Impartial Hearing Decision

NEW YORK CITY DEPARTMENT OF EDUCATION

STUDENT, a minor, by and through his Parent(s), ^[1]

0F

Petitioners,

FINDINGS OF

FACT AND

DECISION

Case No: 262643

-against-

NEW YORK CITY DOE, CSE REGION REDACTED Jennifer Mazzei, Esq.

Respondent. Hearing Officer

INTRODUCTION

This matter comes to your undersigned Impartial Hearing Officer upon Parent’s Due Process Complaint (hereinafter, “DPC”), filed on or about September 22, 2023 (P-Ex. A. 2). Your 1F undersigned Impartial Hearing Officer (hereinafter IHO) was appointed on October 4, 2023. A Prehearing Conference in this matter was scheduled for, and held on, October 25, 2023, and an impartial hearing was set for November 8, 2023.

An impartial hearing commenced on November 8, 2023, and concluded the same day. The hearing was held via the Escribers video conferencing platform, without objection from either party. Exhibits were pre-marked, and Parent offered into the record as evidence, Exhibits A-II, which were entered into the record with the exception of Exhibit D (T.22). Respondent

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

(hereinafter DOE or District) was represented at the Impartial Hearing and did not submit any documentary or testimonial evidence into the record (T.18). The DOE also did not defend an offer of FAPE and rested without putting on a case (T.18). Your undersigned IHO did not enter any exhibits into the record as IHO Exhibits. Parent called three (3) witnesses; Student’s Parent (hereinafter “Parent”), the Program Director at Student’s Private School (hereinafter “Director”) and a Clinical Psychologist (hereinafter “Psychologist”). All witnesses testified via affidavit but were available for cross examination by the DOE and/or questions by your undersigned IHO.

JURISDICTION

The Due Process Hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 3 20 U.S.C. § 1400 et

2F

seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

BACKGROUND

Student is presently a REDACTEDT year old that attended the Private School for the 2023-2024 school year, which is the school year at issue in the instant matter. Student is classified as having Autism by the DOE (P-Ex: E-1). In addition to the classification by the DOE, Student has also received various diagnoses, which include specific learning disorder with impairment in reading with deficits noted in decoding, encoding and fluency (dyslexia), specific learning disorder with impairment in written expression, including grammar and punctuation, accuracy, and 3 In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”). organization of written expression, attention deficit hyperactivity disorder (combined type), language disorder, and auditory processing disorder (P-Ex: II-02).

For the school year at issue, Parent alleges that the DOE failed to provide Student a FAPE, Parent informed the DOE of her concerns with their recommended placement and ultimately unilaterally placed Student at the Private School upon ten-day notice to the DOE (P-Ex: EE).

ISSUE

The DPC alleges that the DOE denied Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2023-2024 school year (P-Ex: A). Parent has requested a finding that (a) the Department of Education failed to offer to Student an appropriate program and placement for the 2023-2024 school year; (b) the program provided to the Student at the Private School during the 2023-2024 school year was appropriate; and (3) there exist no equitable bars to full and direct funding of Student’s 2023-2024 non-public school tuition.

Parent further requests that the Department of Education shall fully fund Student’s 2023-2024 tuition by (a) reimbursing the Parent for her payment of $2,500 toward the cost of the tuition and any other verifiable payments and (b) paying directly to the Private School the remaining balance of Student’s tuition for the 2023-2024 school year. Direct payment to the Private School is requested to be issued within forty-five (45) days of the non-public school’s submission to the Department of Education of its invoice, program description, class schedule, tuition affidavit, and tuition contract signed by the Parent. Reimbursement to the Parent is requested to be issued within forty-five (45) days of the Parent’s submission to the Department of Education of her canceled check attesting to her payment of $2,500 and any other verifiable payments toward the cost of Student’s 2023-2024 tuition.

Parent further requests the Department of Education to provide Student with special education transportation as well as any further relief deemed just and proper by your undersigned IHO and attorney’s fees and costs.

FINDINGS OF FACT

After considering all the evidence and arguments of counsel, the Findings of Fact are as Follows: Student is presently REDACTED years old and attends the same Private School that he has been in since the 2016-2017 school year (P-Ex: HH-3). Student is presently placed in an 8:1:1 class within the “REDACTED program at the Private School (P-Ex. HH-02). The REDACTED School Program “uniquely combines academics with an emphasis on social thinking and vocational or postsecondary opportunities.” The program also follows all NYS common core standards and prepares students for Regents exams, SATs, the college experience, and/or life outside the classroom” (P-Ex: HH-03).

The guiding philosophy at the Private School and in Student’s REDACTED program is the Collaborative and Proactive Solutions philosophy (P-Ex: HH-03). This model is based upon the premise that challenging behaviors occur when the demands and expectations being placed on a child exceed their capacity to respond adaptively and that some children lack the skills required to handle certain demands and expectations (P-Ex: HH-03). The emphasis of the model is that a child’s challenging behavior is an indicator that there are expectations they are having difficulty meeting. The goal is to help the child identify and resolve the underlying issue that triggers the behavior, rather than trying to modify the behavior through application of rewards and punishments (P-Ex: HH-03).

During the 2023-2024 school year, Student was enrolled in the REDACTED program at the Private School and was placed in a class with an 8:1:1 ratio (P-Ex: HH-04). However, due to his unique needs, many of Student’s classes are actually a much smaller 6:1:1 ratio, where Student receives speech therapy-4x30 minutes per week, counseling-individual-1x30 minutes per week and counseling-group-1x30 minutes per week (P-Ex: HH-04).

The Director testified that Student is making progress toward all his 2023-2024 goals (P-Ex: HH-05). The Director further testified that because Student’s behaviors interfere with his learning and building positive peer relationships, the Private School conducts Functional Behavior Assessments for Student and develops Behavior Action Plans to identify proactive procedures to maintain adaptive behavior and individualized instruction/modification of his classwork (P-Ex: HH-05).

Student is presently receiving vocational training as well (P-Ex.: HH-06). The Director testified that in her professional opinion, the Private School is an appropriate placement for Student and that he has made academic progress at his own pace with the program providing him with educational instruction specially designed to meet his unique educational, emotional, and behavioral needs (P-Ex: HH-06).

Finally, Parent testified that the IEP team met on April 18, 2023 to develop an IEP for the 2023-2024 school year (P-Ex GG-03). Prior to the meeting, the DOE conducted a speech evaluation, but did not provide a copy of said evaluation to Parent prior to the IEP meeting and at the IEP meeting was told that the report was not available and thus would not be considered (P-Ex: GG-03). At this meeting, a ten (10) month program was recommended for Student in a 12:1:1 classroom, despite contrary recommendations documented in the parentally obtained neuropsychological evaluation (P-Ex: GG-03).

On May 18, 2023, the IEP team reconvened to consider the DOE conducted speech evaluation. Again, Parent testified that she was not provided a copy in advance and the recommendation of the IEP for program and placement for Student did not change from the previous meeting on April 18, 2023 (P-Ex: GG-03).

Parent testified that after the meeting, she did not receive prior written notice and did not receive a school location letter and therefore through her attorney, sent a ten-day notice on June 14, 2023, receipt of which was acknowledged by the DOE on June 20, 2023 (P-Ex: EE, GG-04).

In said acknowledgement, the DOE indicated that Parent would need to file a due process complaint to seek reimbursement for her unilateral placement (P-Ex: AA, GG).

On June 20, 2023, Parent testified that she made a two thousand five hundred ($2,500.00) dollar payment towards the 2023-2024 school year tuition, for which she is seeking to be reimbursed (P-Ex: GG-04, S, V).

On August 21, 2023, Parent again filed a ten-day notice to the DOE informing the DOE of her intention to unilaterally place Student at the Private School, receipt of which was acknowledged that same day (P-Ex: GG-05, Z).

Parent then signed a parental guarantee of tuition for the 2023-2024 school year with the private school for the ten-month program, wherein she became legally and financially obligated to pay the cost of tuition. Parent further testified that she is not in the financial position to pay the tuition upfront and await reimbursement by the DOE (P-Ex: GG-05-6, U).

Students were then enrolled in the Private School and remains as of the date of Parent’s affidavit (P-Ex: W). Parent further testified that she has watched her son make progress at the private school socially, emotionally, academically, and behaviorally and that the Private School has been an appropriate placement for Student both in the past and for the 2023-2024 school year (P-Ex: GG-06).

Regarding transportation, Parent testified that Student currently receives transportation through the DOE as listed in his May 2023 IEP -“Transportation from the closest safe curb location to school” …” “because of his communication delays” (P-Ex: E-32-33, GG-05),

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows: The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a 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). To demonstrate that FAPE is being provided, the school DOE 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).

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:

The DOE did not offer any testimonial evidence or documentary evidence into the record.

The Supreme Court has found that “[a] reviewing court may fairly expect those 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. v. Douglas County School District, 137 S.Ct. at 1002 (2017). Here, the DOE provided no defense of FAPE at all (T.18).

Based upon the lack of evidence above, I find that the DOE failed to meet their burden and thus I must find the DOE did not provide the Student with a FAPE for the 2023-2024 school year.

PARENT’S BURDEN:

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 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 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; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides educational 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). Finding that the DOE did not provide a FAPE to Student during the 2023-2024 school year, the burden now shifts to Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that Parent has met that burden. The Private School appears to have provided educational instruction specially designed to meet Student’s academic, and social emotional needs by providing special education services, by a New York State certified special education teacher, in a small supportive setting. The Private School has also provided related services to Student. With respect to 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]). However, here Student has made progress as characterized by both the Parent (P-EX: GG), director (P-Ex: HH), and annual reviews/progress reports (P-Ex: J-R)

Based upon all the above, I find that the Private School was an appropriate placement for Student for the 2023-2024 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). In balancing the equities, I find in favor of Parent. Parent has provided appropriate notice to the DOE of their intent to unilaterally place Student in the Private School and seek reimbursement. To the extent possible, the Parent has participated in all aspects of the special education process and there was no evidence presented that would operate to preclude or otherwise diminish a reimbursement award. Additionally, Parent signed a contract with the Private School for which she is personally liable should the DOE decline to reimburse her (P-Ex: U), Parent testified that she would be unable to pay for the tuition up front and await reimbursement (P-Ex:GG-6). Based on the foregoing, the credible evidence presented supports a finding that Parent was financially obligated to, and could not afford to, fund the costs of Tuition for Student at the Private School during the 2023-2024 school year. Additionally, Parent testified, and the evidence shows that she paid Two Thousand Five Hundred ($2,500.00) Dollars toward the tuition for the 2023-2024 school year (P-Ex: U, V, GG-06).

STUDENT IS ENTITLED TO TRANSPORTATION TO AND FROM

THE PRIVATE SCHOOL

Entitlement to the provision of transportation to and from school by the District is warranted where “a student lives within 50 miles of a nonpublic school which a child with a handicapping condition attend, if such child has been so identified by the local committee on special education …”. New York State Education Law § 4402 (2)(d).

It is undisputed that Student falls within the confines of that statute because Student is a child with a handicapping condition who has been identified as such by the applicable CSE. (P-Ex: B-1). Moreover, the Student lives less than 50 miles as required by the applicable statute (P-

Ex: A).

Therefore, Parent has established that Student meets the statutory geographic and distance requirement and thus transportation to and from the Private School for the 2023-2024 school year is warranted.

DECISION:

Based on a review of the record and the facts mentioned above, I find that the DOE failed to provide the Student FAPE during the 2023-2024 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I further find that the Parent is entitled to reimbursement and/or funding of tuition at the Private School.

Based upon the above Findings of Fact, it is hereby:

1. ORDERED that the Department of Education shall fully fund Student’s 10-month 2023-2024 tuition by (a) reimbursing the Parent for her payment of $2,500 (Two

Thousand and Five Hundred Dollars) and (b) paying directly to the Private School$94,500 (Ninety-Four Thousand and Five Hundred Dollars), for the remaining balance of Student’s 10-month tuition for 2023-2024 school year.

2. ORDERED that the Department of Education shall pay the Private School directly for Student's tuition for the 10-month 2023-2024 school year. This payment shall be made within forty-five (45) days of the non-public school’s submission of its invoice, program description, class schedule, tuition affidavit, and tuition contract signed by the Parent to the Department of Education.

3. ORDERED that the Department of Education shall reimburse the Parent within a period of forty-five (45) days from the date of submission of a copy of her canceled check, which attests to her payment of $2,500 towards Student’s tuition fees for the 2023-2024 school year.

4. ORDERED that the Department of Education will provide Student with special education transportation between home and school through the end of the 2023-2024 school year.

SO ORDERED

DATED: November 30, 2023 Jennifer Mazzei, Esq.

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 of 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 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, and proof of service with the Office of State Review of the State Education Department within two days after the 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 – PERSONALLY IDENTIFIABLE INFORMATION

REDACTED, a minor, by and through his parent, REDACTED, v. New York City DOE, CSE

Region REDACTED

Student REDACTED

Parent REDACTED

Private School REDACTED

The Director REDACTED The Psychologist REDACTED

APPENDIX B – ADMITTED EXHIBITS

REDACTED, a minor, by and through his parent, REDACTED, v. New York City DOE, CSE

Region REDACTED

PARENT EXHIBITS

REDACTED

DEPARTMENT OF EDUCATION EXHIBITS:

NONE/NOT APPLICABLE

IHO EXHIBITS:

NONE/NOT APPLICABLE

Footnotes

[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.