New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 601871 - NYC: 249766

FINDINGS OF FACT & DECISION

Case No. City/State: 249766 / 601871

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

School: [REDACTED] (hereinafter referred to “Private School”)

Hearing Dates: 11/14/23

Actual Record Close: December 13, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: December 27, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

[REDACTED], ESQ., Attorney — Student

[REDACTED], [REDACTED], Parent Representative — Student

[REDACTED], Director of Admissions, Private School — Student

[REDACTED], Assistant Head of School, Lower and Middle — Student

School, Private School — Student

[REDACTED], ESQ., Attorney — DOE

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) dated June 30, 2023 regarding the 2023/24 school years (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to recommend and implement an appropriate program. (P-Ex.A). The Parent has requested direct tuition funding to Private School for the 2022/23 school year and reimbursement for an IEE. (P-Ex.A; T.pg.35-36). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on July 6, 2023. A Pre-hearing Conference was held on September 7, 2023. A Pendency Hearing was held on 10/10/23 and Hearing scheduled for November 14, 2023. (T.pg.27).

At the November 14th Hearing, District did not present a case with either exhibits or witnesses. (T.pg.27). The Parent presented exhibits that were entered into evidence and the testimony of three witnesses.^[3] (T.pg.28-29).

Three joint/unopposed requests to extend the compliance date were granted. The record closed on December 13, 2023.

FINDINGS OF FACT

Parent’s DPC was uncontested. As set forth therein, Student is classified with speech and language impairment (“SLI”). For the 2022-2023 school year the student attended a New York State approved nonpublic day school. Student was due for a mandated 3-year reevaluation, but no evaluations had been performed by the CSE and the parents requested the CSE to fund an Independent Educational Evaluation (“IEE”). The CSE did not respond to the parents’ request for a publicly funded IEE. (P-Ex.A).

On February 6, 2023, the CSE convened an annual review of the student’s IEP for the 2023-2024 school year. Suspecting that the student has significant developmental delays in addition to severe expressive and receptive language deficits, the NYS Approved NPS personnel suggested a placement that can offer a more intensive level of support. The February 6, 2023 CSE deferred the case to the Central Based Support Team (“CBST”) to secure an appropriate private day school for the student for the 2023-2024 school year. (P-Ex.A; T.pg.48).

Following the February 6, 2023 meeting, the parents expressed concerns that the student had not been reevaluated and again requested the CSE to approve an IEE at public expense. The parents also believed that an updated evaluation was necessary to identify an appropriate an appropriate nonpublic school program for the student. The CSE had not responded to the parents’ request and the parents obtained a private neuropsychological evaluation at the cost of $5,500. The Neuropsychologist diagnosed the student with Moderate Intellectual Disability, Developmental Coordination Disorder, Global Developmental Delay, and Language Disorder, and recommended placement in a full-time special education program that can provide the student with significant support in language and communication skills and adaptive living skills. (P-Ex.A; D).

Private School Director testified Student is eligible for special education and related services under classification of Speech and Language Impairment. She is diagnosed with Moderate Intellectual Disability, Developmental Coordination Disorder, Global Developmental Delay and Language Disorder. Student’s overall cognitive abilities fell in the Very Poor Range below the 1st percentile for her age, indicating severe areas of deficit in all areas. Her academic skills also fell below the 0.1st percentile, at prekindergarten to kindergarten levels. Her scores on Communication, Daily Living Skills, and Socialization were all below the 1st percentile for her age. These scores are in line with Student’s overall cognitive, academic, and neuropsychological abilities. (P-Ex.K; D).

The CSE/CBST has not been able to locate an appropriate private day school placement for the 2023-2024 school year. Parents had not received a finalized IEP, PWN and/or a School Location Letter (“SLL”) for the 2023-2024 school year. (P-Ex.A; T.pg.48-49).

On June 20, 2023, the parent, through her attorney, submitted a Ten Day Notice (“TDN”) letter informing the DOE of her intent to unilaterally enroll the student in Private School for the twelve-month program of the 2023-2024 school year at the DOE’s expense. District did not respond. (P-Ex.B). Accordingly, the parent enrolled the student in the twelve-month program at the Private School for the 2023-2024 school year. (P-Ex.A; T.pg.49).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program 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.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District did not present a case regarding the 2023/24 school year. Parent’s claims regarding the denial of FAPE were not disputed with factual evidence. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2023/24 school year.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT

The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent presented the testimony of Private School Director of Admissions, who testified Private School is a school for children with developmental and cognitive disabilities. The Program fosters the development of academic, adaptive life, daily living, and social/emotional skills. Private School serves 6th-8th grade children with mild to moderate cognitive or developmental disabilities that severely impact their acquisition of these skills in academic and related service domains. The program also serves students with language-based learning disabilities significantly impacting the acquisition of academic and social skills. The curriculum is closely aligned with the New York State and Common Core Learning Standards, with varying levels of support and modifications to ensure quality individualized learning for each student. (PEx.K; E).

Director testified the Program focuses on developing competencies in each of the following areas: academic skills, critical thinking and problem solving, social skills, emotional health, physical education and movement, the arts and technology. The curriculum includes Humanities (social studies, reading, and writing), Mathematics, Social Studies, Science, Technology, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Art Therapy, Social Emotional Development (counseling), Movement and Yoga, and Kids in the

Game. (P-Ex.K; E). Each classroom is staffed with a head teacher, and at least one classroom paraprofessional. The Humanities classes have assistant teachers. In addition, clinicians provide scheduled activities within classrooms to bridge the clinical and academic goals while supporting the general classroom activities. (P-Ex.K; E).

All teachers and Related Service Providers participate in a weekly meeting where they engage in professional development and discuss student cases. In addition, all staff participate in a weekly meeting to address individual students needs and maintain cross curricular planning. (P-Ex.K; E).

Director testified one of the primary means to address students’ learning and social/emotional deficits is a small classroom consisting of 11-12 students led by 2 teachers working collaboratively with speech and language pathologists, occupational therapists, counselors and paraprofessionals lowering the actual staffing ratio to approximately 4-5 students to 1 instructor and allowing for daily small group skill instruction and provision of the recommended related services in small groups on a push-in basis. Students are grouped into five cohorts. Each cohort includes a maximum of twelve students, joined by one head teacher, an assistant teacher and three paraprofessionals. (P-Ex.K; E).

Director testified the program focuses on the student’s current functioning levels and provides the curriculum the teachers need in order to address them. Different programs are tailored to meet a student’s individual needs. (P-Ex.K; E).

Head teachers are typically certified by New York State in special education and/or have a master's degree or are in the process of completing a master’s degree. Assistant teachers have a bachelor's degree and many are in the process of obtaining master’s degrees. Paraprofessionals are required to have a high school diploma and receive professional development and training. (P-Ex.K; E).

Private School offers speech and language therapy (“SLT”), occupational therapy (“OT”), physical therapy (“PT”), and counseling. All related service providers have at least a master’s degree in their field and are licensed by New York State. The curriculum also includes art therapy and music therapy. (P-Ex.K; E).

Private School groups students by age, academic functioning levels, social skills, adaptive skills, and the overall amount of adult support our students need to advance with their individual goals. Private School also makes sure the social/emotional and behavioral needs of the group are in line with each other. (P-Ex.K; E).

All students have access to English language arts, social studies, math, and science classes, with different levels of frequency, depending on where they fall on the continuum. There are two curriculum directors who look at the state standards and modify the program for each student's current functioning level. They have assigned assessment points throughout the year, including two standardized assessments - one in reading and one in math - that provide the students’ baseline functioning levels. The curriculum directors also use portfolio-based assessments, work samples, and observations on how independent the students are with their particular goals. Curriculum directors use the assessment data, work samples and observations and pull from different curriculum materials to develop the unit plans, lesson plans, activities, and assessments for each unit. (P-Ex.K; E; see also T.pg.38).

At the beginning and end of every day, students participate in a homeroom period. The homeroom period is staffed by a counselor, a related service provider, and a teacher. Together they support executive functioning, prepare for the day, discuss any changes to the schedule that might be unusual, and also work with very small targeted social skill groups on language skills, peer communication, identifying appropriate peers, and making plans with them for after school or the weekend. The homeroom staff respond to the individual social needs of the students in their cohort. (P-Ex.K; E).

Private School also provides adaptive skills classes for students; depending on a student's need for life skills and adaptive skills instruction. The class is taught by an occupational therapist, a speech therapist, and/or a counselor through an integrated model. (P-Ex.K; E).

Teachers conduct initial assessments in core academic areas to establish baseline data, and design initial goals for each student after a file review or after reviewing the previous year's progress reports of re-enrolling students. Clinicians utilize a battery of assessments to set goals. Teachers and providers report on student goals twice annually in progress reports. (P-Ex.K; E).

OT is often provided in a sensory gym which contains fitness equipment including a climbing/rock wall, equipment for providing deep pressure and sensory input (weighted blankets), and other toys and games used to develop a students’ fine motor and visual coordination. SLT is provided individually, in small groups (two to four students), or by pushing into the classrooms to provide language support while working on lessons. All school psychologists, occupational therapists, and speech therapists working are required to be licensed and certified by the New York State Education Department (“NYSED”). (P-Ex.K; E; see also T.pg.39-40).

Private School Director testified Student entered Private School on July 5, 2023, for the 12-month program of the 2023-2024 school year. Director testified Student’s developmental and special educational needs are similar to the needs of other middle school students who are regularly accepted and educated at Private School. (P-Ex.K).

Student is enrolled in a 12-month program consisting of a special education class of 12 students taught by 1 special education teacher, 1 assistant teacher, and 2 paraprofessionals. Student’s classroom peers have individual learning needs and performance levels similar to Student’s, which include the areas of academics, social and physical development, management, and adaptive skills needs. Instruction is differentiated daily for Student’s specific goals in small groups of up to 2-3 students. She also receives push-in related services of OT, PT, SLT, and Counseling with a similar frequency and duration, and which are all provided in the classroom. (P-Ex.K;l see also T.pg.38; 43-44).

Assistant Head of School testified Student was making progress. (T.pg.40-41; see also PEx.J). Assistant Head testified the Program was appropriate: “[Student] is in a class of peers who are appropriate for her, both academically and socially and functionally. She is receiving integrated and wraparound related services and therapies. She receives small-group instruction with comprehensible input and challenging -- presentation of challenging and age-appropriate content, and she is fostering independence and is able to generalize what she's learning in school to the larger community.” (T.pg.46).

With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that the Private School was an appropriate placement for the Student for the 2023/24 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent provided notice by letter dated June 20, 2023. (P-Ex.B). Student was enrolled on July 5, 2023. (P-Ex.I). I find Parent’s notice to be timely and reasonable.

2. The Parent’s actions were reasonable. The District failed to establish Parent prejudiced the District.

In balancing the equities, I find in favor of the Parent.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during 2023/24 school year. I further find that placement at Private School is appropriate. Parent is entitled to direct tuition funding at Private School for the 2023/24 school year and reimbursement for the independent neuropsychological evaluation, as set forth in my Order.

Parent’s remaining claims are rejected for lack evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDER THAT, the District shall directly fund all Private School tuition and fees for the Student’s placement at Private School for the 2023/24 school year;

2. ORDER THAT, the District shall reimburse Parent $5,500 for the cost of the independent neuropsychological evaluation dated 2/23/23.

SO ORDERED

DATED: December 27, 2023

David R. Gronbach

David R. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

N/A

PARENT EVIDENCE

A. Due Process Complaint 06/30/23 (5 pages)

B. Ten Day Notice 06/20/23 (2 pages)

C. Individualized Education Program 03/28/22 (28 pages)

D. Neuropsychological Evaluation 02/23/23 (18 pages)

E. Program Description UNDATED (7 pages)

F. Enrollment Contract 05/23/23 (3 pages)

G. Class Schedule 2023-2024 (2 pages)

H. Attendance Report 09/26/23 (2 pages)

I. Tuition Affidavit 08/09/23 (2 pages)

J. Progress Report Summer 2023 (6 pages)

K. Affidavit of Private School Director 10/06/23 (10 pages)

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.