Impartial Hearing Decision

CASE NUMBER: NYC: 251776

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC Department of Education, District [REDACTED]

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

Request Date/Date Complaint Filed: 07/17/2023

Date(s) of Hearing: 09/28/2023

10/27/2023 Actual Record Closed Date: 11/27/2023

Date of Decision: 11/28/2023

Date of Distribution (if Different than Decision Date): 11/28/2023

Hearing Officer: Edward Perkins, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], Esq., Attorney

[REDACTED], Elementary School Program Director, Private School

[REDACTED], PsyD., Neuropsychologist

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Esq., Attorney

[REDACTED], School Psychologist

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). The Parent filed this case on 07/17/2023. In the Due Process Complaint (“DPC”), the Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2023-2024 school year. Ex. A.

Parents allege that the DOE failed to provide Student with a FAPE for the 2023-2024 school year, in that the DOE failed to develop an appropriate Individualized Education Program (“IEP”) and/or offer an appropriate school location. Id. By way of relief, Parents seek an award of tuition reimbursement/direct funding for Student’s attendance during the 2023-2024 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, as well as reimbursement for the cost of a private neuropsychological evaluation. Id. Furthermore, Parents alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school year at issue. Id. Considering the foregoing and as more fully discussed below, I find that (a) the DOE failed to meet its burden that it offered Student FAPE for the 2023-2024 school year, the (b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and (c) the equities support the requested relief.

PROCEDURAL HISTORY

The initial request was filed on July 17, 2023. Ex. A. On the same date, I was appointed as IHO in this matter. On September 28, 2023 and October 27, 2023 a due process hearing was held. Following the conclusion of the hearing, each party submitted a written closing brief. As the record is now complete, this matter is ripe for review.

FINDINGS OF FACT

I hereby make the following findings of fact and determinations. Student was [REDACTED] years old at the time of the filing of the complaint. Ex. A-1. Student has a DOE disability classification of ‘Other Health Impairment’. Ex. 1-1. Student is known to and identified by the DOE as a student with a disability. Id. Student has a diagnosis of ADHD and Mixed Expressive Receptive Language Delay. Ex. B-12.

Student was last comprehensively examined by the DOE in November of 2020. Ex. 11. In January of 2023, Parent funded an independent comprehensive neuropsychological evaluation of Student. Ex. B, Ex. J-1, Ex. L-1. Parent’s neuropsychological evaluation recommended a placement in a classroom setting of 12 or fewer students, in a full-time special education school setting. Ex. B-13, Ex. L 3-4. In February and March of 2023, the DOE conducted a turning-five (“T5”) evaluation of Student. Ex. 2,4,5. The T5 evaluation consisted of a social history assessment and classroom observation. Id.

On May 4, 2023, an IEP meeting was held for Student for the 2023-2024 school year. Ex. 1-30. At the IEP meeting, the DOE recommended an Integrated Co-Teaching (“ICT”) classroom for Student. Ex. 1-23. An ICT classroom contains two teachers and up to 25 students, and are made up of approximately 60% general education and 40% special education students. Tr. at 80. However, members of the IEP team did not believe that a classroom setting containing 100% special education students would be an impediment to Student’s social, emotional, or academic progress. Tr. at 90.The IEP also recommended one hour weekly of individual Physical Therapy (“PT”) services, thirty minutes per week of individual Speech-Language services (“SLT”), thirty minutes per week of individual Occupational Therapy (“OT”) services, and thirty minutes per week of group OT services. Ex. 1-23. The IEP team relied upon Parent’s private comprehensive neuropsychological evaluation during the IEP process, as it was the most recent comprehensive evaluation of Student available. Tr. at 88.

On June 16, 2023, Parent wrote to the DOE reiterating her concerns with the DOE’s proposed program and placement and providing the DOE with notice of her intent to place student at Private School if an appropriate public-school program and placement was not offered. Ex. C. No evidence suggests that a DOE response to Parent’s letter, or Due Process Response was ever filed. ^[1]

On May 5, 2023, Parent signed an enrollment contract with Private School. Ex. D. On July 15, 2023, Parents filed a DPC. Ex. A. No evidence suggests that a resolution meeting was held. Private School provides a twelve-month full-time special education program for students with special needs including autism, language-based learning disabilities, motor deficits/delays, and emotional challenges. Ex. K. During the course of the 2023-2024 school year, Student has made progress at Private School in a variety of areas. Ex. K.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must prove that it offered the student in question 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). According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 386, 404 (emphasis added).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. The DOE presented one witness to demonstrate the appropriateness of the May 4, 2023 IEP, the school psychologist (“School Psychologist”) who participated in the meeting. While School Psychologist appeared to be a credible and qualified witness, her knowledge of student was limited to observing him in his classroom for 40 minutes. Tr. at 47, 64-65. Further, her testimony tends to support a finding that the DOE’s IEP was not appropriate for Student. For example, School Psychologist testified that the DOE relied upon Parent’s neuropsychological evaluation as the most recent comprehensive evaluation of student during the IEP meeting. Tr. at 88. School Psychologist testified that the IEP team had sufficient evaluative data to complete Student’s IEP. Tr. at 89. However, the neuropsychological evaluation that School Psychologist claims the IEP team relied upon recommends a classroom setting half the size of the classroom setting ultimately recommended by the IEP. Ex. 6-13, Ex. 1-23. School Psychologist could not provide a “cogent and responsive” explanation for why the IEP team’s recommendations deviated so dramatically from the recommendations of the very evaluation it relied upon. Further, the record demonstrates that the CSE failed to include essential data and results from neuropsychological evaluation, without which the IEP reader could not fully understand Student’s educational needs. Ex. L-2. While School Psychologist testified that a smaller classroom setting would be “too restrictive”, she testified that this would only be an issue for Student in a hypothetical scenario where many of his classmates had “extreme behavioral concerns”. Tr. at 89-90. In fact, School Psychologist testified that in the absence of such “extreme behavioral concerns”, a smaller class size would not impede student at all. Id. In general, the IEP team failed to heed the neuropsychological evaluation’s recommendations regarding Student’s educational program. Ex. 1. Further, the record suggests that Student requires significant behavioral interventions to make academic progress. Ex. K-10. The DOE failed to conduct a behavioral assessment of Student, or to recommend appropriate behavioral supports and/or interventions. See Ex. L-2, Ex. 1-23.

Notably, two other witnesses who have more familiarity with student testified that they reviewed the IEP and found its recommendations to be inappropriate for Student. See Generally, Ex. K, Ex. L. For example, the Physical Therapy goals and academic goals contained in the IEP were inappropriate for Student’s needs. Ex. J 10-12, Ex. K-11. While I find School Psychologist to present as an articulate and intelligent witness, I also find her knowledge of and familiarity with Student to be extremely limited, which impacts her credibility in this specific matter. For example, School Psychologist referred to Student as “Lucas” in the observation report which is not his name. Ex. 4-1. I must give more weight to the two witnesses who possessed greater familiarity with Student, particularly when one of those witnesses personally evaluated him and was qualified as an expert. Tr. at 149-150. The record clearly weighs in favor of a finding that the DOE’s recommendations were not appropriate for Student for the 2023-2024 school year.

Thus, I must find that the DOE failed to offer Student a FAPE for the 2023-2024 school year.

Prong II

A private school placement must be “proper under the Act.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d at 112 quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”).

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 a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that 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.

I find that Parents have met their burden by proving that the private program offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. Parents provided substantial evidence to prove that Private School was reasonably calculated to enable Student to benefit, and the evidence shows that Student is benefiting from his placement at Private School.

To meet their burden of proof, Parents provided documentary evidence, as well as the testimony of the Elementary School Program Director at Private School (“Director”). Ex. K.^[2] Director testified that she is personally familiar with the student. Id. Based on her familiarity with Student and her credentials as a special educator (Id.), I find Director to be a credible and persuasive witness.

Director described the specific program Student receives at Private School. He is placed in a small class of eight students. Id. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).

Student had a curriculum which was individualized based on his needs, including specific mandates individually crafted for him for each of his related services based on his needs, and is grouped with other students who have similar educational needs and abilities. Id. When a teacher at the unilateral placement adapts instruction to accommodate a student’s unique needs, these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66.

I find that the services and program described at Private School at the outset of the 2023-2024 school year were reasonably calculated to enable Student to benefit socially, emotionally, and academically. In addition, the record also demonstrates that Student is actually benefitting from his placement at Private School, and has made strides towards achieving his social, emotional, and academic goals. See, e.g., Ex. K. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).

Overall, the credible testimony demonstrates that Student is making continuous progress, further demonstrating the appropriateness of his placement at Private School.

The program that was provided to Student by Private School was tailored to his unique disability profile and was designed to support his areas of social, emotional, behavioral, and academic need. In reviewing the record, the evidence establishes that Student’s individual special education needs were considered by the private school and that the instruction he was offered was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. All of the evidence and testimony presented by Parent was credible and persuasive. Thus, I find that Student’s unilateral placement at Private School was an appropriate placement for the 2023-2024 school year.

Equities

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, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (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, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student. Ex. C. Therein, Parent detailed specific concerns. Id. Parent furthermore gave the DOE notice of their intention to unilaterally place Student at Private School. Id.

I also find that, based on the record, Student requires and is entitled to a 12-month educational placement. See, e.g., Ex. K. The DOE raised no compelling objection to a 12-month educational placement during the hearing. See record generally.

By way of relief, Parent seeks reimbursement and direct funding for their private school tuition costs. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. See Ex. D. Parent seeks reimbursement for the portion of Student’s tuition she has already borne, and reimbursement for the remaining portion. Parent testified credibly that she cannot pay the full tuition and await reimbursement. Ex. H, Ex. J. The IDEA permits awards of tuition even where the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so. Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Thus, the equities support Parent’s claim for reimbursement of the portion she has paid, and direct payment to the school for the outstanding balance.

Finally, Parent also seeks reimbursement for the cost of the January 2023 private neuropsychological evaluation. Ex. A. An appropriate equitable remedy for a failure to properly evaluate a student in all areas may be an order directing the DOE to fund any additional necessary evaluations. See Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 369, 370–71 (1985) (concluding that the equities require a school district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it fulfilled its legal obligations to the student). A parent is entitled to funding for an independent evaluation when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). See also, SRO No. 20-049; see also SRO No. 20-147 (upholding an IHO’s equitable award of reimbursement for the costs of a privately obtained neuropsychological evaluation). Under New York State regulations, an IHO may order the DOE to fund an independent evaluation under their own authority. 8 NYCRR § 200.5(j)(3)(viii); 8 NYCRR § 200.5(g)(2). In order to ensure that there is sufficient evaluative data in the record to determine an appropriate educational program for the Student, the DOE will be required to provide an independent evaluation of the Student at public expense pursuant to authority granted to IHOs under State regulations. Id.; see also Luo v. Roberts, 2016 WL 6831122, at *7 (E.D. Pa. 2016) (noting that an IHO “is permitted, and in some cases required, to order an [IEE] at public expense”), on reconsideration in part, Luo v. Owen J. Sch. Dist., 2016 WL 6962547 (E.D. Pa. Nov. 28, 2016), aff'd, 2018 WL 2944340 (3d Cir. June 11, 2018). The DOE relied upon Parent’s independent evaluation in lieu of conducting its own comprehensive psychological evaluation as part of Student’s T5 evaluation. Tr. at 88-89. Therefore, Parent effectively paid for an evaluation that the DOE was obligated to conduct, and would have had to fund. Further, the DOE did not raise any compelling objections to Parent’s request to be reimbursed for the cost of the private evaluation. Notably, that evaluation was the only recent comprehensive psychological evaluation of Student available to this tribunal, and was essential to reaching a decision in this matter. The equites demand that Parent be reimbursed for the cost of the January 2023 private neuropsychological evaluation.

I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year by participating in the IEP meeting and providing a Ten-Day Notice to the DOE. Thus, I find that the equities support Parent’s claims for reimbursement and direct tuition funding, as well as reimbursement for the cost of the private neuropsychological evaluation.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

(1) The New York City Department of Education is hereby ordered to reimburse Parent $30,000 and directly fund the remaining $67,800.00 costs of Student’s tuition at Private School for the 2023-2024 school year, such payment to be made within thirty (30) days of the submission of documentation; and

(2) The New York City Department of Education is hereby ordered to reimburse Parent for the cost of the January 2023 private neuropsychological evaluation, such payment to be made within thirty (30) days of the submission of documentation including an invoice; and

(2) The New York City Department of Education is hereby ordered to provide Student with daily door-to-door special education transportation, to and from Student’s home and Private School.

SO ORDERED.

DATED: 11/28/2023

//s// Edward Perkins

Edward Perkins, Esq.

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 – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 07/15/2023 11 pages

B. Neuropsychological Evaluation 01/2023 20 pages

C. Ten Day Notice Letter 06/16/2023 3 pages

D. Private School Enrollment Contract 05/05/2023 3 pages

E. Private School Program Description Undated 1 page

F. Private School Student Schedule Undated 1 page

G. Private School Attendance Report Undated 1 page

H. Private School Tuition Document 08/28/23 1 page

I. Resume of [REDACTED] Undated 9 pages

J. Affidavit of [REDACTED] 09/23/23 12 pages

K. Affidavit of [REDACTED] 09/26/23 13 pages

L. Affidavit of [REDACTED] 10/13/23 4 pages

DOE EXHIBITS

1. IEP 05/04/2023 31 pages DOE

2. Prior Written Notice Package for Placement 05/12/2023 4 pages DOE

3. T5 School Location Document 06/09/2023 4 pages DOE

4. Classroom Observation 03/27/2023 2 pages DOE

5. Social History Update 02/06/2023 2 pages DOE

6. Neuropsychological Evaluation January 2023 20 pages DOE

7. Turning 5 Educational Progress Report 2023 3 pages DOE

8. Turning 5 Occupational Therapy Progress Report 01/09/2023 3 pages DOE

9. Turning 5 Speech-Language Progress Report 01/03/2023 4 pages DOE

10. Turning 5 Physical Therapy Progress Report 11/03/2020- 01/06/2023 3 pages DOE

11. Evaluation Packet 11/26/2020 66 pages DOE

Footnotes

[1] These documents were not entered into evidence, and there was no testimony that they were sent.

[2] As several of Parent’s exhibits lacked a Bates Stamp, I am unable to cite a specific page within the exhibit and must cite the exhibit as a whole.