Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

IHRS or NYC Case Number: 254131

School District: NYC School District

Impartial Hearing Officer: Philip P. Sturges

Request Date/Date Complaint: September 1, 2023

Filed/Date of Decision: December 11, 2023

Date of Distribution, if Different than Decision Date: n/a

INTRODUCTION

The Parent, through counsel, filed a Due Process Complaint (DPC) on or about September 1, 2023. In the DPC, the Parent alleged that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year. (Ex. A)

The Parent alleged as follows: The Committee on Special Education (CSE) failed to convene to develop an individualized education program (IEP) for the Student or recommend a public school placement for the 2023-2024 school year. On August 15, 2023, the Parent wrote to the DOE that a CSE meeting had not been held to develop an IEP and make a program recommendation for the Student with the 2023-2024 school year about to begin, and that if an appropriate IEP and placement were not provided for the Student, he would be unilaterally placed at the Private School and the Parent would week tuition reimbursement. By way of relief, the Parent seek an award of tuition reimbursement for the Student's unilateral placement at the Private School for the 2023-2024 school year and the cost of an independent neuropsychological evaluation dated June 8, 2022. (Ex. A)

PROCEDURAL HISTORY

I was appointed on September 6, 2023. On October 17, 2023, the parties appeared for a pre-hearing conference. On November 8, 2023 the parties appeared for a status conference and jointly moved for an extension of the compliance period, which I granted. (IHO Ex. I) On December 6, 2023, the parties appeared for the hearing. The Parent Representative made an opening statement, the DOE Representative waived an opening statement. The DOE did not seek to introduce witness testimony or any other evidence. The DOE conceded it was not defending whether it offered the Student a FAPE for the school year at issue. The Parent submitted 19 exhibits into the record on consent of the DOE. Included in the Parent's evidence was a witness affidavit from the Special Education Program Coordinator at the Private School (Private School Coordinator) (Ex. S). The DOE Representative cross-examined the Parent's witness. Both representatives made oral closings. (See December 6, 2023 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The Private School Coordinator testified credibly as follows. She holds a master's degree in literacy for birth through 6th grade and completed an advanced certification program for special education for grades 7 through 12. She holds New York State (NYS) licenses for teaching literacy, childhood education and students with disabilities grades 1-6, and students with disabilities grades 7-12. (Private School Coordinator Aff. at ¶ 1). She is currently employed as the Special Education Program Coordinator at the Private School and has been with the Private School for 13 years. (Id. at ¶ 2). The Private School uses a tracking system to place students in tracks that are at a level appropriate for them, and uses a full inclusion educational model, with general education and special education students grouped in the same classroom.

(Id. at ¶¶ 4-7). The Special Education Program is for students with a DOE IEP or a neuropsychological or psychoeducational evaluation indicating the nature of their disability and needs. (Id. at ¶ 9). For the 2023-2024 school year, the Private School has approximately 350 students, and about 220 are enrolled in the Special Education Program. Many students graduate from the Special Education Program while attending the Private School. (Id. at ¶ 10). All Special Education Program students report to the Private School at 8 a.m. for a small group session of 35 minutes. Students get organized and receive teacher assistance. The Special Education Program students also meet for a final period after the regular school day for structured quiet study time, with a special education teacher ensuring their planner is filled out correctly and verifying their assignments on the school online system. The students begin homework and receive 1:1 assistance from their Special Education Program teacher, with content area teachers also available to meet with students. Special Education Program students also receive twice weekly 1:1 sessions for support on their specific needs and extra support for classes. (Id. at ¶ 11). The Special Education Program teachers typically work with 12 students or less. In addition to the twice weekly 1:1 sessions they meet with their students twice daily in a group to work on executive functioning issues and skills-based problems when necessary. (Id. at ¶ 12). The Private School has a wellness team of three full-time licensed clinicians and a psychologist to address student mental health needs, including 1:1 and small group counseling.

(Id. at ¶ 13). Parents receive monthly wellness team meetings, and also receive notifications of student progress on the Private School online system. (Id. at ¶¶ 15-17). The Private School online system helps special education students with executive functioning deficits plan and organize their work and involves parents as part of the educational team. (Id. at ¶ 18). The Private School's inclusion program allows the Special Education Program teachers to support the classroom teachers and help them modify their instruction to meet the individual needs of Special Education Program students. (Id. at ¶ 19). Classroom teachers modify instruction to meet the individualized needs of special education students through chunking material, repetition, check-ins, refocusing and redirection. They also accommodate students with extended time and "quiet rooms" for test-taking, preferential seating, language exemptions, and the use of laptop computers in the classroom. (Id. at ¶ 21). Special Education Program teachers also teach academic classes in the lowest tracks. (Id. at ¶ 22). The Private School inclusion program allows special education students who do not require a self-contained special education school to be taught in the least restrictive environment in accord with the IDEA. This allows the special education students to benefit from modeling non-disabled peers. (Id. at ¶¶ 24-25). Special Education Program students have attained great academic success, are often at the top of their class, and in the last couple of years Special Education Program students have been admitted to elite colleges. (Id. at ¶ 26).

The Private School Coordinator is familiar with the Student, who is in his first year in the Special Education Program as a 6th grader. (Id. at ¶ 27). The Student is bright, and diagnosed with attention deficit hyperactivity disorder (ADHD), developmental coordination disorder, generalized anxiety disorder, and unspecified depressive disorder. He has difficulties with organization, time management, and planning skills and needs support in these areas. The Student needs help with written expression, tends to miss parts of directions, and doesn't fully answer the prompt. He has difficulty focusing and sustaining attention. (Id. at ¶ 28). The Student's Special Education Program teacher reports that he is a strong reader but benefits from discussions and concepts being broken down and repeated. The Student needs support with executive functioning and requires chunking of material and tasks, and organizational help including a digital weekly planner and consulting with the Private School online system to verify submission of assignments in a timely manner. The Student has strengthened in his ability to advocate for himself and seek out his teachers. He has been adapting more easily to transitions between classes and schedule changes. In writing the Student has been working on strengthening his sentence structure and requires the use of graphic organizers and outlines to organize and plan his ideas. (Id. at ¶ 30). The Student's class sizes are 7:1 for English and History and 6:1 for Math, Science, and Reading & Writing. (Id. at ¶ 31). The Student's English teacher reports that he is prepared and energetic and participates frequently in class. Sometimes the Student shuts down when encountering a difficulty in writing. The English teacher is working with him to push through these moments, and also breaks down and scaffolds writing assignments for the Student, meets with him 1:1 for support and uses a writing graphic organizer and rubrics to assist him. (Id. at ¶ 33). The Student's math teacher supports him by using scaffolding during math lessons and independent work, highlighting keywords in word problems, repeating instructions, and offering step-by-step instructions along with guided notes. He also uses differentiated instruction to address the Student's learning needs and meets with him 1:1 to review and reinforce concepts as needed. The Student has made great progress with arithmetic including decimals, fractions, and negative numbers. (Id. at ¶ 35). The Student's history teacher scaffolds and differentiates his lessons and content and breaks down concepts and assignments into manageable chunks. At the beginning of the year the Student struggled to write complete sentences for his homework assignments but has greatly improved in this area in the second quarter of the school year. He greatly benefits from the use of graphic organizers or outlines to structure his ideas, and quick movement breaks to refocus in class. (Id. at ¶ 37). The Student's science teacher reports he is curious and engaged in class with a sound understanding of content, but that he needs to work on his attention to detail on assignments. His bar and line graphs were missing components, and some quiz answers lacked sufficient detail. They are working on adding detail to the Student's written assignments, and the Student benefits from meeting with his science teacher before assessments to reinforce and prepare for quizzes and tests. The science teacher also scaffolds lessons and differentiates instruction to meet the Student's needs.

(Id. at ¶ 39). The Student's reading and writing teacher reports he is eager to learn and hardworking. He is benefitting and showing success with the "I do, we do, you do" model. His sentence writing is improving, and he is applying his writing skills more independently. He has been using the editing checklist without teacher reminders. The Student has difficulties going back and revising his work and needs reminders to get started on independent work. While this has been improving, the Student still needs support with proofreading independently with the checklist. The Student benefits from repeated practice and directions and using a computer to type his assignments. In September 2023 the Student was writing incomplete sentences, but now knows proper sentence structure with correct capitalization and punctuation. The Student has also made a lot of progress with checking over his work before turning it in and has needed fewer teacher reminders to get started on independent work. (Id. at ¶ 41). The support that the Student has received for the 2023-2024 school year was designed to allow him to make meaningful progress. The Private School continues to monitor and individualize instruction for the Student to ensure he benefits from the curriculum. The Student has already shown progress in class participation, study skills, written expression, and executive functioning skills. (Id. at ¶ 42). The Student has a monthly appointment with the counselor and can stop by whenever he needs support. These meetings so far have been about him making connections with peers and the Student has been adjusting well. (Id. at ¶ 43). In the professional opinion of the Private School Coordinator, the Private School is an appropriate placement for the Student for the 2023-2024 school year. The small class sizes allow him to get more individualized attention and support from his teachers, and the tracking system allows him to be appropriately challenged and receive the necessary support from the Special Education Program. (Id. at ¶ 44)

The IDEA provides that children with disabilities are entitled to a FAPE. See 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. See 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. See 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 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, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). A school district must be able to "offer a cogent and responsive explanation for their decisions" in creating that IEP, and it is "through the IEP that "[t]he 'free appropriate public education' required by the Act is tailored to the unique needs of" a particular child." Id.

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. See NYS Educ. Law § 4404(1)(c).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no witnesses or other evidence at hearing. Rather, the DOE Representative indicated on the record that the DOE was not defending whether the Student received a FAPE for the 2023-2024 school year. (T p. 23 L 6-11). I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2023-2024 school year. Moreover, a review of the Parent's DPC and evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2023-2024 school year. The SRO has found that allegations that are left unchallenged are deemed as true "unless found to be inconsistent with the evidence in the record."^[1] The DOE's silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.^[2] Here the Parent alleged in the DPC that she wrote to the CSE on May 25, 2023 and requested a FAPE for the Student as he was struggling with written expression and explained that the Student had been undergone a neuropsychological evaluation, summarized its findings, and subsequently provided the report, but that the CSE failed to convene to develop an IEP or provide a public school placement for the Student for the 2023-2024 school year. (Exs. A & F). At the hearing, the DOE failed to refute this claim, which is consistent with the evidence in the record.

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. 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." Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (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 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 CFR § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

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.

Here the Parent sought an educational program to address the Student's difficulty with reading, writing, activity level and anxiety consistent with the recommendations in his June 2022 neuropsychological evaluation report (Ex. B & F) and enrolled him in the Special Education Program at the Private School for the 2023-2024 school year. (Ex. E). The Private School has provided the Student with an individualized program to meet his specific learning needs with supports and accommodations in all subject areas throughout the school day in a manner consistent with his needs, with small class sizes of appropriately grouped peers, 1:1 support, and interventions to address his executive functioning deficits, which has allowed the Student to make meaningful progress and become more independent in his academic and executive functioning abilities during the 2023-2024 school year. (Private School Coordinator at ¶¶ 42-44)

In reviewing the Private School Coordinator's affidavit (Ex. S), the weight of the evidence establishes that the Student's individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE did not object to any document accepted into the record. Under these circumstances, I find that the Parent's witness and documentary evidence credible and that the Parent has met their burden in proving that the Private School offered an educational program which met the Student's need under Prong II of the Burlington/Carter standard.

Turning to Prong III of the Burlington/Carter standard, 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, the district court may consider many factors, including, inter alia, whether plaintiff's unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether plaintiff 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 DOE, 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, the Parent sent a timely TDN to the CSE on August 15, 2023, notifying the DOE that it had failed to convene to develop an IEP or provide a public school placement for the Student for the 2023-2024 school year, and of their intention to unilaterally place the Student at the Private School and seek tuition reimbursement from the District. (Ex. E) At the hearing, the DOE did not argue that any equitable considerations weighed against the Parent. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. (Exs. M & N) The Student is attending the Private School during the year at issue (Ex. K) The total contracted annual tuition rate for the Student's attendance in the Special Education Program at the Private School for the 2023-2024 school year is $91,574.00. (Ex. M & N) The Parent has paid the tuition in full and received a 2% discount of $1,649.48 for paying the tuition by April 4, 2023, entitling the Parent to tuition reimbursement of $89,924.52. (Ex. N & O).^[3] I find that the weight of the evidence establishes that the 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. (See Ex. E) Overall and after considering the record at hearing, I find that the equities support the Parent's claim for tuition reimbursement. ^[4]

ORDER

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

The Parent's claim for tuition reimbursement for the Student's unilateral placement at the Private School is GRANTED for the 2023-2024 school year as follows: The DOE shall, within thirty (30) days of receipt of this ORDER, reimburse the Parent in the amount of $89,924.52 for tuition paid to the Student's Private School for the 2023-2024 school year.

Dated: December 11, 2023

_Philip Sturges_______

Philip P. Sturges

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.

Footnotes

[1] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.

[2] Id.; see also SRO Appeal No. 19-038 at 28 (a district's default deems all violations alleged in a due process complaint notice to be deemed true).

[3] I do not find entitlement for Parent reimbursement of the refundable Bookstore fee of $900.00 or the Tuition Insurance of $1,816.49 contained in the Private School Invoice. (Ex. N).

[4] I do not find that the Parent established entitlement to reimbursement for the cost of the June 8, 2022 independent neuropsychological evaluation sought in the DPC, and such claim is dismissed without prejudice.