New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 599551 - NYC: 248221

FINDINGS OF FACT AND DECISION

Student’s Name: 1 [REDACTED] (“student”)

Date of Birth: [REDACTED]

School District: NYC #27

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: 05/11/2023

Date(s) of Hearing: 08/09/2023

Actual Record Closed Date: 08/17/2023

Date of Decision: 08/24/2023

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 08/09/23

For the Student:

[REDACTED] (“Parent’s Counsel”), [REDACTED] (“Parent”), [REDACTED] (“Teacher”)

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 May 11, 2023. (Ex. A).^[2] In the DPC, the 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”) for the 2022-23 school year. (Ex. A). Parent unilaterally placed the student in a private school (“Private School”) and is seeking funding^[3] for the tuition there for the 2022-23 10-month^[4] school year. (Id.).

I was appointed on May 15, 2023. On June 16, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the parties indicated that they were interested in possible settlement but needed more time for the DOE to complete their investigation. (See PHC Transcript). At a status conference on July 14, the DOE indicated that they still had not completed their investigation and needed more time. (SC Transcript 7.14.23). At a status conference on July 25, the DOE indicated that they still had not gotten a recommendation to settle the case. (SC Transcript 7.25.23). At that time, the parties jointly requested and were granted an extension for witness availability and a hearing date was set. (SC Transcript 7.25.23). Later that day, pre-hearing orders were sent to the parties via email. (See Pre-hearing Orders Email).

A virtual due process hearing (“DPH”) was held on August 9, 2023. It was a closed hearing. The student’s mother (“Parent”) was present and represented by Parent’s Counsel. The DOE Representative was also present. At the DPH, the DOE entered no exhibits^[5] and called no witnesses. (Tr. 21).^[6] Parent entered into evidence twenty exhibits (A-T) without objection. (Tr. 22-24). Parent presented testimony from one witness at the hearing: the student’s teacher (“Teacher”).^[7] The DOE did not cross examine the Parent’s witness and they waived their opening and closing statements. (Tr. 27-28, 42-43). Parent’s Counsel gave oral closing arguments on the record. (Tr. 43-38). The record was closed on August 17, after receipt of the hearing transcript.

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., and the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

The student was in the fourth grade during the school year at issue and classified as a student with a Speech or Language Impairment. (Ex. A-1). The student has been medically diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Inattentive Type, a Language Disorder, and Specific Learning Disorders with Impairments in Reading, Writing, and Mathematics. (Ex. A-1-2; F-5). On June 24, 2022, the DOE convened a meeting of the committee on special education (“CSE”) to develop an individualized education program (“IEP”) for the student for the 2022-23 school year. 8 (Ex. A-2; C-23). The 6/24/22 IEP offered an integrated co-teaching (“ICT”) class with Special Education Teacher Support Services (“SETSS”) and speech language therapy (“SLT”) (Ex. A-2; C-16), which was essentially the same (or very similar) to what had been offered the prior two school years and had resulted in the student’s declining academics and mental health (Ex. A-2; D-13; E-6). 9 On August 17, 2022, Parent sent the DOE a Ten-Day Letter, providing notice of her concerns with the IEP and her intent to enroll the student at Private School and seek public funding for the 2022-23 school year. (Ex. B). The district failed to substantively respond to Parent’s concerns and the student was unilaterally placed at Private School for the 2022-23 school year. (Ex. A-2, 4). Following an additional CSE meeting in April of 2023, the student was publicly placed at Private School by the DOE for the remainder of the 2022-23 school year. (Tr. 26, 36-38).

ISSUES

Parent contends that the DOE failed to offer the student a FAPE for the 2022-23 school year on procedural and substantive grounds. (Ex. A). 10 Parent further contends that the Private School is an appropriate placement for the student. (Ex. A-4). By way of relief, Parent seeks an award of tuition funding for the student’s attendance at Private School for the 2022-23 10-month school year. (Ex. A-4). The total tuition for the year was $67,513, and Parent is requesting that $3000 be reimbursed and the balance be funded directly to the Private School, less any amount already paid pursuant to the central

8 Parent participated in the CSE meeting. (Ex. C-23). 9 The main difference was the addition of five periods of SETSS per week. (Compare C-16 with D-13; E-6). The record contains conflicting information about whether the 6/24/22 IEP added SETSS for the first time, or merely increased the weekly SETSS sessions from four to five. The previous IEP in evidence does not contain SETSS. (Ex. D-13). However, the 6/24/22 IEP mentions that there was an additional IEP from January 22, 2022, that is not in evidence (Ex. C-2) and that the student received SETSS on his previous IEP (Ex. C-8). The DPC claims that only one session was added in the 6/24/22 IEP. (Ex. A-4). Accordingly, it appears that the 1/22/22 IEP must have added four weekly sessions of SETSS, and then that weekly number was increased to five on the 6/24/22 IEP. 10 The DPC includes allegations that the DOE continued virtually the same program (with one minor change) from the previous year despite the student’s lack of progress, poor grades, and performance below grade level, that the operative IEP did not contain sufficient remedial services to bridge the gap, and that the IEP incorporated many of the findings of the student’s neuropsychological evaluation while ignoring its program recommendations, such as the Orton Gillingham or similar multi-sensory instructional method, small group setting, grouping with peers of similar profiles, and increased individual and group SLT. (Ex. A-2-3). based support team (”CBST”) placement of the student at the Private School in April or May of 2023. ^[11] (Ex. A-4; Tr. 26-27, 31, 47). Although the DOE would not explicitly concede a denial of a FAPE or that Private School is appropriate (Tr. 43), they offered no witnesses, did not cross-examine Parent’s witness, and waived their opening and closing statements (Tr. 27-28, 31, 41-43). Furthermore, they agree that the student was directly placed at the Private School at the end of the school year at issue (Tr. 26-27) and have alleged no facts which would suggest that the placement the DOE found appropriate towards the end of the school year would not have been appropriate in September of the same school year. Nor have they disputed any of the Parent’s allegations or the requested remedy or alleged any acts on the part of the Parent that would weigh against her in terms of the equities.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact. ^[12] The 6/24/22 IEP contains results from a number of standardized tests^[13] which indicate that the student had been progressing slowly but steadily in English Language Arts (“ELA”) in the last year or more prior to the CSE meeting. (Ex. C-1-2). Between September 2021 and April 2022, the student’s Fountas and Pinnell reading level went up from level B to level E. (Ex. C-1). Between November 2020 and June 2022, his SPIRE^[14] test results improved drastically. (Ex. C-1-2). Results of math assessments showed nonlinear improvement as well. (Ex. C-2). The 6/24/22 IEP indicates that the student was re-evaluated by the DOE in January of 2022, and privately evaluated in February and March of 2022. (Ex. C-2). The IEP notes that the student’s functional levels were below grade expectations in vocabulary, word attack, expressive writing, and math problem solving but on grade level in math computation and numerical operations. (Ex. C-4).^[15] Ultimately, the IEP notes that the student “works well in a whole class, small group, and partner setting” and enjoys positive reinforcement. (Ex. C-7). It notes that the student struggles with focus and attention, requires repeated directions, improves with repetition of previous content, and needs to work on raising his hand for help. (Ex. C-7). The IEP notes that the student “has shown improvement in all academic areas, but is able to work much more quickly and independently on math tasks.” (Ex. C-7).

The IEP quotes from the private neuropsychological evaluation^[16] that the student’s “academic functioning is well below expected levels, measuring at the preschool to kindergarten level in reading, written expression and mathematical tasks with a language component.” (Ex. C-2-3). It continues, stating that the student’s spelling and math skills are at the first-grade level. (Ex. C-3). It notes the neuropsychological evaluator’s concern that the student is still so far behind even after receiving several years of special education support. (Ex. C-3). The IEP notes the neuropsychological evaluator’s observation that the student “has not made meaningful academic progress since his initial special education evaluations in 2019. In fact, it is apparent that the gap between [the student] and his peers has widened. Now that [the student’s] skills are being compared to children in the second grade (as opposed to kindergarten when he was previously evaluated), his need for a more specialized academic setting with intensive academic supports is even more pronounced.” The IEP notes that the Parent and neuropsychologist recommended a specialized placement in a non-public school (“NPS”). (Ex. C-6, 8). The IEP does not give any explanation for the neuropsychologist’s determination that the student’s academic functioning was significantly lower than what the district found it to be, nor were there any DOE witnesses at the hearing to testify to that.

The neuropsychological report states that an ICT class is insufficient for the student because “now that he is approaching the third grade, writing and reading is a crucial element of all his classroom activities; he demonstrated deficits across all reading, writing expression, and language mediated math concepts. It is crucial for [him] to develop these skills so that he does not continue to fall behind his classmates. In addition, [the student’s] learning disorder in mathematics is notable: he struggles to complete applied and computational math problems beyond a first-grade level. It is of primary importance that [he] is placed in a classroom with peers who have commensurate intellectual abilities and who do not present with behavioral difficulties. In addition, typical special education teacher support services (SETSS) will be inadequate to shore up his reading, writing, and mathematical abilities as his academic skills have remained well below grade level. It is for these reasons that [the student] requires placement in a smaller, nurturing educational environment where he will have the opportunity for instruction with educators who are expert in implementing evidence-based interventions with children with learning disabilities. Specifically, this should include a classroom that utilizes an OrtonGillingham/Lindamood Bell-based (or comparable method), multi-sensory approach to academic instruction throughout the day in a small group setting with peers with commensurate overall cognitive abilities. (Ex. F-5). The 6/24/22 IEP does not include this important part of the neuropsychological evaluation report, nor does it address the neuropsychologist’s opinion that an ICT program and SETSS are insufficient. The neuropsychological report also states that the student “urgently requires increased speech-language therapy services that are provided in both an individual and group format.” (Ex. F-5). This recommendation is not addressed in the IEP.

The 6/24/22 IEP notes that an assistive technology (“AT”) evaluation was conducted on June 2, 2022, which recommended AT. (Ex. C-3). The AT evaluation noted that the student “struggles with reading text on grade level …[which is] a barrier to [his] ability to respond[] to comprehension based questions as well as be as independent[] as possible when completing math problems.” (Ex. C-3). The AT evaluation recommended use of a touch tablet with the support of an e-text reader. (Ex. C-3). 17 The IEP also discusses results of a June 13, 2022, ICT classroom observation, during which the student participated in the lesson, raised his hand to answer questions, and tried his best. (Ex. C-3). It notes that although the student appeared distracted at times, he was able to refocus and seek help when needed. (Ex. C-3). During this classroom observation, there were 27 students in the class and one teacher. (Ex. C-3). The IEP indicates that the student had been receiving SLT twice per week (once individually and once in a group of three), and that he had made progress using a multi-sensory approach. (Ex. C-5). The IEP indicates that the student had improved his ability to decode and encode fluently, but that he still has difficulty with phonemic awareness and his skills in that area are below grade level. (Ex. C-5). The IEP notes that the same SLT mandate is recommended, 18 but with a focus on phonemic awareness tasks. (Ex. C-5-6).

The IEP reflects areas of Parent concern that were expressed to the CSE. (Ex. C-6). One noted concern was Parent’s disagreement with the occupational therapy (“OT”) evaluation. (Ex. C-6). The OT evaluation noted that the student “performs all fine motor tasks with adequate dexterity to manipulate school materials. … His handwriting is legible and he writes and copies at an adequate pace. Parent concern regarding visual processing and handwriting were not found to be areas of difficulty during the evaluation.” (Ex. C-8). Parent expressed concern about the student’s writing and drawing abilities at the CSE meeting (Ex. C-6) and requested an independent OT evaluation (Ex. C-7). 19 Parent also expressed a concern regarding the need for a picture chart/checklist in school, which the CSE agreed to incorporate. (Ex. C-6). The IEP also reflects Parent’s request for a 12-month program but the CSE’s determination that the student “does not present with substantial regression to warrant 12 months of service at this time.” (Ex. C-6). 20 The IEP reflects that Parent’s Counsel requested an additional SETSS session (for a total of five), with research-based interventions, and the CSE agreed to incorporate that request. (Ex. C-6). Parent and CSE discussed the student’s classification, and given the neuropsychological results, the CSE decided that the same classification would continue. (Ex. C-6). 21 Regarding class sizes, at the CSE meeting Parent’s Counsel questioned whether a larger class contributes to the student’s distractibility. (Ex. C-6). The CSE responded that the student has preferential seating, small groups, and individual support and, in their opinion, it does not appear that the size of the class affects the student’s attention. (Ex. C-6). Parent expressed concern regarding the consistency of the provided services, and the CSE encouraged more consistent communication between Parent and the student’s providers. (Ex. C-7). The 6/24/22 IEP does not explicitly mention the Parent’s concerns contained in the December 2021 social history, which include the fact that the pace of the ICT class is too fast for the student, he is unable to complete his work, and is falling behind (Ex. J-1-2).

The 6/24/22 IEP recommended management needs of:

17 Parent agreed with the AT evaluation. (Ex. C-6). 18 Presumably this recommendation came from the student’s SLT provider, but that is unclear from the face of the document. 19 The record does not contain either the DOE OT evaluation or an independent one, but the lack of OT has not been raised by Parent in the DPC, so it is not at issue in this case. 20 The lack of a 12-month program has not been raised by Parent in the DPC, so it is not at issue in this case. 21 The IEP reflects that Parent wished to confer with counsel about the classification and, if needed, would request a reconvene of the CSE at a later time. (Ex. C-6). The student’s classification is not at issue in this case.

*Small group and/or one-on-one instruction

*Preferential seating

*Separate location for testing

*Extended time for testing

*Simplified/repeated directions and instructions

*Non ELA test questions read and re-read as needed

*Use of visual aids and manipulatives

*Movement breaks

*Verbal and non-verbal teacher prompting

*Positive reinforcement

*Modified/simplified classwork, homework, and tests

*Access to a visual alphabet and sound chart

*Verbal and non-verbal refocusing prompts

*Directions repeated, rephrased, and/or broken-down

*Use of assistive technology - tablet with the support of e-text reader ^[22] (Ex. C-9). The IEP contains goals for executive functioning and organization, decoding, reading comprehension, writing, math, and phonemic operations. (Ex. C-11-15). The entire list of goals in the 6/24/22 IEP is identical to those in the 11/16/21 IEP, with one addition (to use a checklist to organize materials with packing and unpacking). (Compare Ex. C-11-15 with D-7-12). Approximately half the goals are very similar to those in the 11/23/20 IEP as well. (Compare Ex. E-4-5). The 6/24/22 IEP reflects the CSE’s determination that the student “is expected to make slow but steady progress within the general education curriculum given the support of an integrated co-teaching classroom, in addition [sic] support of special education teacher support services (SETSS), speech therapy and initiation of assistive technology device.” (Ex. C-9). The 6/24/22 IEP indicates that the CSE considered a general education setting with related services only, or SETSS only, but rejected those options due to the student’s academic and speech deficits. (Ex. C-23). Additionally, the CSE considered the Parent’s request for an NPS placement but rejected it because they found that “while [the student] is not on grade level he is making improvements with current supports in place.” (Ex. C-23). The IEP reflects that Parent and Parent‘s Counsel agreed to the increase in SETSS. (Ex. C-23).

The student’s final report card for the 2021-22 school year shows that he received “1s” (well below standards) in reading and writing for all four marking periods of the school year. (Ex. G-1). He received “2s” (below standards) in Listening Speaking and Language, science, and social studies. (Ex. G-1-2).^[23] In a teacher report from January 2022, it indicates similar performance, with a kindergarten grade equivalence in reading, and second grade level in math. (Ex. H-1-2). In a teacher report from May 2022, it indicates performance at a 2 (below grade level) in reading, writing, and oral language, with a grade equivalence of first grade. (Ex. I-2-3). It also indicates that the student’s math computation and numerical operations were on grade level but his math problem solving was below level. (Ex. I-3). Overall, the teacher estimated that in May of 2022, the student’s overall grade level for math was third grade (which would be above his grade level). (Ex. I-2). There is no explanation in the record for the difference between these scores and those reflected on the student’s report card and on the 6/24/22 IEP.

On August 12, 2022, Parent signed an enrollment contract with Private School for the 2022-23 10-month school year. (Ex. T). The contract does not provide the exact amount of tuition, but states that Parent will pay the school a monthly tuition rate approved by the Commissioner of Education, which will be approximately $6,448.10 per month. (Ex. T-2, 4). This amount varies slightly from the final tuition amount. (Compare Ex. T-2 with R-1). The contract provides that “[i]f parents are denied payment by a final unappealed decision resolving their claim for prospective payment of tuition, parents will remain responsible for prospective payment of tuition costs and will complete a new payment schedule.” (Ex. T-4). According to a tuition affidavit in evidence, Parent has paid $3,000 towards the student’s attendance during the 2022-23 school year and still owes the balance of $64,315. (Ex. R-1). The total tuition charged for the school year was $67,315. (Ex. R-1).

Private School serves students from preschool through 8th grade and focuses on the development of language. (Ex. K-1; S-2). Its curriculum is aligned with New York State learning standards (Ex. K-1), and it is on the list of State-approved NPS. Private School has self-contained classrooms with a 12:2:2 student-teacher ratio. (Ex. K-1). Classes are grouped by the students’ functional grade levels and include two certified special education teachers and two teaching assistants.^[24] (Ex. K-1; S-2; Tr. 34-36). The small student-teacher ratio allows for small group and individual instruction. (Ex. K-1). Daily instruction includes several periods per day of reading. (Ex. K-1). Private School utilizes their own language and literacy instructional program that incorporates aspects of various “phonics, literature-based and leveled reading programs.” (Ex. K-1). The school also offers a social skills program, technology (iPads and Promethean^[25] board technology), related services (SLT, OT, physical therapy, counseling, and auditory training), classroom viewing opportunities for parents, and monthly parent training programs. (Ex. K-2). Related service providers are New York State licensed. (Ex. S-2). Ongoing professional development is offered to Private School staff, including “speech and language strategies, balanced literacy, the benefits of utilizing visual aids, behavior management and social-emotional learning.” (Ex. S-2).

Intake at Private School involved a review of the student’s records and IEP, a screening with a special education teacher and speech pathologist, a parent interview, and a tour of the school. (Ex. S-2). The student’s screening was done in August of 2022. (Tr. 38).

The student’s class schedule at Private School included social skills training, physical education, ELA, social studies, guided reading, phonics (Wilson Fundations 26), technology, math, science, writing, music, character education, IXL/Skill Development,^[27] art, hobbies,^[28] and homeroom. (Ex. L-1-2). He

26 This provides systematic and explicit reading and spelling instruction. (Ex. O-2). received SLT four times per week (thrice individually and once in a small group).^[29] (Ex. O-1; S-2). Private School accommodated the student’s management needs, such as consistent teacher support, positive reinforcement, a multimodal teaching approach with emphasis on visual aids and verbal cues, simplified language, extended time, teacher modeling, simplified tasks, repetition of information, small group and individualized instruction, hands-on activities to promote active learning, teacher encouragement and verbal praise, verbal reminders and on-task focusing prompts, and peer modeling. (Ex. O-1-2; S-2-3). A token economy system was also implemented for behavior management. (Ex. O-2; S-3). Additional instructional strategies were used during the student’s phonics instruction, “such as tapping out the sounds, looking at the pictures for clues and getting his mouth ready,” breakdown of reading tasks, and provision of response choices during spelling. (Ex. O-2). In addition to Wilson Fundations, the student also received daily instruction using the Wonders^[30] and Reading A-Z ^[31] programs. (Ex. O-2). During those lessons, he benefited from re-reading, simplified language, verbal reminders, refocusing prompts, breakdown of tasks, a graphic organizer, a brainstorming web, and visual aids. (Ex. O-2). The student was working on the third grade Wonders program. (Ex. O-2).^[32] In math the student was working through the third grade Go Math program. (Ex. O-3). For math, the student required choices, teacher scaffolding, verbal cues, visual aids, slower paced instruction, small group and individualized instruction, simplified language, manipulatives, and use of the CUBES ^[33] strategy. (Ex. O-3).

The student has made progress at Private School. According to a June 27, 2023, progress report, the student made at least some progress in all his IEP goals, although several of the goals indicated less than anticipated progress. (Ex. M-2-5). A progress report from July 27, 2023, shows that the student has progressed in his ability to copy and write with accuracy, to take notes, to pack up needed items for home and unpack in the morning, to listen to a text and answer comprehension questions, to read second grade materials with greater fluency and expression, to answer higher level “WH” questions, and to follow directions, and his phonological awareness has also improved. (Ex. N-1-3). As of March 1, 2023, the student was at an instructional level of F in the Reading A-Z program, and he remains at that level. ^[34] (Ex. O-2; S-3). The student “has demonstrated slow, but steady progress in all areas of classroom functioning,” including social skills. (Ex. O-4; S-4-5). According to Teacher, the student has improved his ability to “decode and encode c-v-c words, and words that contain digraphs, bonus letters, blends and glued sounds.” (Ex. S-3).

In Teacher’s opinion, the 6/24/22 IEP^[35] was not appropriate because it would not provide “sufficient instructional or behavioral support for [the student] to make meaningful progress.” (Ex. S-5). Teacher believes the Private School program is appropriate. (Ex. S-5).

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 Individualized Education Program (“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). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. 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 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)].

When an IEP team fails to consider a specific classroom ratio despite evidence that the student requires a specific ratio to receive educational benefits, the district violates the IDEA. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 81 (2d Cir. 2014). A program ratio in which a student would be able to function but would be unable to learn new skills is inappropriate and denies a student a FAPE. See C.L. v. New York City Dep’t of Educ., 552 F. App’x 81, 82 (2d Cir. 2014) affirming 2013 U.S. Dist. LEXIS 3474 (S.D.N.Y. 2013) (where the evidence demonstrated that the student required 1:1 instruction to learn new skills but the CSE proposed a 6:1:1 class in which the student may have been able to function but not learn).

Generally, an IEP need not specify a particular instructional methodology. Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. Oct. 29, 2014); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. July 29, 2014); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. July 24, 2013). However, “when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’” A.M. v. New York City Dept. of Educ., 845 F.3d 523, 543 (2d Cir.

2017) citing R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) and C.F. v. New York City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014). If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member to rely on leaving the methodological question to the discretion of the teacher implementing the IEP. A.M., 845 F.3d at 544-45. The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus." R.E., 694 F.3d at 194.

A student’s progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student’s rate of progress. See H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App’x 64, 66-67 (2d Cir. 2013); Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 (S.D.N.Y. 2010); M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-16 (S.D.N.Y. 9/29/08); “Guide to Quality Individualized Education Program (IEP) Development and Implementation,” at p. 18, Office of Special Educ. Mem. (Dec. 2010).^[36] The fact that a student has not made progress under a particular IEP does not automatically render the IEP inappropriate, provided it is based upon consideration of the student’s current needs at the time the IEP is formulated. See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153-54 (10 Cir. 2008); Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995); S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10 (S.D.N.Y. 12/8/11); D. D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *12 (E.D.N.Y. 9/2/11); J.G. v. Kirvas Joel Union Free Sch. Dist., 777 F.Supp.2d 606, 650 (S.D.N.Y. 2011). However, “if a student had failed to make any progress under an IEP in one year courts have been ‘hard pressed’ to understand how the subsequent year’s IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year.” Application of a Student with a Disability, Appeal No. 23-117, quoting Carlisle Area Sch. Dist., 62 F.3d 520, 534 (3d Cir. 1995); N.G. v. E.L. Haynes Pub. Charter Sch., 2021 WL 3507557, at *9 (D.D.C. 7/30/21); James D. v. Bd. Of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F.Supp.2d 804, 827 (N.D. Ill 2009).

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).

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 test.

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, 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, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, and 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).

ANALYSIS AND CONCLUSIONS OF LAW

Prong 1

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE presented no witnesses to dispute the Parent’s claims and/or to provide “a cogent and responsive explanation for their decisions” in drafting the IEP. This is especially critical here because the IEP itself contains conflicting information about the student’s present levels of performance and rate of progress. The IEP also incorporates many of the findings of the neuropsychological evaluation but then recommends a program inconsistent with its recommendations. Without testimony from a CSE member to explain those decisions, there is insufficient information in the record to justify that deviation. Furthermore, the DOE waived their opening and closing statements, so they have not provided any legal arguments in defense of the provision of a FAPE. For these reasons, I am constrained to find that the DOE failed to offer the student a FAPE for the 2022-23 school year.

Moreover, a review of the record herein establishes that the weight of the evidence supports such a conclusion. The DOE failed to offer the student an educational program reasonably calculated to produce educational benefit for the 2022-23 school year, as they offered a program that was substantially similar to the previous program (including nearly identical goals). In doing so they failed to address the student’s lack of progress in a similar program, failed to address the fact that the student was performing significantly below grade expectations (and would likely continue to lag behind at a similar rate), and failed to address the neuropsychologist’s determination that the recommended program would be inappropriate for the student. The fact that the CSE decided to publicly place the student at Private School in the spring of 2023 also indicates their opinion that the program recommended in the 6/24/22 IEP was ultimately not appropriate. For these reasons, I find that the DOE failed to offer the student a FAPE for the 2022-23 school year.

Prong 2

I find that Parent has met their burden in proving that the Private School offers an educational program which meets the student’s need under Prong II of the Burlington/Carter standard. Here, the weight of the evidence establishes that the student’s individual special education needs are addressed by the Private School and that the instruction offered is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note, again, that the DOE has made no arguments challenging the appropriateness of the unilateral placement, nor could they reasonably do so as the CSE has recently decided to publicly place the student at Private School. Furthermore, the DOE has alleged no change in circumstanced between September and April that would explain why what was clearly appropriate towards the end of the school year was not appropriate at the beginning. Moreover, I find that the Parent’s witness was credible, that the student’s program is being offered by appropriately qualified individuals, and that the student has made some progress at the Private School. ^[37]

Prong 3

The equities here favor Parent. They have been fully cooperative with the DOE. They participated in the relevant CSE meeting. They provided their private neuropsychological evaluation to the DOE. Furthermore, they provided the necessary Ten-Day Notice of their concerns with the DOE’s failure to offer a FAPE for the 2022-23 school year. The DOE has made no allegations of any actions on the part of Parent that would weigh against them in terms of the equities. I find no issue with the reasonableness of the tuition associated with the Private School, nor has it been challenged by the DOE. Accordingly, there is no basis in the record for any reduction of the requested relief, based on equitable considerations. Thus, equity demands that the DOE fund the student’s Private School tuition for the 2022-23 school year. That funding should include $3000 in reimbursement to the Parent, and the balance of the yearly tuition ($67,513) funded directly to Private School, less any amount already paid pursuant to the student’s direct placement at the school by the CBST in the Spring of 2023.

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 Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. Parent’s claim for tuition funding for the student's unilateral placement at the Private School is GRANTED for the 2022-23 10-month school year as follows: The New York City Department of Education shall reimburse the Parent for any amount paid to the Private School for the 2022-

23 school year, upon proof of payment. Additionally, the New York City Department of Education shall fund the balance of the 2022-23 tuition at Private School by paying the school directly, upon receipt of invoices for the student’s attendance there during that designated period.

Total direct payment to the Private School shall be reduced by any amount already paid pursuant to the student’s direct placement by the CBST at the Private School, and the total amount paid shall not exceed $67,315.

SO ORDERED.

DATED: August 24, 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

PARENT EXHIBITS

A. Due Process Complaint 5/11/23 5 pages

B. Ten-Day Notice 8/17/22 3 pages

C. IEP 6/24/22 23 pages

D. IEP 11/16/21 20 pages

E. IEP 11/23/20 11 pages

F. Neuropsychological Evaluation April 2022 11 pages

G. Final Report Card June 2022 2 pages

H. Teacher Report 1/13/22 4 pages

I. Teacher Report 5/11/22 6 pages

J. Social History 12/9/21 3 pages

K. Private School Program Description Fall 2022 2 pages

L. Class Schedule 2022-23 2 pages

M. Private School Progress Report for IEP Goals 6/27/23 5 pages

N. Private School Quarterly IEP Progress Report 7/27/23 3 pages

O. Private School Annual Review Classroom Report 3/1/23 4 pages

P. Private School Annual Review Speech/Language Report 3/13/23 4 pages

Q. Private School Acceptance Letter 8/22/22 2 pages

R. Tuition Affidavit 4/10/23 1 page

S. Teacher Direct Testimony Affidavit 7/31/23 5 pages

T. Private School Contract – 2022-23 8/12/22 4 pages

DOE’S EXHIBITS

- - - -

IHO’S EXHIBITS

- - - -

Footnotes

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] Parent is seeking a combination of reimbursement and direct funding. (Tr. 31, 47).

[4] Although the Private School acceptance letter states that the student was accepted for the 12-month school year (Ex. Q-1), I believe that is a clerical error, as the rest of the evidence in the record establishes the student’s attendance starting in September of 2022 (Ex. R-1; T-2; Tr. 25, 38-39).

[5] A more detailed list of the admitted exhibits is attached as Appendix A, “Documentation Entered into the Record,” to this decision.

[6] The hearing transcript will be referred to as “Tr.” followed by the page number within the transcript.

[7] Direct testimony was presented by affidavit (Ex. S) and Teacher appeared briefly at the hearing to answer the IHO’s questions. Teacher has a master’s degree in Elementary Education and Special Education and has been teaching at Private School for fifteen years. (Ex. S-1).

[11] The exact date of public placement at the Private School is not clear – the CSE met in April 2023 and deferred the student to the CBST for placement at an approved non-public school (“NPS”). (Tr. 26, 36-38). Subsequent to that deferral, the student was “placed” at Private School (where he was already attending) such that his enrollment status shifted from a private placement to a public one. (Id.). When exactly that shift in status was completed is not clear from the record. Although DOE Representative believed it happened on May 1, Parent’s Counsel and Teacher seemed unsure about the timeline. (Id.).

[12] The facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.

[13] These results appear to come from teacher progress reports in evidence as exhibits H and I.

[14] This is a response to intervention (“RTI”) program in which the student participated starting November 2020. (Ex. C-4).

[15] It is unclear from the IEP on what assessments these conclusions were based.

[16] The evaluation was conducted by a licensed clinical neuropsychologist (Ex. F-7) and included a number of assessment methods, including behavioral observation, clinical and parent interviews, review of records, Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI-6), Behavior Assessment System for Children (BASC-3), Behavior Rating Inventory of Executive Function (BRIEF-2), Child and Adolescent Memory Profile (ChAMP), Clinical Evaluation of Language Fundamentals (CELF-5), Differential Ability Scales (DAS-II), Grooved Pegboard, Kaufman Test of Educational Achievement (KTEA-3), A Developmental Neuropsychological Assessment (NEPSY-II), and Wechsler Intelligence Scale for Children (WISC-V). (Ex. F-2). The results were found to be an accurate representation of the student’s functioning. (Ex. F-2).

[22] With the exception of AT, all these management needs are carried over from the 11/16/21 IEP. (Compare Ex. D-5).

[23] He also received some “2s” in Academic and Personal Behaviors and Social-Emotional Development, but the final grades are cut off on the copy in evidence. (Ex. G-2). By the end of the year, the student had received “3s” (proficient) in math, physical education, visual art, and technology. (Ex. G-1-2).

[24] Teaching assistants are also licensed in New York. (Ex. S-2).

[25] It is unclear from the record what this entails.

[27] It is unclear from the record what this class entails.

[28] This is a weekly period “to facilitate peer socialization and attend assemblies.” (Ex. K-2).

[29] Private School did a speech language evaluation of the student in March of 2023. (Ex. P-1). The evaluation does not contain a specific recommendation but rather states that “determination of services are to be discussed at the CSE meeting.” (Ex. P-4).

[30] This is a literature-based reading and language arts program. (Ex. O-2).

[31] This is a leveled reading program. (Ex. O-2).

[32] This is somewhat contradicted by other information in the record. In Teacher’s affidavit it states that the student is currently working on first-grade level content in reading and spelling. (Ex. S-3).

[33] This requires the student “to circle the important numbers, underline what the question is asking, write out the equation and identify key words. (Ex. O-3).

[34] It is unclear from the record whether the Reading A-Z levels are equivalent to the Fountas and Pinnell levels, but if so, then between April 2022 and March 2023, the student’s functional level increased one step (from E to F). (Compare Ex. C-1 with O-2).

[35] Although the affidavit states that this was based on the April 2022 IEP, he clarified at the hearing that he meant the 6/24/22 IEP. (Tr. 36).

[36] Available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEP guideDec2010.pdf.

[37] Although I find sufficient evidence in the record to support the appropriateness of the Private School program for the school year at issue, I am concerned that the student has shown less progress than expected in that program. Even with small class sizes and additional supports, the student has seemingly made less reading progress at Private School than he was making in his ICT class; between September 2021 and April 2022, the student’s Fountas and Pinnell reading level went up from level B to level E in his public program (Ex. C-1), but (assuming equivalence of the rating scale) only went up one more level during his entire year at Private School (Ex. S-3). Furthermore, the student made less progress than expected in the majority of his IEP goals. (Ex. M-2-5). Accordingly, if adjustments are not made to the student’s curriculum and supports at the Private School and his progress continues to underperform expectations, it could be possible that Private School ceases to be appropriate in the future.