NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 248088
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 5/8/2023
Hearing Requested by: Parent
Date of Hearing: 7/13/2023; 7/27/2023
Record Close Date: 8/16/2023
Date of Decision: 8/16/2023
Time Sensitive? No
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”) — Student
(“DOE”): — DOE
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as — DOE
“District’s Representative”) — DOE
Identifying Information Term Used In FOFD and/or Exhibit List — DOE
REDACTED — Parents
REDACTED Private School — DOE
REDACTED Educational Director — DOE
Findings of Fact and Decision — DOE
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 248088
THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor
has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 5/8/2023,
Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year, and unilaterally placed Student in Private School.
During the school year in which Parent filed the DPC, Student was classified with Speech or Language Impairment.
The Due Process Hearing (“DPH”) took place on 7/13/2023, whereby Parent submitted affidavit testimonies of Parent and Educational Director, and documentary evidence. DOE presented documentary evidence, cross-examined Parent’s witnesses, and provided no testimonial evidence. At the end of the hearing Parent’s Attorney requested that oral closings be postponed while awaiting transcripts in the case, and a second date of hearing was held on 7/27/2023 for this limited purpose.
III. Findings of Fact and Decision
A. FAPE for the 2021-2022, 10-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and parents of such students are protected.[1] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. [2]
A free and appropriate public education can be said to be offered to a student when
(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[3] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[4] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[5]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[6] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[7] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [8]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[9] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[10] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[11] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[12] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[13] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[14] but are required to provide "an IEP that is 'likely to
produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[15]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[16] and designed to be provided in the least restrictive environment (“LRE”).[17] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[18] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum 19 through the use of appropriate special education services.[20]
Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[21]
1. CPSE IEP Meeting
Although Student’s 1/27/2021 22 pre-kindergarten IEP is not directly at issue in this case, it does provide valuable information as to where Student’s educational program was, which would have informed the subsequent, school-age, IEP. This is especially true since a
19 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
22 Ex. DOE-2.
CSE IEP was developed (discussed below) less than 4 months later due to Student ‘aging out’ of the CPSE as a preschool child with disability to the CSE as a school-aged child classified with one of the 13 disability classifications of the IDEA. The subsequent IEP intimately wove in the CPSE IEP when making its recommendations, especially since both IEPs were created in the same, 2020-2021 school year. Therefore, it is illustrative, if not crucial, to look at these two documents together, as the older—preschool—IEP informed the newer—school-age—
IEP.
a. Present Levels of Performance
As a [REDACTED]-year-old, Student’s evaluation 23 results indicated delays in his present levels of performance and that he averaged between 3.9, as a low, and 4.3, as a high, in the age ranges across the domains of cognition, communication, social/emotional, gross motor, fine motor, and activities of daily living (“ADL”), on the Brigance Diagnostic Tool.
Student made progress with his cognitive skills that were described as age-appropriate, and the IEP indicated that Student was easily distracted and frustrated while engaging in non-preferred activities. The CSE recommended redirection and encouragement to address these issues. 24
The CSE determined that Student had difficulty with his communication, and that he used 1-4 utterances when speaking. 25 Student was friendly and happy with moderate delays in his receptive and expressive language skills. Socially, Student was interactive with his
23 Ex. DOE-2-3. 24 Id. 25 Id.
peers, and articulated his dislikes. Student preferred to play by himself and required modeling and encouragement to play with his peers.[26] Student’s physical development implicated difficulties with his motor skills, and that he needed assistance in zipping his coat and blowing his nose. Socially, Student was described as friendly, that he made advances in positively relating to his peers, but that he would, at times, be possessive of his toys in school, and similarly exhibited difficulty in sharing objects at home with his siblings. [27]
b. Annual Goals
Although the CPSE documented annual goals in the IEP, it seems clear that the goals were designed to ‘hold over’ Student until the CSE created a new IEP because Student was aging out as a preschooler. Nevertheless, the CPSE IEP goals addressed Student’s fine motor skills with a focus on dexterity and the use of utensils and writing instruments to improve his writing.[28] The annual goals were specific, and although there were no benchmarks in terms of trials and success rates, the goals addressed Student’s fine motor skills in their relationships to writing and drawing. 29 Socialization skills indicated that improvement over the year 30 would be based on an 80% accuracy paradigm, but this goal would not be easily measurable on an annual basis. Nevertheless, teacher observation of Student’s interactions with his peers was identified as the assessment criterion, and it seems reasonable that absent constant data-collection, which would be onerous and impracticable, it was the best
30 This goal was created for the entirety of the IEP’s 1-year longevity, which was an appropriate step despite the imminent transition from the CPSE to the CSE.
methodology to employ in this domain as a year-long goal. 31 As short-term benchmarks, the goals were specific in that they envisioned progress using faded prompts in Student’s play- time with his peers, sharing toys or objects, expressing his thoughts and moods, and using words during play. 32 Similarly, in the area of communication, the emphasis was on increasing vocabulary and the increased use in categorization language and ‘WH’ questions. 33 The CPSE emphasized increased socialization in the context of improvement in his attention through small and large group activities, completion of simple tasks, and adherence to class rules, routines, and transitions. 34
The IEP also addressed Student’s gross motor skills, which had a direct impact on his education and ADL. This included balance using stairs, simple leg stands, a balance beam, jumps, and a throwing a tennis ball. 35 Specific goals were documented to address Student’s delays in his cognition, to include counting by rote, identification of letters and their respective sounds, and category classification of objects. 36 Finally, Student’s expressive language communication focused on object labeling by function, sentences of 4-5 words, and the retelling of a story. 37
c. Recommended Services
31 Ex. DOE 2-7. 32 Id. 33 Id.
34 Ex. DOE-2-8
35 Ex. DOE 2-9. 36 Ex. DOE 2-10. 37 Id.
The CSE did not recommend a positive behavior intervention plan, 38 and there were no indications in the IEP or at the DPC that there were maladaptive behaviors that required addressing. However, the CPSE recommended a 12-month, extended school year (“ESY”), program to avoid substantial regression in the break in services over the summer months. 39
The IEP recommended: 40
• Special Education Itinerant Teacher (“SEIT”)41 10 hours per week, at a student to teacher ratio of up to 2:1;
• Speech and Language Therapy (“SLT”), 30-minutes, twice per week, at a student to provider ratio of 1:1;
• Occupational Therapy (“OT”), 30-minutes, twice per week, at a student to provider ratio of 1:1; and
• Physical Therapy (“PT”), 30-minutes, twice per week, at a student to provider ratio of
1:1.
2. CSE IEP Meeting
38 Ex. DOE 2-6. 39 Ex. DOE 2-14. The CPSE recommended ESY even though the beginning of the 2021-2022 school year was July 1, 2021, and the CPSE contemplated a turning 5 CSE meeting before the beginning of the next school year. As discussed below, Education Law § 4410(1)(i) contemplates special education services for preschoolers to continue through July and August of the subsequent school year. This distinction should be kept in mind as there is an apparent contradiction between Education Law § 4410(1)(i) and Education Law § 2(15), which defines the beginning of a school year as July 1. See 8 NYCRR § 200.1(aaa), §200.1(eee), § 200.6(k)(1), § 200.16(i)(3)(5). ESY services may be provided during times other than the summer, such as before and after regular school hours or during school vacations, if the CSE determines that the child requires ESY services during those time periods in order to receive a FAPE. See Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46582 (August 14, 2006). 40 Ex. DOE 2-12. 41 State law defines SEIT services as "an approved program provided by a certified special education teacher . . . , at a site . .
. , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "Special Education Itinerant Services for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at http://www.p12.nysed.gov/specialed/publications/2015memos/documents/SpecialEducationItine rantServicesforPreschoolChildrenwithDisabilities.pdf; "Approved Preschool Special Education Programs Providing Special Education Itinerant Teacher Services," Office of Special Educ. [June 2011], available at http://www.p12.nysed.gov/specialed/publications/SEITjointmemo.pdf.
The CSE convened on 5/12/2021 and developed a school-age IEP. 42 This meeting was less than 4 months since the CPSE developed an IEP. The CSE noted that mother stated that Student had not yet been accepted to a private school, and, therefore, the CSE proceeded with its program recommendations under the rubric of an IEP instead of an IESP, as the law requires.
a. Present Levels of Performance
The IEP acknowledged the services Student was receiving as a preschooler, and indicated that he:
“…has made progress in his cognitive development. He can identify all of his body parts, farm/zoo animals, shapes, colors, numbers 1 through10 and uppercase letters
A through F both receptively and expressively. Additionally, he counts by rote to 10.
He understands big/little, long/short, large/small and more/less. listening skills are showing improvement, as we work on skills such as following directions and repeating information. He is able to remain focused in a group setting as well as an individual setting for a period of time during a topic that he enjoys. Although, he demonstrates age-appropriate cognitive skills, he still gets very distracted and frustrated when topics aren’t to his liking. He will lose focus during group settings such as circle time and has a difficult time attending and participating. Therefore, he needs a lot of redirecting and encouragement from teachers and therapists.” 43
Student knew “all of his uppercase letters, his numbers 1-20, he writes his first name, but not fluent in writing his last name.” 44
42 Ex. DOE 6. 43 Ex. DOE 6-2. 44 Id.
The IEP references the SLT progress report, which indicates Student’s strength and weaknesses. 45 Mother’s concern was that "[a]t home, [Student] works for the first five minutes and then he becomes distracted. He doesn't want to do his work. He can not [sic]
focus for more than five minutes." 46 Further, the IEP referenced Student’s preschool setting where he was “in a classroom of 13 students, one classroom teacher, one teacher assistant, a floater, and his SEIT teacher.” 47 Despite the number of adults in the class Student was distractable, had difficulty focusing, but his SEIT provider assisted with his difficulties. 48 The teacher recommended a general education class with Special Education Teacher Support Services (“SETSS”), 49 and this recommendation was made because Student would be attending a private school, and SETSS 50 would be used to address his needs as the private school did not have an Integrated Co-Teaching classroom (“ICT”), which was what the CSE ultimately recommended for Student at the DOE programming. 51
A social history update 52 was created on 3/15/2021 in preparation for Student aging out as a preschooler and for the 5/12/2021 CSE meeting, but it indicated that Parent did not respond to the DOE’s request for an update and parental participation. The update noted that a notice of social history was sent to Parent on 3/11/2021, and that there were follow-up phone calls (number of calls not documented) on 3/11/2023 advising Parent of the social history meeting. The document further noted that Parent did not keep the appointment. In
45 Ex. DOE 6-1;2. 46 Ex. DOE 6-2. 47 Id. 48 Id. 49 SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6) and it is not defined in the hearing record in this proceeding. 50 Ex. DOE 6-2. 51 Ex. DOE 6-3. 52 Ex. DOE 4.
her testimony, Parent stated that she was “not sure” 53 why she did not attend the meeting but did not dispute that one was scheduled or that she did not attend. The update concluded that Student “has made progress towards his IEP goals with the provision of special education services.” 54
A classroom observation 55 was not completed because of the COVID-19 pandemic, but it documented that Student “has made moderate progress towards his IEP goals with the provision of special education services. However, more time is needed. [Student] has made progress in his cognitive, social emotional, adaptive, fine/gross motor and communication development.” 56
b. Annual Goals
In math, Student was expected to “exhibit one to one math correspondence with the use of manipulatives and visuals, as well as mathematical concepts,” 4 out of 5 trials, with
70% accuracy through teacher/provider observations and recorded data, checklists, and verbal explanation. 57
In ELA and expressive language, Student was expected to “write sentences of up to five words independently, as well as with sentence starters, using correct punctuation,” 4 out of 5 trials, with 70% accuracy through teacher/provider observations and recorded data,
53 Tr. p. 69. 54 Ex. DOE 4-1. 55 Ex. DOE 5. 56 Ex. DOE 5-1. 57 Ex. DOE 6-9.
performance assessment, task, and checklists. 58 “When given a list of 50 grade level, high-frequency words, [Student] will correctly read 40 out of 50 target words aloud with fluency,”
4 out of 5 trials over a period of 5 consecutive trials through teacher/provider observations and recorded data, checklists, and verbal explanation. 59 Relatedly, Student was to “retell several key events from a simple, familiar story or past experience, given faded prompts.” 60
In PT, Student was expected to “demonstrate improved balance so he may safely navigate his environment” with 80% accuracy to be documented through recorded observations. 61 There was a related goal for Student to “improve his fine motor skills by utilizing grade appropriate manipulatives (pencil, crayon, scissors, blocks, etc.) comparably to his same aged peers.” 62
The goals were specific, measurable, and directly related to Student’s individualized needs. “Courts have explained that an IEP need not identify annual goals as the only vehicle for addressing each and every need in order to conclude that the IEP offered the student a FAPE, 63 and “generally have been reluctant to find a denial of a FAPE on the basis of an IEP failing to sufficiently specify how a student's progress toward his or her annual goals will be measured when the goals address the student's areas of need.” 64
58 Ex. DOE 6-10. 59 Ex. DOE 6-8. 60 Ex. DOE 6-13. 61 Ex. DOE 6-11. 62 Ex. DOE 6-12. 63 State Appeal No. 23-117 citing J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 199 [E.D.N.Y. 2017]. 64 State Appeal No. 23-117 citing D.A.B. v, New York City Dep't of Educ., 973 F. Supp. 2d 344, 359-61 [S.D.N.Y. 2013]; A.D. v.
New York City Dep't of Educ., 2013 WL 1155570, at *10-*11 [S.D.N.Y. Mar. 19, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *13 [S.D.N.Y. Feb. 20, 2013]; P.K. v. New York City Dep't of Educ. (Region 4), 819 F. Supp. 2d 90, 109 [S.D.N.Y. 2011], aff'd, 526 Fed. App'x 135 [2d Cir. May 21, 2013].
c. Recommended Services
Although partially documented in the present level of performance section of the IEP, 65 the CSE recommended a classification of Speech and Language Impairment, and that Student attend an ICT classroom. The CSE rejected a general education classroom with SETSS because it would not be sufficient to address Student’s needs, but, as indicated above, the SETSS potential; recommendation was made earlier with the assumption that Student would attend an unspecified private school, and DOE proceeded with its recommendation with the assumption that Student would attend a DOE school. The CSE rejected a 12:1:1 in a community school because he presented with age-appropriate academic skills and determined that the special class program was too restrictive.
The CSE made changes to the services outlined in the CPSE IEP, and recommended:
• ICT for English Language Arts (“ELA”) five periods per week;
• ICT for math five periods per week;
• ICT for social studies five periods per week;
• ICT for sciences five periods per week;
• OT individual service twice per week for 30-minute sessions;
• PT individual service twice per week for 30-minute sessions;66
• SLT. 1:1, once per week for 30-minute sessions;
• SLT, up to a group of two, once per week for 30-minute session.
65 Ex. DOE 6-3. 66 PT was recommended, but Parent requested to remove the service. Parent was persuaded by the CSE to continue PT because the CSE was “reluctant to terminate this level of support, at this time, without recommendation from his Physical Therapist. [Student] has not received Physical Therapy this year due to the Pandemic. Upon his return to school and consultation with the Physical Therapist, mother will discuss if this services [sic] should continue. Mother and teachers agreed with this recommendation.” (Ex. DOE 6-6)
• 12-month services were deemed to be not needed. 67
There were no indications, either during the CPSE or CSE meetings, that Student required new evaluations or re-evaluations to provide him with a FAPE, or that the CSE did not have sufficient evaluative material to make a determination. Federal regulations under the IDEA require regular reevaluations of children with disabilities. 68 Unless there was an agreement between the parent and the DOE, reevaluations must take place every three years, but may occur as often as every year. 69 Reevaluations must occur "[i]f the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation." 70
d. Prior Written Notices
The Prior Written Notice (“PWN”) dated 5/14/2021 71 recapitulated the program the CSE created and indicated the documents upon which the CSE relied to make its determination. Those documents were the classroom observations, the social history update, and the preschool IEP. The PWN reiterated that the options the CSE considered, but
67 Ex. DOE 6, 14-15 indicates that the projected beginning service dates were 7/1/2021, yet Ex. DOE 6-15 indicates that 12- month programming was not necessary. This apparent discrepancy is resolved and moot as Education Law § 4410(1)(i) defines a preschooler as “…a child with a disability as defined in section forty-four hundred one of this article who is first eligible for services as defined in paragraph f of this subdivision but who will not have become five years of age on or before December first of the school year, or a later date if a board establishes such later date for eligibility to attend school. A child shall be deemed a preschool child through the month of August of the school year in which the child first becomes eligible to attend school pursuant to section thirty-two hundred two of this chapter.” (Emphasis added). Since the child was still a preschooler when the CSE IEP was created, he continued to receive services through July and August of the subsequent, 2021-2022, school year, based on his continued status as a preschooler over the summer. Although Education Law §2 (15) defines the beginning of a school year as beginning on July 1, Education Law § 4410(1)(i) extends services for a preschooler into the next school year (July and August) in which a student turns 5-years-old. 68 See 34 C.F.R. § 300.303(a) and 8 NYCRR 200.4. 69 34 C.F.R. § 300.303(b). 70 34 C.F.R. § 300.303(a)(1); see also C.S. v. Yorktown Cent. Sch. Dist., No. 16-CV-9950 (KMK), 2018 U.S. Dist. LEXIS 54742,
2018 WL 1627262, at *12 (S.D.N.Y. Mar. 30, 2018). 71 Ex. DOE 7.
rejected, were a general education classroom, related services only, and SETSS; the reason for the rejection of these options indicated that:
General Education only or with Special Education Teacher Support Services does not appear to be sufficient at this time to meet [Student]'s needs. Although performing comparable to his same-aged peers academically, [Student] presents with difficulties maintaining focus and engagement academically, as both classroom teachers and
[Student]'s mother stated. Thus, Special Education Teacher support services for a period a day or a few periods a day, depending upon what the school offers, within a General Education classroom, is not sufficient. He benefits from having a Special Education Teacher with him, throughout all core subject area classes, to assist in refocusing/redirecting, and reteaching lessons. He will benefit from the individualized supports throughout the day within the Integrated Co-Teaching classroom.
The Special Class program of 12:1:1 within the community school was considered and rejected, as [Student] presents with age appropriate [sic] academic skills. The Special Class program is too restrictive an academic recommendation for [Student] at this time. 72
A second PWN was issued on 6/11/2021 73 outlined the special education services and related services that were documented in the IEP and provided the school location.
e. Ten-Day Notice
Parent sent the CSE a Ten-Day Notice (“TDN”) 74 indicating that she disagreed with the IEP, specifically with respects to Student’s need for a class that was smaller than an ICT
72 Ex. DOE 7-2. 73 Ex. DOE 8. 74 Ex. P-B.
classroom. However, there were no indications that Parent disagreed with the recommended ICT during the CSE. 75 There were several entries documenting Parent’s concern, to include Parent’s request to remove PT, as indicated above in the recommended services. Parent’s assertion of a disagreement with the class size appears to have been made in the first instance in the TDN, and subsequently in the DPC.
f. CSE Constitution and School Psychologist Serving as a District
Representative
Parent alleged in the DPC that the CSE was not validly constituted as “the CSE failed to include a qualified district representative (i.e., someone who is aware of the full continuum of services available to [Student] and has the authority to recommend them) as part of the May 2021 CSE review team. As a result, the CSE failed to consider the full continuum of available services and programs that could provide [Student] with an appropriate education.” 76 In addition, Parent claimed during the DPH that the District Representative was the same person as the school psychologist, and that there was no evidence 77 that the school psychologist was qualified for purposes of participating in the CSE meeting in conformity with 8 NYCRR §200.3(a)(1). Pursuant to 8 NYCRR § 200.3(a)(1)(v):
“a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the
75 There are no requirements for Parent to disagree with the CSE’s recommendations at the CSE meeting, and there was no impropriety or negative inference drawn (vis-à-vis the provision of FAPE) with Parent’s objection to the program for the first time in the TDN. This issue is addressed, infra, with respect to the equities and Parent’s intentions to parentally place Student and communication with the CSE. 76 Ex. P-A2. 77 Tr. p. 129.
availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist.”
There was ambiguity as to which school psychologist qualifications were in dispute as the hearing transcript seemed to focus on school psychologist’s qualifications under 8 NYCRR § 200.3(a)(1)(iv). To complete the record, IHO requested from DOE to provide documentation of the school psychologist’s certification/license status, which is included as Ex. IHO-I for the record. Therefore, I find that the CSE was properly constituted as it relates to the school psychologist who served in that role in the CSE.
Parent alleged that the school psychologist, who was also serving as the district representative as part of the CSE, was not appropriately qualified pursuant to 8 NYCRR §
200.3(a)(1)(v) to serve as the representative because there was no evidence that she was familiar with the continuum of service or had the authority to recommend services outlined therein. I do not find this argument persuasive because a properly licensed or certified school psychologist would be able to speak to the special education needs of Student. The IEP documented the different options available to Student, the CSE rejected a few of those options, considered the consequences of creating an IESP when there was doubt that Student would attend a private school, and the school psychologist participated in the creation of an IEP based on that doubt. The IEP itself provides indications of knowledge and familiarity with the available services outlined in 8 NYCRR § 200.6. Since there appears to be a dispute as to what a school psychologist is ‘qualified’ to do, or has knowledge of, specifically with regard to acting as the district representative pursuant to 8 NYCRR §200.3(a)(1)(v), some discussion is necessary.
From a purely legislative and linguistic interpretation of 8 NYCRR § 200.3(a)(1)(v)
there appears to be some ambiguity with the language. The sentence “who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district” appears to be clear, but the “provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist” seems to imply that school psychologists might not be qualified by the nature of their certification. I do not read the statue this way for two main reasons.
First, I view the concluding sentence of the statue to be independent from the conjunctive ‘provided’ clause. In essence, I read the statute as “a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district…or a school psychologist.” The intervening language relating to the qualifications of the special education teacher or provider are the two categories of individuals to whom the conjunction ‘provided’ applies; the lack of commas in the statute is unhelpful. An argument could be made that the three categories of professionals listed after ‘provided’— to include the school psychologist—must ‘meet these qualifications.’ However, the fact that there is a requirement to meet certain qualifications seems to be a catchall phrase, and it does not exclude the possibility that the qualification has been met by the very nature of the individual’s licensure or certification.
Second, school psychologists are granted specific authorities under the commissioner’s regulations. Pursuant to 8 NYCRR § 200.1(aa), and a school psychologist is authorized to determine when a student does not require an evaluation. Specifically, the statute defines an evaluation as:
Individual evaluation means any procedures, tests or assessments used selectively with an individual student, including a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law, an individual psychological evaluation, except where a school psychologist has determined pursuant to section 200.4 (b) of this Part that a psychological evaluation is unnecessary to evaluate a student of school age, a social history and other appropriate assessments or evaluations as may be necessary to determine whether a student has a disability and the extent of his/her special education needs, but does not include basic tests administered to, or procedures used with, all students in a school grade or class. (Emphasis added).
In addition, 8 NYCRR § 200.1(bb) empowers school psychologists to conduct individual psychological evaluations:
Individual psychological evaluation means a process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations in the student's native language, to study and describe a student's developmental, learning, behavioral and other personality characteristics. (Emphasis added).
A school psychologist has the authority to determine whether it is unnecessary to conduct a psychological evaluation, which leads one to conclude that a school psychologist is qualified and knowledgeable of the continuum of service and has authority to act under
the regulations. It seems, then, that Parent’s allegation in the DPC vis-à-vis the school psychologist’s lack of authority to recommend special education services is speculative and inconsistent with the fact that CSE IEP delineated and discussed several options. It is difficult to argue that a properly certified school psychologist with a permanent certification 78 (Ex.
IHO-I) who is qualified to conduct an individual psychological evaluation is not qualified or knowledgeable in New York States continuum of services pursuant to 8 NYCRR § 200.6; this function is part of a school psychologist’s duties.
There is simply nothing in the record to suggest that Parent’s allegations have merit.
Under New York law the burden of proof is on DOE on all matters in special education litigation pursuant to the IDEA except for the appropriateness of a unilateral private school placement. 79 However, the issue raised here is so basic, that to require the DOE to prove all conclusory allegations in a DPC, without some offer of proof or factual basis, would potentially bring due process complaints to a practical halt. 80
g. Predetermination
Parent alleged in the DPC that the CSE predetermined the outcome of the IEP meeting. 81 A CSE’s consideration of possible recommendations for a student prior to the
78 The requirements for converting a provisional certification to a permanent one can be found at https://www.highered.nysed.gov/tcert/certificate/perm.html#one. 79 Educ. Law § 4404[1][c]. 80 Nevertheless, even if, DOE needed to prove this aspect of Parent’s allegation, I do not find that this potential procedural violation rose to the level of a substantive one considering the IEP recommendations, and the options that were rejected. Whether those recommendations were appropriate is a separate issue from whether those recommendations illustrate an understanding of what is available under the continuum of service. The issue of predetermination is addressed separately, which specifically relates to the allegation in the DPC that the district representative did not have authority to make certain recommendations. 81 Ex. P-A2.
meeting is permitted so long as the CSE is open to the notion that changes may occur during the CSE meeting. 82 The key factor in the CSE’s decision-making relates to whether the District has "an open mind as to the content of [the student's] IEP." 83 DOE may "prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions,"84 and the "active and meaningful" 85 “parent participation undermines a claim of predetermination.” 86 Parent’s participation means to be allowed "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." 87
To find that DOE complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of Student’s IEP. 88 Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process," 89 and this right does not give parents a veto power of IEP recommendation with which parents disagrees. 90
Although Parent disagreed with the DOE placement when she decided to inform the DOE that she would unilaterally place Student, Parent’s opportunity to participate does not
82 T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; see 34 CFR
300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]. 83 T.P., 554 F.3d at 253; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2011], aff'd 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]. 84 DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]. 85 B.K., 12 F. Supp. 3d at 358-59. 86 State Appeal No. 22-092. 87 20 U.S.C. § 1415[b][1]. 88 Cerra, 427 F.3d at 192. 89 D.D-S., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216
[D. Conn. 2006]. 90 T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009].
mean that parental disagreement with the CSE’s IEP and/or placement recommendations can be the basis for a claim of a denial of FAPE on its own. 91 "[A]s long as the parents are listened to, Parent’s right to participate is not infringed, even if the [district] ultimately decides not to follow the parents' suggestions."92
Other than Parent’s communication to the DOE via the TDN that she intended to unilaterally place Student, this disagreement does not amount to a denial of the Parent's meaningful participation in the development of the program. 93 Parent’s concerns were documented in the IEP, 94 and even though Parent wished to discontinue PT services, the IEP indicated that the CSE team members urged Parent to reconsider, which she did.
Consistent with the standard set forth in Rowley, I find that there was no predetermination because “[a] professional disagreement is not an IDEA violation," 95 and "[m]eaningful participation does not require deferral to parent choice," 96 which was communicated to the CSE in the TDN but not when the CSE met.
h. Psychological Evaluation
91 See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P., 2015 WL 4597545 at *8,
*10. 92 E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013]. 93 see E.H. v. Bd. of Educ. of the Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F., 2013 WL 4495676, at *17; DiRocco, 2013 WL 25959, at *18-*20; P.K., 569 F. Supp. 2d at 383; Sch. for Language & Commc'n Dev., 2006 WL 2792754 at *7. 94 Mother lists her occupation in the submitted 2020 federal tax return as “OT,” (Ex. P-2) which likely means ‘occupational therapist,’ but there is no further information in the record to substantiate this. If, however, mother is, in fact, an occupational therapist with the training and knowledge of students with disabilities, the documented parental concerns in the IEP, and lack of substantive disagreement with the CSE’s program recommendation, may be given additional weight vis-à-vis the equities as they related to parental intentions and actual disagreement with the IEP. 95 P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008]. 96 Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006].
There were no indications in the IEPs that Student required additional evaluations to create a program for Student. Nevertheless, Parent obtained a psychological evaluation 97 on
5/22/2022 while Student was attending Private School, and toward the end of the 2021- 2022 school year. The psychologist administered the Wechsler Preschool and Primary Scale of Intelligence (4th edition), which indicated that Student was in the average range of most domains, but moderately low in the areas of communication, ADL, socialization, and adaptive behavior. Student was assessed to have “Verbal Comprehension Index of 99; a Fluid Reasoning Index of 97; and a Full Scale [sic] IQ score of 101, all in the Average range. Overall, his scores ranged significantly, from the bottom of Average to the bottom of High Average.
[His] Verbal scores displayed the greatest range, from the bottom of Average to the bottom of High Average. He displayed his greatest strength on a task requiring him to identify conceptual similarities.” 98
The psychologist recommended “ongoing individualized one-to-one Educational [sic]
and behavioral support to continue and further his coping with the cognitive, behavioral and interactive challenges related to his high levels of activity, impulsivity, and input seeking; and better learn to cope with these challenges, to more consistently perform and his full level of underlying potential. 99 There was no recommendation as to the class size that would be appropriate for Student; the references to Student’s behavior were not documented in the prior IEPs, and there is no evidence in the record of maladaptive behaviors at the time the IEP was created.
97 Ex. P-M. 98 Ex. P-M5. 99 Ex. P-M5-6.
The psychological evaluation’s recommendation of ongoing individualized education could indicate that an ICT class would not provide sufficient supports, but it is unclear. In addition, the evaluation was conducted nearly one year following the CSE IEP’s creation.
After attending Private School for practically the entirety of the 2021-2022 school year, any regression or changes to Student’s needs would not, necessarily, relate back to the CSE IEP’s recommendations and what was known at the time, or when the TDN was filed. The IEP recommendations are not a ‘moving target,’ but rather a ‘snapshot’ of what the CSE team knew, or should have known through additional evaluation, at the time the IEP was created and subsequent communication of intent to unilaterally place Student. There is nothing in the record that would indicate that the CSE did not have sufficient evaluative material to develop the IEP, even with the incomplete social history update, which Parent chose to not contribute to or participate in.
i. Class Size
Private School’s program description indicated that “[e]ach classroom has 10-12 children in the group.” 100 However, Education Director testified “[t]here was a total of 17 students” 101 in the entirety of Private School. Pursuant to the continuum of services section of 8 NYCRR § 200.6(g)(1) “[t]he maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students' individual needs as recommended on their IEPs, provided that the number of 100 Ex. P-C. 101 Tr. p. 26.
students with disabilities in such classes shall not exceed 12 students.” An ICT’s class size limitation only requires the maximum number of students with disabilities that can be in the class, but non-disabled children would increase the total number of students. The hearing record establishes that Parent did not disagree with the CSE determination during the IEP meeting, and the dispute arose, for the first time, when the TDN was sent to the CSE. Of course, this does not mean that the program the CSE designed was appropriate even though there was no parental disagreement at the time of the meeting.
It should be noted that class size and the level of adult support are, generally speaking, unrelated to the IDEA's Least Restrictive Environment (“LRE”) requirement, 102 and that "[t]he requirement that students be educated in the [LRE] applies to the type of classroom setting, not the level of additional support a student receives within a placement." 103 A "less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers." 104 There was no dispute as to DOE’s compliance with the LRE standard, and the issue will not be addressed.
With respects to the class size, the CSE IEP delineated all of Student’s known disabilities, and created an appropriate program to address those needs. Student’s distractibility did not require more intensive interventions, or a smaller class size to address his needs. Although not evidence, DOE’s closing statement articulated and summarized the CSE’s finding, which I find persuasive:
102 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]. See State Appeal No. 23-073. 103 R.B. v. New York Dep't of Educ., 603 Fed App'x 36, 40 [2d Cir. Mar. 19, 2015]. 104 T.C. v. New York City Dep't of Educ., 2016 WL 1261137 at *13 [S.D.N.Y. Mar. 30, 2016].
“The team ultimately recommended an ICT class, as the student presented with difficulties focusing, with fine/gross motor delays, expressive/receptive language delays, and required special education services to maneuver, the general education curriculum, as documented in DOE Exhibit 6-6. The CSE considered alternative, more restrictive programs, including general education only or gen ed with SETSS supports.
The CSE indicates they rejected these alternative options, because the student presented difficulties maintaining focus and engaging academically, so SETSS for a few periods of day would be insufficient. Instead, the CSE recommended an ICT class, which would provide the student an additional special education teacher in core subject classes to assist with refocusing, redirecting, reteaching, as documented in DOE Exhibit 6-21. The
CSE rejected a 12:1:1 class, as the student presented with age-appropriate academic skills, and determined that a 12:1:1 would be too restrictive in line with creating an IEP and a program recommendation in the least restrictive environment.” 105
The IEP was well-designed; incorporated parental concerns; considered the CPSE IEP; acknowledged that Parent intended to parentally place 106 Student and created an IEP instead of an IESP because Student had not yet been accepted to the private school; considered the implications of Student’s status as a preschooler over the summer months obviating the need for a 12-months program; encouraged Parent to maintain PT despite her initial reluctance; placed Student in a class size that was designed to meet Student’s needs; and explained the rationale for its programmatic determination.
j. Educational Director’s Testimony
105 Tr. pp. 112-113. 106 A ‘parental placement’ is one where the parent chooses a private school in lieu of a district-offered school without regard to a district’s proposed program, and no tuition is sought from the school district. A ‘unilateral placement’ is one where the parent disagrees with the school district’s program, informs the district of this private placement, and pursues due process for tuition payment.
In response to IHO’s questioning, Private School Educational Director opined on Student’s CSE IEP and agreed that Student would have made progress at the DOE placement, 107 and that she “wouldn’t say [] [Student] wouldn’t make progress.” 108 Further, she testified that Student “wouldn’t make optimal progress” 109 at the DOE placement as compared to Private School. As stated above, an "appropriate" education, is "not one that provides everything that might be thought desirable by loving parents." 110 School districts are not required to "maximize" the potential of students with disabilities, 111 but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"112 “The IDEA does not entitle a student to the ‘best education that money can buy.’" 113
I find Educational Director’s testimony persuasive, and in-line with IHO’s determination that the CSE IEP was meaningfully calculated to provide Student with a FAPE.
3. No DOE Witnesses
Parent’s Attorney argued that the lack of DOE’s witnesses to defend its provision of FAPE cannot be based on documentary evidence alone. Parent provided several citations that support the position that testimony is required for DOE to meet its burden.
107 Tr. p. 52. 108 Tr. p. 54. 109 Id. 110 Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379. 111 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. 112 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington
Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]. 113 P.G. v. City School District of N.Y., 2015 U.S. Dist. LEXIS 22354, at 57, quoting Walczak, 142 F.3d at 130 (quoting Lunceford
v. D.C. Bd. of Educ., 745 F.2d 1577, 1583, 241 U.S. App. D.C. 1 (D.C. Cir. 1984).
In support of Parent Attorney’s position, in State Appeal No. 23-054 the SRO found that:
“The hearing record does not include meeting minutes, testimony from any committee member other than the student's mother, or a prior written notice describing, among other things, the actions proposed or refused by the district, an explanation of why the district proposed or refused to take the actions, a description of other options that the CSE considered and the reasons why those options were rejected, and a description of other factors that were relevant to the CSE's proposal or refusal.” 114
In L.O. v. New York City Department of Education, the U.S. Second Circuit Court of Appeals was concerned that “…the CSE failed to memorialize how it reached the terms of the IEPs, reviewing authorities and courts are left to speculate…” 115 with regards to the available information presented at hearing. This case was cited in S.Y. v. New York City Department of Education 116 and used the same rationale. Finally, Parent cited R.E. v. New York City Department of Education that held “…that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the
IEP.” 117
Whether testimonial evidence is required by the DOE hinges, first and foremost, on the information included in the District’s documentary evidence, specifically the IEP.
Another factor is Student’s individual needs, and any associated complexities related to
114 State Appeal No. 23-054 pp. 11-12. 115 L.O. v. New York City Dept. of Educ., 822 F.3d 95, pp. 110-111, 2nd Cir., (2016). 116 S.Y. v. New York City Department of Education, p. 576, 210 F.Supp.3d 556 (2016). 117 R.E. v. New York City Department of Education, 694 F.3d 167, p. 185, 2nd Cir. (2012).
those needs. A student with intense educational and supportive needs would require more robust documentation as compared with another student who might not require those extensive supports. When the student’s disability and needs are sufficiently documented along with the District’s articulation through its documents how it would adequately address those needs would be enough for the DOE to meet its burden. In addition, the CSE’s documentation of parental concerns, especially as they related to Parent’s request at the IEP meeting to remove PT from Student’s programming, coupled with the CSE’s recommendation to continue to provide them and Parent’s acquiescence, is indicative of the CSE’s attempts to create a program that was appropriate for Student, and that the CSE appropriately documented parental concerns, and its recommendations.
The cited cases involved more complex educational programs and services that required additional evidence for DOE to meet its burden. In the present case, there is sufficient information for the DOE to explain the reasons for its determination as to Student’s needs.
The Office of State Review previously held that testimonial evidence is not a sine qua non in due process hearings as “there is no requirement that the district must meet its burden through its submission of specific categories of evidence and… the thoroughness of the [] IEP, including statements of the parent's concerns and the CSE's response… provided sufficient evidentiary support and an adequately detailed explanation of the CSE's decisions and recommendations to find that the district met its burden in proving that it offered the student a FAPE…” 118 Nevertheless, the District should be cautious when defending the
118 State Appeal No. 23-090 pp. 21-22.
provision of FAPE on documentary evidence alone because “while the district may have rested on the parent's documents and this bare presentation of its case is not encouraged and, in many instances, may result in a finding that the district failed to meet its burden of proof.” 119
4. Conclusion
As indicated above vis-à-vis class size, the CSE considered and documented its rationale to address all of Student’s needs, and testimonial evidence was not necessary for the DOE to “offer a cogent and responsive explanation for their decisions” in creating that IEP, as it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” 120 “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal." 121
Having conducted a thorough independent review of the IEP, I find that the goals and management needs portion of the CSE IEP provides the supports necessary to address the Student's unique challenges and the ICT program would provide the necessary direct instruction to address the Student's deficits, while allowing the Student to interact with typically developing peers.
119 Id., p. 16. 120 Endrew F., 137 S. Ct. at 1002. 121 Id.
In sum, the record reflects that the CSE developed a thorough and appropriate IEP that included a statement of the Student’s present levels of academic achievement and functional performance, established measurable annual goals designed to meet the Student's needs resulting from the Student's disability and to enable him to make progress in the general education curriculum, and provided the use of appropriate special education services, all in compliance with Federal and State law.
Private School Educational Director’s testimony as to the suboptimal nature of DOE’s placement that would still allow Student to make progress supports the appropriateness of the District’s IEP and placement. Therefore, I find that the DOE has met its burden with the documentary evidence submitted at hearing, that Student’s IEP was reasonably calculated for Student to make educational progress, and that DOE offered Student a FAPE for the 2021- 2022 school year.
Having determined that DOE provided Student with a FAPE, the remaining factors of the Burlington/Carter analysis do not require further consideration, but will be included herein, nonetheless, to complete the record.
B. Appropriateness of The Unilateral Placement (Burlington/Carter Prong II)
A private school placement must be "proper under the Act." 122 This means that the private school must offer an educational program which met the student's special education
122 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
needs. 123 Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." 124 Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" 125
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and when determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." 126 A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 127
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that
123 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). 124 Gagliardo, 489 F.3d at 112. 125Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). 126 Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. 127 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).
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. 128
The DOE argued that Private School was inappropriate because it was not tailored to meet Student’s individual needs. 129 Private School Educational Director testified via affidavit that she is familiar with Student, and Student’s needs, placed Student in a classroom that would address those needs, and described the services Student was receiving at the Private School. 130 Parent submitted academic, 131 counseling, 132 OT, 133 and SLT 134 progress reports,
Private School enrollment contract, 135 and Private School schedule. 136
Based on the evidence presented at the hearing I find that Parents would have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual 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." 137
128 Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65). 129 Tr. pp. 114-116. 130 Ex. P-Q 131 Ex. P-H. 132 Ex. P-I. 133 Ex. P-J. 134 Ex. P-K. 135 Ex. P-D. 136 Ex. P-E. 137 Frank G., 459 F.3d at 364.
C. Equities (Burlington/Carter Prong III)
Although I have determined that the DOE provided Student with a FAPE for the school year in question, it is worthwhile to address the equities to complete the record for potential consideration by the Office of State Review.
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." 138 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 the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. 139
138 Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). 139 E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Here, Parent provided the necessary Ten-Days’ Notice 140 of their concerns with the DOE’s offer of FAPE for the Student for the 2021-2022 school year. Therein, Parent detailed specific concerns, whereby Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School.
By way of relief, Parent seeks direct funding of Private School tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so.” The tuition at the Private School is $100,000.00. 141
There are several issues that give the undersigned pause as to whether the equities favor the Parent.
First, as indicated above, a social history update 142 was created on 3/15/2021 in preparation for Student aging out as a preschooler and for the 5/12/2021 CSE meeting, but it noted that Parent did not respond to the DOE. The update indicated that a notice of social history was sent to Parent on 3/11/2021, and that there were follow-up phone calls (number of calls not documented) on 3/11/2023 advising Parent of the social history meeting; Parent did not keep the appointment. In her testimony, Parent stated that she was “not sure” 143 why she did not attend the meeting but did not dispute that one was scheduled or that she did not attend. The update indicated that Student “has made progress towards his IEP goals with
140 Ex. P-B. 141 Ex. P-D. 142 Ex. DOE 4. 143 Tr. p. 69.
the provision of special education services.” 144 Parent failed to explain the reason she did not cooperate with DOE to effectuate a social history update. A reasonable explanation was based on the documentation in the IEP that Parent intended to parentally place in a private school, and therefore saw no reason for an evaluation to be conducted. This is speculative, and does not excuse Parent’s non-cooperation, but it is a factor to consider as it relates to the equities. It should be noted, however, that the DPC specifically alleges that “the CSE failed to conduct a Social History Update,” 145 which resulted directly from Parent’s noncooperation, but nonetheless attributed to DOE.
Second, it has been held that a "contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and [the court] cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law." 146 Nevertheless, it is curious that the enrollment contract is not dated. Although not a material flaw in Parent’s case, a contract purporting an obligation to pay $100,000 should indicate this information, to include when the obligation was made. Parent testified she did not recall when the contract was signed. 147
Third, I find Parent’s testimony troubling in that she did not recall any discussions as to whether she would be obligated to pay the contracted tuition. The existence of the undated contract shows a purported legal obligation to pay the contracted tuition, but I have doubts whether Private School intended to enforce the contract if DOE prevailed on the issue of FAPE. The intent of the parties executing a contract is an important factor to consider
144 Ex. DOE 4-1. 145 Ex. P-A2. 146 E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]. 147 Tr. p. 64.
because it helps establish whether the contract was created to prove—at hearing—an obligation to pay without the attendant intent to enforce it. “[G]oing beyond the written contract and relying on extrinsic documentary evidence that suggested that the parent was not obligated to pay the private school” 148 is inappropriate, suggesting that the contract should be the only indicia of obligation to pay. However, to arrive at this conclusion under the present facts, and the possibility of collusion between the parties for the sole purpose of obligating the LEA only if DOE does not meet its burden, is a potential scenario clearly envisioned in E.M. v. New York City Department of Education in deciding “whether the arrangement with the school was fraudulent or collusive in any other respect.” 149 In addition, there is no extrinsic documentary evidence in our case, but rather Parent’s own testimony. 150
Parent testified that “if we don't receive fundings [from DOE], then we will get some private loans to -- to pay the school,” 151 but she did not recall how much she would be required to pay Private School if a determination was made that DOE provided Student with a FAPE; 152 Parent later stated, “I don’t know.” 153 Mother testified, that although it was Student’s father who signed the enrollment contract, she explained she was present in the discussions regarding tuition and father’s testimony would not elucidate the discussion. 154
When directly asked whether Parent would be required to pay any tuition if DOE prevailed at hearing, she testified “I don’t know,” 155 but then added that Private School principal told
148 State Appeal No. 23-054, p. 24, citing E.M., 758 F.3d at 456-57. 149 E.M., 758 F.3d at 451. 150 Despite a requirement in the enrollment contract to pay a non-refundable deposit of $1,000 (Ex. P-D1), no payment has ever been made (Ex. P-O). 151 Tr. p. 70. 152 Tr. p. 71. 153 Tr. p. 74. 154 Tr. pp. 77-78. 155 Tr. p. 78.
her that “if the DOE are not going to pay, then [Parents] will have to -- to make some sort of like payment. And I was asking my husband how, and then he -- he told me we are -- we are probably going to take some private loan” 156 (Emphasis added). When asked about the nature of the amount of the private loan Parent would need, she responded “[w]e didn't get into specifics.” 157 When asked whether Parent would be required to pay the contracted
$100,000, she testified “I don’t know” 158 and “I don't know if it's --it's -- I don't know if it's not. I'm not sure.” 159
Outside of the enrollment contract, the question as to the precise dollar figure Parent would be obligated to pay, if any, remains unanswered.
Over Parent Attorney’s objections to IHO’s questions related to general tuition discussions for the 2022-2023 school year to ascertain whether discussions with Private School ever revolved around tuition obligations, Parent testified “I don't know how to answer that question. I don't have that information,” 160 and “I don't remember. I don't know.
I honestly don't know.” 161 Similarly, for the 2023-2024 Parent testified she did not have conversations with Private School about tuition because Student was not yet registered to attend. 162
It would be reasonable and understandable if Parent testified that she was required to pay the tuition in full in the event DOE did not reimburse her if she failed to prevail at the DPH as the contract requires. Parent’s lack of memory on the issue of her obligation to fully
156 Tr. p. 79. 157 Tr. p. 80. 158 Tr. p. 79. 159 Tr. p. 80. 160 Tr. p. 73. 161 Tr. p. 74. 162 Tr. p. 76.
pay the tuition, or any portion thereof, the amount of a purported personal loan, as well as Parent’s demeanor and somewhat evasive responses during her testimony, indicate that there were, in fact, discussions on a different amount owed (if any) irrespective of the enrollment agreement.
Fourth, although Parent’s intent to never enroll Student at DOE is not a factor to consider as it relates to the question of FAPE (and the District’s obligations to provide an appropriate placement) the record supports the fact that Parent always intended to enroll Student in Private School and communicated that intent to the CSE. This issue cannot be adequately addressed because whether the equities favor the Parent is a question that needs to be resolved only if FAPE were denied. There are clear indications in the record that the timing of the stated intent to parentally place Student, which pre-dated the CSE IEP in May 2021 and likely the CPSE IEP in January 2021.
Although the case here does not involve equitable services for an IESP pursuant to Education Law § 3602-C, a recent Office of State Review provides some context with respects to equities and parental intent: 163
“…courts have grappled with the effect of a parent's intention to place a student at a nonpublic school on the district's obligation to provide the student with an IEP. For example, in E.T. v. Board of Education of Pine Bush Central School District, 2012 WL
5936537 (S.D.N.Y. Nov. 26, 2012), after concluding that the district retained an
163 This fact pattern concerns a district’s obligation to provide a FAPE when there are clear indications that the Parent intended to parentally place a student and seek equitable services under Education Law 3602(c)’s dual enrollment provisions. In our case, the fact pattern indicates that DOE created an IEP despite Parent’s stated intent to parentally place Student. It seems that DOE took the more cautious approach by creating an IEP, but Parent’s intent should have implications on DOE’s responsibility to offer Student a FAPE beyond 3602(c)’s mandates.
obligation to offer the student a FAPE, the court found that the "issue of the parents' intent [was] a question that inform[ed] the balancing of the equities rather than whether the district had an obligation to the child under the IDEA" (E.T., 2012 WL 5936537, at *16). In contrast to the court's holding in E.T., at least two federal district courts have found an objective manifestation of the parent's intention to place the student in a nonpublic school as a threshold issue regarding whether a district remained obligated to offer the student a FAPE (see Dist. of Columbia v. Vinyard, 971 F. Supp. 2d
103, 108-10 [D.D.C. 2013] [finding the court's explanation in E.T. "illogical"] [emphasis added]; Shane T. v. Carbondale Area Sch. Dist., 2017 WL 4314555, at *15-*20 [M.D. Pa.
Sept. 28, 2017]” 164
The CSE’s creation of an IEP was clearly the preferred step when there it was not yet certain that Student would be parentally placed because Student was not yet admitted into the private school. DOE did not create an IESP precisely because of this uncertainty, and “Parent was instructed to contact the Committee on Special Education, as well as the private school administrator regarding changing the IEP to an IESP, indicating parental placement.” 165 It is undisputed that Parent did not contact the CSE to request an IESP because there was a later decision to inform DOE via a TDN of a rejection of the DOE’s program and unilateral placement. “As other courts have found, the issue of the parents' intent is a question that informs the balancing of the equities rather than whether the district had an obligation to the child under the IDEA.” 166
164 State Appeal No. 23-101 FN 14. 165 Ex. DOE 6-3. 166 E.T. v. Board of Education, 2012 U.S. Dist. Lexis 167977, p. 50. See generally, R.G. v. New York City Dep't of Educ., 585 F.
Supp. 3d 524.
Had I determined that DOE did not provide Student with a FAPE I would have denied tuition reimbursement "because the authority to grant reimbursement [under the IDEA] is discretionary, [and] 'equitable considerations . . . are relevant in fashioning relief.'" 167 The facts in this hearing constellate to an unfavorable equities determination because there are times when the totality of the circumstances extant here raises the question that if certain parental actions do “not equitably disentitle them to tuition reimbursement, then the third prong of the Burlington test is essentially meaningless.” 168
D. Section 504 Claims
Parents asserted a claim under Section 504 of the Rehabilitation Act for the School Year in question but made no specific allegations during hearing for any claim or relief not subsumed under the provisions of the IDEA. 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].” 169 Under Section 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.” 170
167 E.M., 758 F.3d at 451, citing Frank G., 459 F.3d at 363-64 [**53] (quoting Burlington, 471 U.S. at 374); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). 168 Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, at p. 44. 169 34 C.F.R. § 104.33(a). 170 34 C.F.R. § 104.33(b).
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 an impairment, or (iii) is regarded as having an impairment.” 171 However, only students who have a substantial limitation of a major life activity are entitled to a FAPE. 172 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. 173 The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. 174
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s]
parents or guardian and representation by counsel, and a review procedure.” 175 Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. 176
171 34 C.F.R. §104.3(j)(1). 172 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2). 173 See 28 C.F.R. § 35.108(c)(1)(ii). 174 See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y.
2007). 175 34 C.F.R. § 104.36. 176 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.
I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
ORDERED that, as a declaratory finding, DOE provided Student with a FAPE for the 2021-2022 school year, and the Due Process Complaint is dismissed with prejudice.
DATED: SO ORDERED
8/16/2023
Dr. Oren Varnai, Esq., IHO
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 proceedings 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
8/16/2023
Dr. Oren Varnai, Esq., IHO
EXHIBITS
PARENT EXHIBITS
Exhibit Document Date Pages
A. Impartial Hearing Request 5/8/2023 3
B. Ten Day Notice Letter 8/18/2021 3
C. Program Description 2021-2022 2
D. Enrollment Contract 2021-2022 7
E. Daily Student Schedule 2021-2022 1
F. Attendance Records 2021-2022 1
G. Academic Goals 2021-2022 4
H. Academic Progress Report 2/7/2021 7
I. Counseling Progress Report 6/13/2022 3
J. Occupational Therapy Progress 5/22/2022 3
Report
K. Speech Language Therapy Progress 6/8/2022 2
Report
L. End of the Year Assessment 2021-2022 4
M. Psychological Assessment 5/9/2022 6
N. Behavior Intervention Plan 2021-2022 3
O. Affidavit of Payment 7/6/2023 1
P. Tax Return 2020 2
Q. Testimonial Affidavit of Educational Director Undated 7
R. Testimonial Affidavit of Parent Undated 3
DOE’S EXHIBITS
Exhibit Document Date Pages
1. Social History 12/14/2018 3
2. Pre-K IEP 1/27/2021 17
3. Consent 3/4/2021 1
4. Social History Update 3/25/2021 1
5. Classroom Observation 4/20/2021 1
6. IEP 5/12/2021 22
7. Prior Notice Package 5/14/2021 4
8. School Location Letter 6/11/2021 5
IHO’S EXHIBITS
Exhibit Document Date Pages
I. School Psychologist Certification None 1
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[4] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[5] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[6] R.E., 694 F.3d at 190-91.
[7] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[12] Endrew F., 137 S. Ct. at 1001.
[13] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[14] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[15] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[16] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[17] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[18] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[20] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[21] Endrew F., 137 S. Ct. at 1000.
[26] Ex. DOE 2-4.
[27] Ex. DOE 2-5.
[28] Ex. DOE 2-7. 29 Id.