New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 602317 - NYC: 250180

FINDINGS OF FACT & DECISION

Case No. City/State: 250180 / 602317

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: 11/9/23

Actual Record Close: December 15, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: December 29, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

[REDACTED], ESQ., Attorney — Student

[REDACTED] — Parents

[REDACTED] — Parents

[REDACTED], Teacher, Private School — Student

[REDACTED], ESQ., District Representative — DOE

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) dated July 5, 2023 regarding the 2022/23 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 Private School tuition reimbursement for the 2022/23 school year and an Order for a 12-month school year. (P-Ex.A; T.pg.30-31). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on July 7, 2023. A Pre-hearing Conference was held on September 13, 2023. A Status Conference was held on October 10, 2023, at which time the Hearing was scheduled for November 9, 2023. (T.pg.17-18).

At the November 9th Hearing, District did not present a case with either exhibits or witnesses. (T.pg.18). The Parent presented exhibits that were entered into evidence and the testimony of two witnesses.^[3] (T.pg.18-20).

Three joint/unopposed requests to extend the compliance date were granted. The record closed on December 15, 2023.

FINDINGS OF FACT

Parent testified Student has global delays – he is diagnosed with significant deficits in his speech and language, and with autism-spectrum disorder (“ASD”), which collectively impact his academic and social-emotional learning and skills. He has physical delays, coupled with severe and life-threatening allergies to a wide range of foods and irritants. He receives [REDACTED] treatment and must eat certain foods daily to help protect him from anaphylaxis. He has significant deficits in both his receptive and expressive language, which require specialized instruction so that he can understand and absorb information. He is not fully aware of his allergies due to his receptive language delay and can neither reliably advocate for himself nor keep himself safe from potentially life-threatening food exposures. (P-Ex.T; B; C).

Student has a high motivation to learn and please his teachers, but often has trouble staying on task and understanding verbal instructions. He is able to communicate most of his needs and thoughts if he is provided with appropriate time, support and prompting. (P-Ex.T).

Parent testified in anticipation of Student’s turning-five IEP review and kindergarten placement, they engaged a neuropsychologist to conduct a testing update with placement recommendations. Neuropsychologist noted Student’s minimal progress and recommended a twelve-month setting in a small and structured, highly specialized school/class setting whereby he can receive intensive speech/language therapy. Neuropsychologist also noted that Student’s social skills and ability to be over stimulated placed Student in danger. (P-Ex.T; B; C).

Parent shared the neuropsychological evaluation and other documents with the CSE In advance of the IEP meeting scheduled for May 17, 2022. Prior to the IEP meeting, Student was also accepted to Private School, a state-approved nonpublic school. Parent applied based on neuropsychologist’s advice and reports. Parent requested the CSE recommend placement in Private School due to Student’s needs set forth in the neuropsychological evaluations. Prior to the IEP meeting, the District recommended a 12:1+1 class and placement in a community school, which was subsequently revoked. (P-Ex.T; S).

Parents attended the IEP meeting on May 17, 2022. Parents disagreed with the ten-month recommendation, the larger size of the 12:1+1 classroom in a non-specialized school, the community school recommendation, the part-time health support, and the failure to defer the case to the Central Based Support Team for recommendation to a specialized school like Private School. (P-Ex.T).

Parent testified they received a copy of the IEP, but not an offer of placement until June 22, 2022. (P-Ex.T). Parent testified at a subsequent IEP meeting, the District agreed Student required a 12-month program., but was never offered one (T.pg.53-54). Private School Teacher testified to Student’s need for a 12-month program due to Student’s regression after short breaks. (T.pg.41).

Parent testified at the time he was accepted to Private School, Student was in a smaller class and twelve-month program in a specialized setting. Parent believed Student required both to make progress and avoid regression. (See P-Ex.G; B; C). Parent determined District’s proposed placement was inappropriate. (P-Ex.T).

On August 22, 2022, Parent provided the DOE with a Ten-Day Notice of Unilateral Placement (“TDN”) indicating placement at Private School if the concerns remained unanswered. (P-Ex.K). Parent enrolled Student at Private School and seeks tuition reimbursement. (P-Ex.T).

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 2022/23 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 2022/23 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 Classroom Teacher testified Private School provides students with grade-level curriculum in all subject areas individualized to meet the needs of each student. Private School is a school for students with special needs, categorized as a non-public school approved by the New York State Department of Education. The New York City Department of Education is able to recommend students for and fund Private School. Parents can also sign private contracts for enrollment if accepted to the program after the application process. (P-Ex.U).

Private School identifies children with language and autism spectrum disorders early to provide educational programs. Private School’s Program is designed to stimulate and challenge children's language development throughout the day and throughout the curriculum. Interactive classrooms are structured as language laboratories with small class size, taught by a licensed professional faculty. All the children are immersed in language activities using different methods. Students also receive therapy services that support their unique needs. These may include: speech and language therapy, physical therapy, occupational therapy, and counseling. All students also receive specialty services throughout the week which include adaptive physical education, music therapy, art therapy, and computer-based learning instruction. (P-Ex.U).

All teachers and specialists are trained in Private School’s Program teaching children to use symbols to communicate first, to acquire word meaning second and to develop linguistic structures third. Private School focuses on the relationship between language development and academic success, providing intensive language immersion and academic instruction for students with language and autism spectrum disorders in a six and one-half hour school day (5 hours of instructional programming). The program is approved by New York State Education Department to serve students with Speech or Language Impairment, Autism, Learning Disability, Intellectual Disability, Emotional Disturbance, Other Health Impairment, Hearing Impairment and Traumatic Brain Injury, from kindergarten through eighth grade. (P-Ex.U).

Private School’s curriculum and instructional programs are aligned with New York State Learning Standards. Private School’s self-contained classrooms are comprised of twelve students, two certified teachers and two teaching assistants (12:2:2), and are organized by grade level, according to students’ developmental levels of functioning. The intense student-to-teacher ratio allows for the provision of individual and small group instruction critical to helping students achieve high academic standards and learning expectations. (P-Ex.U; T.pg.38). For Student’s 2022/23 school year, there were nine students in the class. (T.pg.34). Private School addressed Student’s severe food allergies. (T.pg.37). Student received related services of Occupational Therapy, Speech, and Physical Therapy, and made progress. (T.pg.39-40).

Educational programming includes several periods of daily reading instruction. The building also has a reading specialist that provides instructional support for all teachers and develops an intervention plan for struggling students. Students participate in a socialization program in which social skills are taught through direct instruction, role play, games and various other learning activities. (P-Ex.U).

Private School teacher testified to the progress Student made during the 2022/23 school year. (T.pg.36; 42; see also P-Ex.O). 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 2022/23 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 August 22, 2022. (P-Ex.K). Student was enrolled on September 1, 2022. (P-Ex.Q). 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 2022/23 school year. I further find that placement at Private School is appropriate and Student requires a 12-month program. Parent is entitled to reimbursement for tuition at Private School for the 2022/23 school year, 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 Student is entitled to a 12-month program for the 2022/23 school and District reimburse Parent all Private School tuition and fees for the Student’s placement at Private School for the 2022/23 school year.

SO ORDERED

DATED: December 29, 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 July 5, 2023 9 B Neuropsychological Evaluation December 6, 2021 16 C Neuropsychological Update January 25, 2022 7 D Turning Five Package Various Dates 4 E BCBA Report October 7, 2021 3 F [REDACTED] Progress Reports Various Dates 28 G 12 Month Program Rationale April 4, 2022 2 H Private School Acceptance Letter 3/22/22 2 I Report re: [REDACTED] Program 1/10/22 1 J Completed Medical Accommodations Form 4/6/22; 6/16/22 3 K Notice of Unilateral Placement 8/22/22 2 L DOE Response to Exhibit K 9/14/22 1 M Due Process Response 7/17/23 7 N Contract 3/10/22 2 O Progress Reports 2022-23 SY 23 P Schedule 2022-23 SY 1 Q Tuition Statement 11/2/23 1 R Emails with PS re visit 6/22; 27; 20 /2023 5 S Emails from PS re: 12:1+1 placement 5/4/22 1 T Affidavit of Parent 11/6/23 9 U Affidavit of Private School Teacher undated 8

August 22, 2022 2 September 14, 2022 1 July 17, 2023 7 March 10, 2022 2 2022-2023 School Year 23 2022-2023 School Year 1 November 2, 2023 1 5 May 4, 2022 1 November 6, 2023 9 Undated/Unsworn 8

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.