected her ability to progress in the program. (Tr. 99-101). Finally, the DOE argued that even if I find reimbursement appropriate, it should be reduced on equitable grounds due to the student's significant absences from the program. (Tr. 100-101).
FINDINGS OF FACT 18
The student attended a public integrated co-teaching ("ICT") class for multiple school years before transferring to Private School for the 2021-22 school year. (Tr. 39-40). In 2018, the student underwent a neuropsychological evaluation and was re-evaluated by the same person[19] in July of 2021. (Ex. 1-1). During the updated evaluation,[20] the following assessments were done: Wechsler Intelligence Scale for Children, Delis-Kaplan Executive Function System (selected subtests), Kaufman Test of Educational Achievement, Comprehensive Test of Phonological Processing, Test of Written Language, Gray Oral Reading Test, and Gray Silent Reading Test. (Ex. 1-1). The evaluator noted that the student struggled with remote and hybrid learning during the pandemic because she is a "hands-on learner." (Ex. 1-1). In the opinion of the evaluator, the student's difficulty with remote learning during the pandemic caused her to "fall further behind academically." This observation is corroborated by the July 2021 social history update, which states that remote instruction led to the student's regression and school avoidance. (Ex. 2-1).
During 2021 testing, the student exhibited greater frustration with her poor academic skills than she had in previous testing. (Ex. 1-2).[21] In regard to the student's general cognitive functioning, the evaluator noted that some of the student's scores (such as verbal comprehension and phonological processing) had fallen since previous testing. (Ex. 1-2). The evaluator noted that the student performed in the Superior Range on graphomotor clerical tasks. (Ex. 1-4). The evaluator found that the student
18 Facts from the "Introduction and Procedural History" and "Background" sections above are incorporated here as well. struggles in the sphere of reading and her reading skills "are well below expectations for someone at her grade level." (Ex. 1-6). The report noted that the student often tries to cover her reading difficulties, but that her efforts to do so will not be tenable as classwork becomes more advanced. (Ex. 1-6). The student's writing fluency tested in the average range, but she exhibited very poor spelling and punctuation. (Ex. 1-6-7). The evaluator noted minor reading improvements since previous testing, but not enough to show that the student had mastered reading. (Ex. 1-7-8).
The 2021 neuropsychological evaluation states that a general education setting is no longer appropriate for the student, and she needs a self-contained special class. (Ex. 1-8). The report recommends a language-intensive program with students of average intelligence and learning disabilities. (Ex. 1-8). The report suggests that instruction "with an Orton-Gillingham or similar approach" would be most effective. (Ex. 1-8). Other recommendations include: 1) a continuation of classroom and testing accommodations, 2) use of a computer and voice recognition software and other technology to replace the need for written answers, 22 3) phonics drills, 4) continued SLT and counseling, 5) consultation with an ophthalmologist to rule out any visuospatial issues, 5) supports to improve her working memory, and 6) supports to improve her abstract reasoning (such as recorded books). (Ex. 1-9).
Standardized testing was done in December of 2021 and the student's scores gave the following grade level equivalents: 1.5 in reading, 2.5 in vocabulary, 1.9 in total reading, 3.7 in math computations, 2.8 in math concepts, 3.2 in total math, and 1.4 in spelling. (Ex. 3-1; 6-2). Private School Director was not familiar with the student's more recent scores or grade level equivalents. (Tr. 29, 31-32). During the previous school year (2021-22), the student received daily targeted reading instruction, and by February had improved to a beginning second grade independent reading level. (Ex. 3-2; 6-2). There is no evidence in the record to show whether the student's scores have increased since those tests were completed.
The student's educational progress report from March of 2022 recommends continued SLT and counseling, multi-sensory instruction, frequent review of skills, AT, chunking of information, refocusing, and individual attention. (Ex. 3-4). The SLT progress report from March of 2022 recommends an SLT mandate of twice weekly sessions in a small group. (Ex. 4-1). The counseling progress report from March of 2022 recommends a counseling mandate of twice weekly sessions, once individually and once in a group. (Ex. 5-1). With the exception of an explicit provision for reviewing skills and an explicit AT mandate, these recommendations are all included in the 3/30/22 IEP, along with testing accommodations. (Ex. 6-5-28). Although there is no explicit AT mandate in the IEP, there are multiple goals involving the use of technology (speech to text, word processing, and text to speech). (Ex. 6-14).
Parent participated in the 3/30/22 IEP meeting along with several teachers from Private School. (Ex. 6-33; Tr. 45-46, 62). Parent testified that she had requested OT and AT evaluations at the 3/30/[22] IEP meeting (Tr. 46), but that request is not reflected in the IEP (Ex. 6). There are no motor deficits or OT concerns listed in the 3/30/22 IEP. (Ex. 6). Parent testified that she followed up her evaluation request by a letter dated April 1, 2022. (Tr. 46, 64). The letter in evidence is dated April 1 (Ex. i), and Parent testified that it was sent by email (Tr. 64-65) but there is no indication in the record showing proof of the email or that it was received by the district. Parent Advocate was directed to provide that proof after the hearing (Tr. 91-92, 107-108), but she failed to do so. Parent testified that an OT evaluation has now been done, possibly in May of 2023 (Tr. 54-55), but the report is not in evidence. An AT evaluation was also done in June of 2023 (Tr. 55), but the report is not in evidence. Parent has not received either of those evaluation reports (Tr. 55); it is unclear from the record whether the reports had been completed at the time of the hearing.
The 3/30/22 IEP reflects Parent's request for placement at Private School[23] and the CSE's belief that the student's needs could be met in the least restrictive environment in the recommended program. (Ex. 6-32-33). The IEP reflects that a non-public school was considered and rejected as it would be too restrictive. (Ex. 6-33). The district sent Parent a prior written notice ("PWN") and school location letter on June 17, 2022, that reflects the recommended program and placement. (Ex. 7; 8). Parent acknowledged receive of the IEP, PWN, and school location letter at the hearing. (Tr. 65-66, 72-73). Upon receipt of the PWN, Parent visited the proposed school location. (Tr. 66). Parent has not alleged any deficiencies with regards to the proposed public-school location or their ability to implement the IEP. Parent testified that her "intention was to send [the student] wherever [she] was going to get the best academic[ly]." (Tr. 67). She also testified that if she had been offered a public school that gave the student the best academic benefit, she would have placed the student there. (Tr. 67).
On May 31, 2022, Parent signed an enrollment contract with Private School for the student's attendance there for the 2022-23 school year. (Ex. H). The contract provides that Parent is obligated to pay an estimated tuition cost of $48,969 to Private School (the final amount to be set after a November 1st audit 24) in two installments.[25] (Ex. H-1-2). The contract also provides that enrollment and tuition payment is unconditional for the entire year, and no early withdrawal is allowed. (Ex. H-2). By the time of the hearing, Parent had paid the entire tuition. (Tr. 17; I; K).
Private School is a special education school in New Jersey that specializes in students of average cognitive ability with language-based learning disabilities. (Ex. C-1; L-1-2). Private School is approved by the New York and New Jersey departments of education. (Ex. L-2). Private School teachers are certified in special education. (Ex. L-2). Private School related service providers are certified in New Jersey. (Tr. 33). Private School provides structured, small group, multisensory instruction. (Ex. L-2). According to Private School Director, the class ratio at Private School is 12:1:1. (Ex. L-3). However, it is unclear what that means, in practice, because classes are grouped by instructional level and may have much fewer (or up to 12) students depending on enrollment numbers at any given functional level. (Ex. L-3; Tr. 25).[26] At least one of the student's classes also has more than 12 students. (Ex. L-3; Tr. 25). Furthermore, other than the affidavit's (seemingly inaccurate) statement that the class ratio at Private
24 There is no indication in the record what the final amount was after the audit. School is 12:1:1, there is no indication in the record that there is a second adult in any of the classes. [27] Chromebooks are provided to Private School students. (Ex. L-5).
At intake, Private School reviews applicants' records and screens them to determine their instructional level and grouping. (Ex. L-2). The students there receive 15 periods per week of English Language Arts ("ELA"), five periods per week of math,[28] three periods per week of social studies, [29] three periods per week of science,[30] one period per week of Class Meeting,[31] four periods per week of physical education,[32] one period per week of health class,[33] two periods per week of art,[34] and one period per week of technology.[35] (Ex. C-1; E-1). The ELA classes are grouped by instructional level, use multisensory methods, and AT is included as part of the class. (Ex. C-1; L-3).[36] The student has one period per day of English,[37] one period of Connected Reading,[38] and the third ELA period alternates between the Wilson program[39] and vocabulary.[40] (Ex. E-1; C-1). The math classes are grouped by instructional level, needs, and learning style. (Ex. C-1; L-4). The math program uses a multisensory approach. (Ex. C-1; L-4). The social studies and science curriculum are taught on grade level. (Ex. C-1). The student also receives the related services of counseling (one individual and one in a group of seven) and SLT (twice per week in a group of four). (Ex. E-1; L-3). The frequency and duration of the student's related services were determined by her IEP. (Tr. 32). Private School did not provide any OT services to the student. (Tr. 32).
The student's counseling sessions used strategies such as deep breathing, role-play, and identifying the feelings of a character in a story and then strategizing ways for them to positively modify their behavior. (Ex. F-2-3; G-2). The December progress report indicates that the student's counseling sessions were designed to help the student "remain calm and exhibit self-control." (Ex. F-2). The student's speech goals focused on development of vocabulary, sentence expansion, listening comprehension, syntax, and sequencing. (Ex. F-12; G-9; L-5). In speech, the student benefited from repetition, hands-on activities, and verbal cues, and made progress identifying objects based on clues and features. (Ex. F-12). In reading, the student was assisted through teacher modeling and reminders, graphic organizers, pre-directed questioning, targeted comprehension questions, repetition, and review. (Ex. F-15; L-5). In English, the student benefited from repeated directions, breakdown of assignments, individual instruction and conferences, vocabulary lists, sentence starters, student writing samples, teacher modeling, peer editing, group brainstorming, graphic organizers, and computer writing tools. (Ex. F-16-17). In social studies, simplified readings, teacher support, and guided practice helped the student understand the material. (Ex. F-3). In math, the use of manipulatives, pictorial representations, reference sheets, and refocusing prompts help the student. (Ex. F-8; L-5). In writing, the student's supports included scaffolded lessons, teacher assistance, step-by-step directions, breakdown of assignments, brainstorming exercises, and individual teacher conferencing. (Ex. L-4). In general, the student was helped by visual cues, chunking of information, repetition and clarification, multi-modal lessons, and refocusing prompts. (Ex. L-3).
During the 2022-23 school year, the student had various illnesses that kept her out of school. [41] (Tr. 46-47). Parent testified that she did not believe it would have been beneficial for the student to be in the classroom or do remote classes on days of extreme pain (Tr. 49, 73-74), but not all of the student's various medical issues involved extreme pain and there is no indication in the record how often those "extreme pain" days happened. Additionally, it is unclear from the record whether some of the student's absences were related to her anxiety and mental health issues. (Tr. 50).[42] During her absences the student could access her Reflex Math assignments online, but no other homework or instruction was offered or available to the student. (Tr. 68-69). The student only had her school-provided Chromebook at home "once in a while." (Tr. 69). After conversing with Parents, Private School offered to give the student extra assistance on days she was in school, rather than to provide any instruction or assignments at home. (Tr. 74).
As of May 31, 2023,[43] during the 2022-23 school year at Private School, the student was absent 58/165 school days (35%). (Ex. J-1). Private School Director was not familiar with the student's attendance numbers. (Tr. 27). She testified that she believes the student's absences were excused based on emails from the Parent (rather than doctors' notes). (Tr. 28). Private School Director was somewhat evasive when asked questions about the student's absences and their affects. When asked whether the student's attendance affected her ability to progress during the school year, she did not give a straight answer.[44] (Tr. 27-28). When asked what the school did to address the student's absences, the answer was also noncommittal and included a lot of uncertain language (like "maybe," "sometimes," "depending on the schedule," and things they might or would try to do). (Tr. 29-30).[45] There is no indication in the record how often the school actually did any of these makeup sessions or how much of the missed instruction and assignments were able to be made up. Private School Director did not mention any offer of remote learning, online access to the student's assignments, or any other way for her to access materials and homework when she was absent.
In December of 2022, the student's progress report indicates that she had made unspecified progress towards her counseling, social studies, speech, science, reading, and English goals but that more time was needed to accomplish them. (Ex. F-2-3, 11, 13, 14, 16). The math progress report indicates that ¼ of the math goals were not worked on, 2/4 the student made little progress, and ¼ she made progress, but the goals were not yet met. (Ex. F-7). In social-emotional performance, the report indicates that the student's behaviors do not interfere with the class and that the student works better when tasks are broken down, assignments are shortened, and directions are repeated. (Ex. F-5). In work habits, the student received mostly "2s" and "1s," meaning the skills were emerging (or in few cases demonstrated consistently), and in social behavior the student received all "2s" (indicating emerging skills). (Ex. F-5). The student met her health and technology goals in December. (Ex. F-9, 12). The report notes that the student's "excessive absences have slowed down her overall acquisition of newly taught material and skills" in math. (Ex. F-8). Similarly, in reading and English, the report notes that "because of her absences, [the student] has incomplete and missing work." (Ex. F-15, 17).
The student's progress report from March of 2023 does not show much, if any, improvement since the December report. The student had again made some unspecified amount of progress towards her goals in counseling, social studies, speech, most of science, English, and reading, but had not completed the goals. (Ex. G-2-3, 8, 12-14). It is unclear whether that unspecified progress was made since the December report, or just since the beginning of the school year, generally. Half the student's math goals still indicated "little progress made" and none were completed. (Ex. G-9). The student's social-emotional performance declined between December and March; the student showed fewer consistent skills ("1s"), and completing assignments was noted as an area of concern. (Ex. G-4). The student continued to meet her technology goals (Ex. G-6), but only half of the student's health goals were completed in March, as opposed to all being completed in December (Ex. G-11). The report notes that the student's "attendance this marking period has impacted her acquisition of newly taught skills in all of her classes." (Ex. G-4). The report further notes that the student's "excessive absences from school this marking period have impacted her overall acquisition of newly taught skills in Math class." (Ex. G-10). In reading and English, the student's absences "affected her growth. She has missing assignments and incomplete work." (Ex. G-14 ,15).
Although Private School Director's affidavit states that the student started the year at Wilson's step four and ended on step five (Ex. L-5), I find that statement to have limited probative value. First, there is no indication in the record to explain what the levels mean (or their grade equivalent) so there is no way to know how much progress that demonstrates. Additionally, it is unclear where those numbers came from, since Private School Director testified at the hearing that she was not familiar with the student's instructional levels (Tr. 31-32) and there are no assessment results/reports from the school year at issue in evidence. Private School Director also testified that the student's vocabulary and reasoning skills have improved. (Ex. L-5). Private School Director's affidavit states that the school "measures progress via teacher observation, daily classroom performance and Terra Nova testing." (Ex. L-6). She testified that in addition to the thrice yearly progress reports,[46] there is also a present levels of performance report that gets drafted and presented at the student's IEP meeting. (Tr. 30-31). However, the end of year progress report and the present levels of performance report are not in evidence [even though the school year is now long over and the CSE was scheduled to reconvene on March 30 (Ex. 6-1)]. Furthermore, there is no objective evidence in the record regarding the student's classroom performance or Terra Nova results. Private School Director was not familiar with the results. (Tr. 31-32). There are no report cards in evidence or any indication that the student received passing grades in her classes at Private School.
According to Private School Director, Private School met the student's needs "through a highly structured learning environment where instruction is provided in small group settings and individualized teacher attention is consistently available." (Ex. L-3). Parent testified that the student "gained knowledge" at the Private School during the 2022-23 school year. (Tr. 50-51).
LEGAL FRAMEWORK
IDEA
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. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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). The IEP must be likely to produce progress greater than mere "trivial advancement." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student identified with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)].
Under New York regulations, as part of any evaluation or re-evaluation, the school district must administer tests and other assessment that are needed to identify the student's developmental needs and whether any program or service modifications are needed to enable the student to meet their annual goals and participate in the general curriculum. 8 N.Y.C.R.R. §200.4(b)(5). Such assessments must be "administered by trained and knowledgeable personnel in accordance with the instructions provided by those who developed such assessments," and include "those tailored to assess specific areas of educational need." 8 N.Y.C.R.R. §§200.4(b)(6), 200.22(a). "No single measure or assessment is used as the sole criterion … for determining an appropriate educational program for a student," and the evaluation must be "sufficiently comprehensive to identify all of the student's special education needs."
Id. As part of any evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep't, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016).
For procedural violations, a denial of a FAPE only occurs "if the procedural inadequacies- (I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents' child; or (III) caused a deprivation of educational benefits." 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
504
Section 504 requires that school districts provide qualified students with a "free appropriate public education… regardless of the nature or severity of the person's [disability]." 34 C.F.R. §104.33(a). Under 504, an appropriate education means "the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504's] procedures." 34 C.F.R. §104.33(b).
Under Section 504, an individual with a disability includes any person who "(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having an impairment." 34 C.F.R. §104.3(j)(1). However, only students who have a substantial limitation of a major life activity have a separate entitlement to a FAPE under the statute. 29 U.S.C. §705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. §35.108(c)(1)(ii). In examining whether a district has failed to provide a FAPE under 504, the office of civil rights ("OCR") considers whether: 1) the district evaluated the student per 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). Section 504 requires that districts reevaluate a student periodically and before any significant change in placement. 34 C.F.R. § 104.35(a) and (d).
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Normally, Parents have the burden of proof for all 504 claims. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). However, since all relevant FAPE claims here are subsumed by the IDEA, the DOE has the burden of proof on all matters regarding the provision of a FAPE.
Relief
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions ("Prongs") constitute the Burlington/Carter analysis.
A unilateral placement is appropriate if it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)("[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction."). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 ("Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) ("[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.").
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 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent's unilateral withdrawal of the 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 themself of need-based scholarships or other financial aid from the private school, 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. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Hearing Issues
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. See Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees [20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §§300.508(d)(3)(i), 300.511(d); 8 N.Y.C.R.R. §§200.5(i)(7)(i)(a); (j)(1)(ii)] or the original due process complaint is amended prior to the impartial hearing [20 U.S.C. §1415(c)(2)(E)(i)(II); 34 C.F.R. §300.507(d)(3)(ii); 8 N.Y.C.R.R. §200.5(i)(7)(b)]. "The parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 187-88 n.4 (2d Cir. 2012); B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 (2d Cir. 2014).
When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue. M.H. v. New York City Dep't of Educ., 685 F.3d 217, 250-51 (2d Cir. 2012); see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 (2d Cir. 2018)(Plaintiffs opened the door to counseling issue through their opening and elicited testimony); B.M., 569 Fed. App'x at 59 (DOE did not open the door to certification issue where only mention of teacher certification was during foundational questions, not in support of substantive arguments); J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 (S.D.N.Y. 2/7/18)(DOE did not open the door regarding a denial of a FAPE for previous school years where evidence regarding that year was only offered and discussed as background information in support of the current year's IEP decisions); A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 (S.D.N.Y. 2013)(DOE did not open the door to issue where there was only "passing mention" of it during testimony and "there is no indication that the DOE sought, let alone obtained, a strategic advantage by raising it."); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 (S.D.N.Y. 8/5/13)(DOE did not open the door to issue where it was mentioned only in terms of background and foundational testimony). In Scott v. New York City Dep't of Educ., the Court found that parents' "broad allegation in the due process complaint that that the IEP was 'not based upon adequate evaluations' is not sufficient to raise the subsidiary issue of the CSE's failure to consider [a specific evaluation]." 6 F. Supp. 3d 424, 438-9 (S.D.N.Y. 2014). Furthermore, the Scott Court found that the DOE had not opened the door to the subsidiary issue where the DOE "only briefly addressed the issue." Id. at 439. Similarly, in Application of a Student with a Disability, Appeal No. 23-024, the State review officer ("SRO") stated that the DPC's allegation that the DOE failed to offer a FAPE for the relevant school year without any specific allegations regarding the operative IEP did "not put the district on notice of what issues the parent had regarding the [IEP]."
ANALYSIS AND CONCLUSIONS OF LAW
Hearing Issues
Here, the DPC contains boilerplate language that the DOE failed to offer a FAPE for the 2022-23 school year, that they failed to evaluate the student "thoroughly and appropriately on a timely basis," and that they "failed to develop a substantively and procedurally appropriate IEP in a timely manner for this student and offer her an appropriate program and services." (Ex. A-2). Those blanket statements must be interpreted in combination with the DPC's "statement of the problem" section, where it alleges that no annual review was scheduled for this school year and that "the CSE's failure to develop an IEP …for the 2022-23 school year and make a program recommendation denied [the student] a FAPE." (Ex. A-2). The DPC further states that, "[i]f the [DOE] attempts to claim that they have offered [the student] a FAPE [Parent] reserves the right to challenge the appropriateness of any alleged placement [sic] the recommended placement, as well as the student's entire IEP including, but not limited to, the appropriateness of any: services, programs, classes, staffing ratios, performance levels, learning characteristics, needs, student participation, accommodation, transition services, diploma objectives and drafted annual goals." (Ex. A-2). While the DPC contains this boilerplate reservation of rights, at no point did Parent Advocate seek to amend the complaint to include allegations of the nature reserved. The district clearly notified Parent Advocate of their intention to defend the offer of a FAPE in their DPR back in April, but no attempt was made to amend the complaint. Even upon receipt of the DOE's hearing disclosures, which included an IEP and PWN, Parent Advocate made no attempt to amend the complaint or withdraw and refile. Nor did they request an opportunity to do so at the hearing when I announced my ruling that the substantive appropriateness of the IEP was not timely raised.
It is unclear why Parent Advocate alleged in the DPC that there had been no CSE meeting, or IEP developed, for the school year at issue, since that was clearly contrary to the hearing evidence of both parties. Parent testified at the hearing that she had participated in the March 30, 2022, IEP meeting and had thereafter received a copy of the IEP and the PWN regarding the district's recommended program. While I can sympathize with an inadvertent error[47] on the part of the Parent Advocate in misstating the issues in the complaint, that does not absolve her of the responsibility to clearly identify the hearing issues in the DPC. She had numerous opportunities to try to fix this mistake and she did not. While Parent Advocate argued at the hearing that the general language mentioning "a substantively and procedurally appropriate IEP" and an "appropriate program and services" in the DPC is sufficient to properly raise the issue of the IEP's substantive appropriateness (namely, her allegation that it lacked small classes and individual attention), I disagree. First, as stated previously, the general language must be interpreted in reference to the specific allegations of the DPC (that there was no CSE meeting, or IEP developed at all). Secondly, courts have addressed similar claims and found that broad allegations, like this, in the DPC are not sufficient to raise more specific subsidiary or related issues.[48] These facts are very similar to those in Application of a Student with a Disability, Appeal No. 23-024. There, the DPC alleged a general denial of a FAPE but did not raise any specific allegations regarding the operative IEP. (Id.). There, as here, the DPC "did not put the district on notice of what issues parent had regarding the [IEP]." (Id.). In this case, the DOE was at an even greater disadvantage, since the DPC alleged that no IEP was developed at all, leading to the reasonable conclusion that, to defend their case, the DOE would only need to prove that they had a timely IEP in place at the start of the school year.
Having determined that the DPC did not properly raise the issue of the substantive inappropriateness of the IEP, the analysis then turns to whether the DOE opened the door to this issue. I find that they have not. First, Parent Advocate did not argue that the DOE had opened the door to this issue at the hearing. Second, although the DOE stated that the recommended program was appropriate in their opening, their remarks were general in nature, they did not elicit testimony on this issue, and there is no indication that they sought or obtained a strategic advantage in raising it. Accordingly, I do not find that they opened the door to the issue of the IEP's substantive appropriateness. [49]
The student's eligibility for special education and disability classification are not in dispute here. (Tr. 15). I have reviewed the Parents' Section 504 claims articulated in the DPC as to the provision of a FAPE and find that such mirror and have merged with those allegations as made under the IDEA. Accordingly, the analysis as to the provision of a FAPE need not be evaluated separately. The DOE has the burdens of production and persuasion as to the provision of a FAPE.
Prong 1
As to Prong I of the Burlington/Carter standard, the DOE met its burden at the hearing. As to the allegation that the DOE failed to hold a timely CSE meeting, develop an IEP, or recommend a program for the 2022-23 school year, the hearing record disproves those allegations. On March 30, 2022, the CSE had a review meeting in which Parent participated. Thereafter, the DOE sent Parent a copy of the 3/30/22 IEP. Then, on June 17, 2022, the DOE sent Parent the PWN[50] explaining the program recommendation. The PWN included a school location letter. Parent acknowledged receipt of these documents. According, the DOE has shown that there was a timely CSE review meeting and a program in place before the start of the school year, as required.
As to the allegation regarding insufficient or untimely evaluations, the DOE has also met its burden. First, there are no allegations in the DPC regarding specific deficiencies of the DOE's evaluations. Even assuming that the lack of an OT evaluation was timely raised, I find no FAPE violation on that basis. The 3/30/22 IEP includes results from teacher assessments from March of 2022 as well as results from the student's 2021 comprehensive neuropsychological evaluation. At the time of the relevant CSE meeting, the neuropsychological assessment was less than a year old and the teacher assessments were less than a month old. Furthermore, several of the student's teachers participated in the CSE meeting. Accordingly, the record shows that the CSE had sufficient evaluative data on which to make their program recommendations. The district is not required to conduct duplicative evaluations when they have sufficient recent private evaluations on which to rely. 51 The DPC does not allege that the CSE was lacking knowledge in a specific area of the student's need.
Again, although the testimony established concern over the lack of OT and AT evaluations, neither were raised in the DPC and the only one Parent Advocate argued was a violation of a FAPE was the missing OT evaluation. 52 While Parent may have requested an OT evaluation at the 3/30/22 IEP meeting and/or by April 1st letter, 53 I do not find that such evaluation was required. Parent has not articulated any factual basis for believing that an OT evaluation was necessary. The neuropsychological evaluation in evidence did not recommend an OT evaluation, nor did it raise any issues of potential need in that area. As the neuropsychological evaluation considered by the DOE was both comprehensive and less than three years old, the DOE was not obligated to conduct further evaluations in preparation for the CSE meeting. Given the dearth of evidence regarding any suspected OT need and in light of the evaluative information available to the CSE, I do not find that the DOE's failure to comply with the Parent's request rose to the level of a denial of a FAPE. For all these reasons, I find that the DOE has met its burden under Prong 1 of showing that the DOE offered the student a FAPE for the 2022-23 school year.
For the purposes of appeal, even if the issue of the substantive appropriateness had been timely raised and was proper for consideration here, I would not find a denial of a FAPE on that basis. The only substantive deficiencies of the IEP raised by Parent Advocate at the hearing were the lack of small classes and individual attention. But the IEP recommended a 12:1+1 special class, which is the same size and ratio of program that was offered by the Private School, 54 which Parent believes was appropriate. Individual and group counseling were provided (with accompanying annual goals) to address the student's self-esteem, focus, social skills, anxiety, and self-regulation. SLT was provided in a group of two (with accompanying goals) to address the student's expressive oral and written language deficits. Furthermore, the Private School provided the student with nearly identical related services as mandated in the IEP, 55 and Parent agreed with that mandate. Private School's related services progress
51 See S.B. v. Goshen Cent. Sch. Dist., No. 20-CV-09167 (PMH), 2022 U.S. Dist. LEXIS 164057, at *42-43 (S.D.N.Y. Sep. 12, 2022)(A district does not commit a procedural violation when it fails to conduct testing in all areas of suspected disability if the parents have their own evaluation conducted, the district substitutes the parentally provided evaluation for its own, and the parents participate in the IEP meeting to review the evaluation). 52 The analysis in this paragraph is equally applicable to the requested AT evaluation. 53 It is unclear from the record whether the request was actually made at the meeting since it is not reflected in the IEP. It is also unclear whether the request letter was ever sent since Parent failed to provide proof of emailing. 54 At least this is the size/ratio that the Private School program is held out to be. As discussed in the facts section above, it does not appear from the record that this description is accurate. Most of the student's classes had fewer than 12 students, but they also did not appear to have had a second adult in the room. So, while the overall student numbers were lower, the ratio may still have been similar to the 6:1 ratio of the recommended public school program. Furthermore, since the appropriateness of an IEP is to be analyzed prospectively from the time the decision was made to reject it, there was no reason at that time to believe that Private School would be providing anything other than their advertised 12:1:1 ratio. 55 The only difference is that Private School provided the group counseling in a much larger group (up to eight students) and SLT in a slightly larger group (three students rather than two). reports from March 2022 endorse such a recommendation, further indicating their agreement that the recommended program was appropriate.
Apart from the small student-teacher ratio of the recommended program, individual counseling, and other related services in groups of two, the IEP provided for individual attention through the student's management needs. These included read aloud problems, breakdown of information, sentence starters and checklists, "going over the flow of the day and clarifying what she will be doing each day," reminders regarding schedule changes, teacher check-ins, refocusing prompts throughout the day, and verbal and nonverbal redirection. The recommended program is largely consistent with the recommendations of the 2021 neuropsychological evaluation (which recommended a self-contained special class, classroom and testing accommodations, and continued SLT and counseling). 56 According to the IEP, the CSE discussed the Parent's belief that the Private School would allow the student to achieve greater progress. The CSE considered and rejected a non-public school placement because they believed that it would not be the student's least restrictive setting. While placement at the Private School might have been optimal for the student, the DOE's FAPE obligation does not require them to maximize potential or provide everything loving parents would desire. Additionally, they are obligated to offer an appropriate program in the least restrictive setting. For these reasons, I find that even if the lack of small classes and individual attention had been timely raised, I would not find a denial of a FAPE on those grounds.
Prong 2
For the purposes of appeal, even if the DOE had not met its Prong 1 burden, I would find that Parents have not met their Prong 2 burden and thus would not be entitled to reimbursement. Here, the evidence is insufficient to show that the Private School program was specially designed to meet the unique needs of the student or that it meets those needs. 57 First, both the student's class sizes and related services provided by Private School were not determined through independent analysis of the student's needs. The class size was determined by the number of students who enrolled at a particular functional level. The related services were determined by the IEP. Given these facts, it appears that the foundational aspects of the student's program were not specifically designed to meet the student's unique needs. 58 Moreover, Private School did not conduct any assessments of the student at the beginning of the school year to help with program decisions. 59
56 While an explicit AT mandate might have been more appropriate, the lack of one has not been raised by Parent as a basis for the substantive insufficiency of the IEP, so it will not be discussed further herein. 57 Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 510-511 (S.D.N.Y 2010)(Even where a private school generally has services that might meet a student's needs, if the school fails to tailor its program to the student's unique needs and the student fails to make progress in the program, the program will not be considered an appropriate placement under Prong 2). 58 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 114 (2d Cir. 2007)(Supports at a private placement that would benefit any student, disabled or not, and which are not "specifically designed to meet the unique needs" of the student with a disability do not weigh in favor of the appropriateness of a private school placement). 59 Although the affidavit of Private School Director describes a records review and diagnostic testing done upon student intake, she clarified at the hearing that this was done during the student's initial intake last school year, not the school year at issue. (Tr. 26).
Additionally, there is no indication in the record that Private School satisfied any relevant need that the public-school placement was lacking. 60 The only two deficiencies of the IEP raised by Parents here were the lack of small classes and individual attention. But, as described above, those things were not lacking in the IEP. Moreover, the class sizes in Private School can also have up to 12 students (the same number as the public program) and may not have a second adult in the room. Based on the record here, it does not appear that the Private School program satisfied any relevant need that the IEP did not.
Furthermore, there is little objective evidence in the record of the student's progress at Private School. 61 First, I must note that I found the Parent's testimony to be somewhat unreliable 62 and the testimony of Private School Director to have limited evidentiary value and reliability. Private School Director had little, if any, personal knowledge about the student. She did not teach the student, she was not familiar with her attendance numbers, she did not recall the details of the student's progress reports, and she was not familiar with the student's functional grade levels at the beginning or end of the school year at issue. Although Private School Director testified that the school does standardized assessments in December, the results of those assessments are not in evidence and Private School Director was not familiar with the results. There are no report cards in evidence, nor is the student's end-of-year progress report or present levels of performance report in evidence. Based on the two mid-year progress reports in evidence, it appears that the student did not complete any goals in any of her core academic subjects or related services, and made limited, undefined progress in those goals. The student's performance on her health goals seems to have decreased between December and March, and her social-emotional performance declined as well. The progress reports in evidence are replete with comments about how the student's frequent absences were affecting her skill acquisition and progress, and how she was missing assignments and not completing her work. Accordingly, while progress is only one of the relevant factors in Prong 2, 63 the student's lack of progress at the Private School is a factor that weighs against a finding of appropriateness.[64] This goes hand in hand with the lack of a specially designed
60 If a private school satisfies what the IEP was lacking, that weighs in favor of the appropriateness of the unilateral placement. See P.K. v. New York City Dep't of Educ., 819 F. Supp. 2d 90, 116 (E.D.N.Y. 2011) (finding the private placement appropriate when it provided 1:1 speech, ABA therapy, and parent training which were the precise services the student needed but were not in the IEP); Frank G., 459 F.3d at 365 (describing how the unilateral placement provided services the district acknowledged that the student required yet failed to provide). Logically, the opposite must also be true. 61 Frank G., 459 F.3d at 365 (courts must examine the record for any "objective evidence" indicating whether the child was likely to make progress or regress under the proposed plan); L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 491 (S.D.N.Y. 2013)(In reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence). 62 I have no doubt that Parent was trying to be truthful, but she seemed to continually mix up facts from the 2021-22 and 2022-23 school years. Often, she would testify in ways that contradicted other evidence, and then later change her testimony upon realizing that she was talking about a different school year. (See, e.g., Tr. 42, 45-46, 52-54 60-61, 63, 72-73, 74-75). Ultimately, it is difficult to determine whether many of Parent's answers were accurate, since she seemingly had the two school years so mixed up in her mind. She also seemed to confuse the offered 12:1:1 program with the ICT program the student had previously attended in public school, possibly because they were offered at the same school location. (Tr. 45-46, 54, 69-70). It is unclear from the record whether the Parent is aware that a 12:1:1 class is different than an ICT class. Parent Advocate seemed similarly confused at times, too, such as when she argued that the 3/30/22 IEP's offer of a 12:1:1 special class was "similar to the recommendations, if not almost the same" as the ICT class offered during the 2021-22 school year. (Tr. 20).
63 Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011). program – if the school had been monitoring the student's lack of progress appropriately, they should have made modifications to the program to improve the student's attendance and performance,[65] but there is no indication that they did.
Moreover, I find it incredibly troubling that the student was absent more than 1/3 of the school year (53/153 total school days), and the Private School took no steps to modify the student's program to include a remote learning component or other measures that would have allowed the student to do missed assignments at home. Although the absences were largely excused, and Parent testified that she did not believe the student could have benefited from instruction on days of intense pain, that does not absolve the school from their responsibility to tailor their program to meet the student's needs. Additionally, the majority of the student's absences do not coincide with the periods in which she would have been having intense pain; based on the record, the student's fibromyalgia symptoms did not start until April and the student's worst attendance months were November and March.[66] There is nothing in the record to suggest that during the student's other absences, she would not have been able to benefit from remote instruction. Furthermore, it is unclear from the record what percentage of the student's absences were due to her pain disorder and what percentage were caused by other issues, such as anxiety and psychiatric treatment. If the student's anxiety and mental health issues were causing school refusal or avoidance, that is an issue that Private School should have addressed, whether that be through an increase in counseling or other strategies.[67] There is no indication in the record that the school made any attempt to modify the student's program to address her worsening social-emotional needs.
Although individual makeup sessions were held with the student some days at the beginning or end of day or at lunch ("sometimes," "when they can"), there is no indication in the record how often that happened. Even if those sessions were every day, that alone would not be sufficient to compensate for the sheer number of the student's absences and the amount of missed instruction. Given the student's deficits, it is difficult to imagine that an hour (or so) per day could begin to make up for an entire missed school day, let alone several. Again, there is no indication in the record that Private School attempted to adapt the student's program to include online assignments or at-home services in light of her medical issues. Most of her assignments were not even available online, nor did the school ensure that the not include objective evidence, such as report cards, progress notes, work samples, standardized assessments, or progress towards written goals); Application of a Student with a Disability, Appeal No. 23-085 (holding that despite the parent's attempt to replicate a program similar to the student's last-agreed upon summer IEP, parent failed to meet their prong 2 burden where they failed to come forward with evidence that describes the services and delivery thereof or how they met the student's needs and the record does not show that the student made progress); Application of a Student with a Disability, Appeal No. 23-066 (holding that where the hearing record was sparse as to what services the student received or how they addressed the student's needs - there was testimony that individual goals were developed and reviewed quarterly and that services were specialized but none of the goals or assessment reports were in evidence – the IHO correctly found that Parent did not meet their burden to establish the appropriateness of unilateral equitable services). student took her school provided computer home to complete assignments. According to Parent, the student only had access to her math assignments remotely and only had her school computer "once in a while." Based on the evidence before me and considering the totality of the circumstances here, I do not find that Parent has met their burden of showing that the Private School program was appropriate for the student for the 2022-23 school year.
Prong 3
For the purposes of appeal, even if I had found differently on Prongs 1 and 2, I would still find that full reimbursement is not appropriate based on equitable considerations here. The equities favor the DOE. Parent did participate in the CSE meeting, contact the proposed public-school placement, and provide the necessary Ten-Day Notice. However, Parent Advocate did not comply with my directive to provide proof of mailing of the evaluation request letter. Furthermore, there is considerable doubt whether Parent meaningfully considered a public-school placement here. The parent comments listed on the IEP suggest that Parent's decision to enroll unilaterally was a foregone conclusion because she was seeking to provide the "best educational environment" for the student. In seeking to maximize the student's potential, it appears that Parent neglected to meaningfully consider an offer of an appropriate public program. This conclusion is supported by the following facts: the Ten-Day Notice did not indicate that the Parent would consider an appropriate public program instead of the unilateral placement, the enrollment contract for Private School was signed in May of 2022 (before the PWN and school location letter were sent), and Parent agreed to pay the full year's tuition without any possibility of early withdrawal if she had accepted a DOE program. All these facts suggest a lack of meaningful consideration of the public-school program on behalf of the parent. Finally, the student missed a considerable amount of school days. Given all these factors, and the student's poor attendance, even if I were to have found that reimbursement was appropriate, I would have reduced it by one third to account for the student's excessive absences.
I have reviewed the parties' remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parents' remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law:
1. IT IS HEREBY ORDERED that all claims raised by Parent are hereby dismissed with prejudice.
SO ORDERED.
DATED: August 25, 2023
Leah Martin, Esq. (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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE'S EXHIBITS
1. Neuropsychological Evaluation 7/7/21 9 pages DOE
2. Social History Update 7/21/21 2 pages DOE
3. Educational Progress Report March 2022 4 pages DOE
4. SLT Progress Report March 2022 1 page DOE
5. Counseling Progress Report March 2022 1 page DOE
6. IEP 3/30/22 33 pages DOE
7. Prior Written Notice 6/17/22 6 pages DOE
8. Email with PWN 6/17/22 1 page DOE
9. Private School Attendance 2021-2022 1 page DOE
10. Private School Attendance 2022-2023 1 page DOE
PARENT EXHIBITS
A. Impartial Hearing Request 4/13/23 4 pages
B. FOFD 10/25/22 12 pages
C. Program Description Undated 1 page
D. Ten Day Notice 8/26/22 2 pages
E. Class Schedule 2022-2023 1 page
F. Progress Report Dec. 2022 17 pages
G. Progress Report Mar. 2023 15 pages
H. Enrollment Contract 7/1/22 3 pages
I. Tuition Affidavit 5/30/23 1 page
J. Attendance Record 2022-2023 1 page
K. Parent Proof of Payment Various 12 pages
L. Private School Director Testimony Affidavit Undated 6 pages
IHO'S EXHIBITS
PARENT
i. Letter Requesting Evaluations 4/1/22 1 page
ii. DPR 4/26/23 3 pages
Footnotes
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE Exhibits, and lower-case roman numeral designations for IHO Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] The DPC also requested related services from the last IEP (Ex. A-3), but Parent Advocate confirmed at the hearing that the related services are included in the Private School tuition (Tr. 16). The DPC additionally requests the provision of transportation, but the school year at issue was over by the time of the hearing, so it was no longer a live issue, and the record does not contain any evidence of out-of-pocket transportation costs, so this will not be discussed further.
[4] The DPR is included in the hearing record as IHO Exhibit ii.
[5] The DPC alleges that pendency lies in the Private School based on an unappealed findings of fact and decision ("FOFD") from October 25, 2022. (Ex. A-1; B). Since pendency was settled by agreement, I have not considered the previous FOFD (Ex. B) in rendering this decision, as it is not relevant to any of the live issues.
[6] Due to an issue with the availability of the DOE's witness, they requested by email to be allowed to take testimony out of order and to add a second hearing date for the DOE's witness. (See Witness Order Emails). Parent Advocate did not object and the DOE's request was granted. (Id.; Tr. 6). Any references to the DPH Transcript will be cited as "Tr." followed by the page number in the transcript.
[7] The DOE timely disclosed a witness list with two witnesses. (See DOE Evidence). On the first day of hearing the DOE indicated that they were only going to be calling one witness (the district representative). (Tr. 6, 14). After a discussion on the record on the second hearing date regarding the issues that were appropriately raised in the DPC, the DOE decided not to call any witnesses and rested on the documents in evidence. (Tr. 92).
[8] Exhibit L is Private School Director's unsworn direct testimony affidavit, but it was sworn to on the record before being admitted into evidence. (Tr. 22-23).
[12] The record was also left open to allow receipt of additional documentation [proof of mailing/receipt of the April evaluation request letter (Ex. i)] that was requested of Parent Advocate, but the requested documentation was never submitted, nor was any explanation given regarding the failure to provide it.
[14] The DPC also alleges claims under 42 U.S.C. §1983, but I do not have authority to adjudicate those claims so they will not be addressed in this decision.
[15] The letter does not indicate that the Parent would withdraw from Private School if an appropriate program was offered prior to the start of the school year; rather, it states only that Parent requests "that the DOE recommend this case for settlement." (Ex. D-2).
[16] The DPC also raises the issue of transportation, but Parent indicated at the hearing that the student received transportation for the school year at issue (Tr. 75), and the school year is over, so there are no live issues to adjudicate regarding transportation. At hearing, Parent Advocate raised, for the first time, the fact that the student had an updated private evaluation in March of 2023 that the CSE should have considered at a new IEP meeting (Tr. 56-60) and that the 3/30/22 CSE failed to consider all the evaluative information Parent provided (Tr. 61). These was not timely raised in the DPC, so they are not at issue in this case.
[17] Although the evidence shows that Parent requested OT and assistive technology ("AT") evaluations, Parent Advocate only raised an issue about the OT evaluation at the hearing. (Tr. 20-21). Accordingly, the lack of an AT evaluation will not be considered herein as a potential procedural violation.
[19] The evaluations were done by a licensed Doctor of Psychology. (Ex. 1-9).
[20] This report was given to the DOE. (Tr. 52-53).
[21] This is corroborated by Parent's statement in the July 2021 social history update that the student has poor self-esteem because she thinks of herself as "stupid." (Ex. 2-2).
[22] This is corroborated by the student's educational progress report from March of 2022, which states that the student "benefits from the use of assistive technology." (Ex. 3-3). Based on the entirety of the evaluation report, it appears that the AT recommendation is based on the student's poor spelling and punctuation, rather than any motor deficits.
[23] The IEP states that "Parent expressed concerns and indicated that at the current school [the student] is doing much better and parent believes that this is the best educational environment." (Ex. 6-32).
[25] Each installment was $24,484.50, one due August 1st and one due January 1st. (Ex. H-2).
[26] Private School Director testified that the class size is determined by the number of students at a particular functional level (Tr. 25) and that there is no assessment or evaluation done to determine the appropriate class size for a student (Tr. 33).
[27] The student's progress reports in evidence generally list one teacher per class (Ex. F; G). There was no testimony at the hearing establishing that there is a second adult in any class, or what that person's role or qualifications might be. So, I cannot credit that there was, in fact, a second adult in each of the student's classes.
[28] This class has six students. (Ex. L-3).
[29] This class has eight students. (Ex. L-3).
[30] This class has five students. (Ex. L-3).
[31] This is a social skills problem-solving class. (Ex. C-1).
[32] This class has sixteen students. (Ex. L-3).
[33] It is unclear from the record how many students are in this class.
[34] This class has five students. (Ex. L-3).
[35] This class has five students. (Ex. L-3).
[36] Although the program description includes the claim that AT and "individualized techniques and strategies are used throughout the curriculum as needed" (Ex. C-1), I have only credited that statement to the extent that there is specific information in the record regarding techniques and strategies adapted for this particular student.
[37] This class has five students. (Ex. L-3).
[38] This class has four students. (Ex. L-3).
[39] This class has two students. (Ex. L-3). "The Wilson Reading Program is based on the Orton Gillingham method and builds a network of sound-symbol association using visual, auditory, kinesthetic, and tactile modalities. It is a highly structured, step-by-step approach to utilizing sight word instruction, vocabulary, oral expressive language development and comprehension in which each step builds on previous accomplishments." (Ex. L-4). This class is taught by certified Wilson instructors. (Ex. L-4).
[40] This class has three students. (Ex. L-3).
[41] The record is unclear exactly how much school was missed for each illness. In November the student had COVID. (Tr. 47). In December she started having unexplained pain, fever, and headaches. (Tr. 47). In February, she tested positive for mono, which can have symptoms for six to eight weeks. (Tr. 47-48). In April the student started having joint pain and was diagnosed with amplified musculoskeletal pain syndrome (a type of fibromyalgia). (Tr. 48).
[42] When asked about medical documentation for the student's absences, Parent answered that she provided a note from the student's rheumatologist and a letter from her neurologist regarding her "severe anxiety disorder" and accompanying psychological workup. (Tr. 50).
[43] The record does not contain attendance information for June 2023.
[44] Her response was, "I believe that the attendance – you know, to retain information, there was a lot of reviewing and repetition, you know, to kind of make sure she remembered what was happening while she was absent." (Tr. 27-28).
[45] Her response was, "So it would be like working with the teacher, try to do one-on-one conferencing when they can, pull her from, like, early morning when the kids are just sort of getting into the school, maybe at the end of the day, sometimes they may have her come in at lunch time. So depending on the schedule, they would try then to work with her." (Tr. 29-30).
[46] Private School Director had seen the reports but "like, not recently" so was unable to provide any details about these reports. (Tr. 29).
[47] Parent testified that she had not received an IEP for the 2021-22 school year, so it is possible that Parent Advocate re-used the previous DPC as a template when creating this year's complaint and forgot to change the relevant allegations.
[48] See, e.g., Scott, 6 F. Supp. 3d at 438-9.
[49] See J.C.S., 2013 WL 3975942, *9; M.H., 685 F.3d 217; A.D., 739 Fed. App'x 79; J.G., 2018 WL 749010; A.M., 964 F. Supp. 2d 270.
[50] Although the date of the meeting referenced in the PWN is incorrect, given that it was sent after the March 30, 2022, meeting and Parent participated in the meeting, I do not find that this typographical error impacted the sufficiency of the notice. Nor has Parent raised any issues regarding the sufficiency of the PWN.
[64] R.H. v. Bd. of Educ. Saugerties C. Sch. Dist., 2018 WL 2304740, at *7 (N.D.N.Y. May 21, 2018), aff'd, 776 Fed. Appx. 719 (2d Cir. 2019)(finding insufficient evidence of a student's progress at a unilateral placement where the hearing record did
[65] See Application of a Student with a Disability, Appeal No. 23-053 (finding that the private school made insufficient efforts to address the student's worsening behavior and had failed to develop any formal plan to facilitate the student's return to the classroom).
[66] The student missed two days in September, seven days in October, 10 days in November, seven days in December, six days in January, four days in February, 12 days in March, two days in April, and eight days in May. (Ex. J-1).
[67] Application of a Student with a Disability, Appeal No. 23-053 (finding that the private school made insufficient efforts to address student's behavioral/safety concerns during transportation -which had necessitated a switch to remote instruction - and had failed to develop any formal plan to facilitate the student's return to the classroom).