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FINDINGS OF FACT AND DECISION
Case Number: 170134
Student s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 23, 2018
Actual Record Closed Date: January 9, 2019
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AN TITLES OF PERSONS WHO APPEARE ON MAY 23, 2018
, Esq. Attorney Parent
Mother Parent
Principal Parent
(via telephone)
Representative DOE
INTRO UCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent1 by letter dated October 6, 2017. (Exhibit G) A hearing was held on May 23, 2018, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
In scheduling the hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
BACKGROUN
is a who entered the 2017-2018 school year as a kindergartener, classified by the DOE s Committee on Special Education (“CSE”) as a student with “multiple disabilities.” The CSE conducted a meeting on May 26, 2017, in order to develop an Individualized Education Program (“IEP”) for for the 2017-2018 school year. As per the Parent s testimony, she was not advised that a meeting had been
1 1
The term “Parent” is used to collectively refer to both of parents, who are referred to herein.
scheduled. The meeting was conducted by telephone, when she received a call from . She and spoke for five to seven minutes with no other participants. (T.
73-75) The IEP sent to the Parent, showing the meeting date of May 26, 2017, has an attendance page with three names typed on it, but with no signatures. s name does not appear on the attendance page. (Exhibit 1) According to the Parent, there was a second meeting by telephone, in September, after school had already started. The purpose of that meeting was to amend the IEP to include special transportation, since transportation had not been addressed on the IEP created on May 26, 2017. The IEP has a second attendance page, with two names of DOE participants, with signatures, and an indication that the Parent participated by telephone. The document is dated September 6, 2017. The Parent confirmed that those two individuals were the ones who called her in September. (T. 77-78; 94)
By letter to the CSE, dated August 8, 2017, the Parent notified the DOE of their concerns related to the CSE meeting, the IEP, and the recommendation. (Exhibit B) It refers to a placement recommendation letter from the DOE, dated July 25, 2017. In the Parent s letter, they requested assistance in scheduling an appointment to visit the school, and also requested specific information about the school recommended. By letter dated August 18, 2017, through the Parent s attorney, the Parent notified the DOE of their intention to place at (“ ”) and to seek tuition funding from the DOE in the event that the DOE failed to offer a FAPE to (Exhibit
C) This letter, although dated August 18, 2017, was actually first sent to the DOE on August 3, 2017, and the DOE confirmed receipt of the letter on that date. (Exhibits A and
E) By letter dated October 6, 2017, the Parent requested an impartial hearing. (Exhibit G)
POSITIONS OF THE PARTIES
THE OE’S CASE
The DOE chose not to present a case and, instead, indicated that it was “resting on evidence.” The DOE did not assert a position or raise any opposition to the Parent s case.
The DOE s opening statement asserted that the evidence would show that a FAPE was offered to for the 2017-2018 school year, and that the equities do not favor the Parent. (T. 15-16) The DOE s closing argument was almost identical to its opening, except without any reference to the equities. In its closing, the DOE stated that the evidence showed that a FAPE was offered to for the 2017-2018 school year. (T. 101)
The DOE did not offer any witness testimony and did not cross-examine the Parent s witnesses. (T. 69; 92) In addition, the DOE never presented any specific support for its generic statement that the DOE had offered a FAPE to The DOE did not specify or reference any evidence it was relying upon in making that assertion. Similarly, there were no facts presented with regard to the equities not favoring the Parent, only the blanket statement, in its opening, that they did not. The only active participation from the DOE was in its opening statement and closing argument. At those times, there was no challenge to the Parent s unilateral placement of at . The DOE remained silent in that regard, although it had ample opportunity to take a position, to oppose the Parent s position, or to otherwise actively participate in the hearing process.
THE PARENT’S CASE
is the Principal at , a small, private school specializing in working with students with moderate to severe developmental disabilities. The school has six classes, with a total of 38 students, grouped by age, developmental level, and peer interaction. Instruction is provided on a one-to-one basis using Applied Behavioral Analysis (“ABA”) as one of the methodologies. It is a highly structured hierarchy-based curriculum for addressing all of the specific goals that a student needs to master to go on to other skills. After a student is assessed and very specific information obtained, the data is used to create programs for the individual student. The school also uses the Developmental Individualized Relationship-based therapy (“DIR”), which works on all of the social and emotional skills a child needs. In addition to ABA and DIR, each department also uses various components of curricula relevant to their domain. (T. 25-29)
Each classroom at is staffed with: a master s level New York State-certified special education teacher serving as the team leader; a teacher s assistant working on their master s degree; and classroom instructors who may be at different stages of their education and run programs with individual students throughout the day.
(T. 30-31) classroom has seven students with six adults in the classroom at all times, plus numerous related service providers, one of whom is in the classroom at any time, accounting for the seventh adult in the room. All related service providers are New York State-licensed professionals with master s degrees in their area of expertise. (T. 31-
32) described the professional development provided to staff at the school. (T.
33-35) Most of the time, not all seven students are in the room together, due to related services and sensory diet breaks. When the whole group is in the room together, for a group activity by design or for lunch, can function with the support of someone sitting within his proximity to keep him on task. (T. 67)
first met during the intake process. Part of the process was for the school to assess whether they could meet his medical needs. As the recipient of a kidney transplant, he is on various medications, has a catheter and a feeding tube. This must all be monitored throughout the day. To ensure consistency and limited interruption in day, s nurse visited former school to learn how his medical needs were managed. has a weakened immune system and the school must be mindful about keeping his environment very clean. Every day there must be a thorough cleaning of the classroom with Clorox, there must be frequent handwashing, and monitoring of other children coming to school with anything could be exposed to. (T. 36-38) wears his feeding tube in a small backpack on his back so it does not detract from his learning at all, although there are some goals in place related to feeding. His medical issues do not impinge upon his day, with the exception of his twice daily visits to the nurse for catheterization. (T. 48; 55) has visited prior school, , several times, seen their classes in action, and is very familiar with the model they use, as it is similar to s model, minus the ABA component. s curriculum department worked with providers at his previous school to better understand his needs and also received reports from the school. (T. 39-40)
described how benefits from working with the various individuals in the classroom, rather than being assigned a designated one-to-one instructor. It is important for him to be able to respond to different individuals when working on his programs so that, by responding to each person s slight differences, he can generalize the skills he is learning. (T. 42-43) received speech therapy, physical therapy and occupational therapy at school. In addition, he receives mental health services from participating in a music group and an art group, as well as an individual music therapy session. (T. 44) The students in class are all boys falling within a similar developmental range, with communication and cognitive deficits that need to be addressed in a more structured setting. They were also grouped together because none of them tends toward aggression towards others or self-injurious behavior. They are all able to communicate on some level and also require some assistance with activities of daily living, although they do have some skills. (T. 44-47)
described as a very upbeat and social child. He loves being at school and loves his teachers and is very interested in his peers. One of his major communication deficits is that he is difficult to understand for an unfamiliar listener. He likes to work but is easily distracted. He needs assistance in navigating and communicating within peer groups. (T. 48-49) believes that has the capacity to become a reader. He is working on a phonemic awareness program created by his teacher and his speech pathologist. To work on communication deficits, he has a verbal imitation program, designed by the teacher, speech pathologist and curriculum specialist. vocabulary is very delayed and he uses the same words and phrases over and over again. has receptive and expressive programs to work on his vocabulary.
The staff uses modeling, introducing more words at the tabletop, and then using them in real situations, like a peer play interaction. (T. 50-54) has an unsteady gait at times.
He can ambulate through the building and use stairs; however, there is a protocol in place for someone to be behind him if he is going up stairs and stand in front of him if he is going down stairs. (T.54) To help with distractibility, different areas of the classroom are used, he takes breaks with something from his sensory diet, if needed, and gets reinforcements. The purpose of sensory diet is for him to be regulated and ready for learning. He can get overstimulated and benefit from brushing or deep massage.
The sensory diet is very effective for (T. 56-59)
believes that needs a small classroom with a lot of individualized learning throughout the day. A classroom of twelve students would be “extremely overwhelming for him.” He would be very distractible and, with more kids, there is more noise and more germs. testified that definitely made progress in the 2017-2018 school year. She described his progress in numerous areas, including:
regulation, attention, the length of time he can focus and the number and programs he can get through without a break. He has also made progress in his academics, following auditory instructions and phonemics. Group interaction has also improved with being able to listen to others. (T. 64-66)
is mother. She stated that, during the 2016-2017 school year, attended preschool at , in a class of seven to nine children.
described her participation in the CSE meeting on May 26, 2017. She received a telephone call from telling her that they were having the meeting at that time.
Therefore, she did not have the opportunity to be present in person. The meeting lasted approximately five to seven minutes, during which told her what he came up with. expressed to that a classroom with twelve children was too large for He stated that a smaller class, with six children, would be for children with autism. told that the recommended setting was not appropriate for
However, the short telephone meeting was not a back and forth discussion. Subsequent to the telephone meeting, received an IEP with the recommendation described by . (T. 70-76) received a call in September 2017 from two members of the CSE to discuss transportation needs and to amend the IEP to include special transportation services. must be on a bus with a very small number of students, to limit contact and germ transmission, and with a controlled temperature, since he can easily overheat and become dehydrated as a result of one of his medications. (T. 77-80)
confirmed that she and her husband had sent a letter to the DOE, dated August 8, 2017, regarding their concerns about the CSE s recommendation and their interest in visiting the recommended school placement. (Exhibit B) The DOE did not respond to the letter. and her husband visited the school and determined that the class size of twelve children was not appropriate for since the students were neither verbal nor mobile, as is, and he needs to be with children who are more similar to him and can serve as models. also explained that a class of twelve children is too big for because he is easily distracted and there is too great a potential for germ transmission. testified that the DOE had also failed to respond to a letter, dated August 18, 2017, sent by her attorney. stated that she definitely would have sent to a DOE program had an appropriate program been recommended and offered to him. confirmed that the tuition for to attend for the 2017-2018 school year was $98,000. Although the affidavit from the school, dated August 29, 2017, indicates that, as of that date, the Parent had not made any payment towards the tuition, the Parent subsequently made a payment of $5,000. explained why they are unable to afford to pay the tuition. (T. 80-89; 91-92; Exhibit P)
explained that although is called the
, there are “plenty” of children in class who do not have a diagnosis of autism. has children to socialize with and has appropriate models. (T. 76-77)
testified that is doing “fabulous” at and has made a lot of progress. She described that he is learning to follow instructions and to self-regulate, and his toileting, feeding and safety skills have improved. When has visited the school and observed from outside of the classroom, he looks very involved, is communicating with the other children, follows directions, and looks so happy to be there. She believes that was appropriately placed at for the 2017-2018 school year. (T. 89-91)
FIN INGS OF FACT AN CONCLUSIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.
Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
Subsequent to the creation of the IEP and the placement recommendation, the DOE failed to respond to the Parent s concerns, repeatedly expressed in writing. At the impartial hearing, the DOE did not take any steps to defend the CSE process, the IEP created, or, in any way, to establish that it had offered a FAPE to for the 2017-2018 school year. The DOE simply submitted documents without any further support or explanation. There was no testimony to even claim that a FAPE had been offered. An opening statement and a closing argument, made by the DOE s advocate, are not testimony, and serve no purpose if left unsubstantiated. The DOE has not challenged the evidence, testimony, or argument presented by the Parent in any way. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent s case. The DOE failed to offer a FAPE to for the 2017-2018 school year.
The Parent has the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.
3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the Parent s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000])
“The issue turns on whether a placement - public or private - is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The 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. 7 [1993])
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. , who is very familiar with and has personal and direct knowledge of his learning profile, weaknesses, and educational needs, agrees that s program was appropriate for for the 2017-2018 school year. and provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program and demonstrates that it was reasonably calculated to allow to make meaningful progress and to address his individual needs.
In fact, he made meaningful progress through his participation in the program.
Again, the DOE has not challenged the appropriateness of the program at in any way. No evidence has been offered to dispute the testimony presented. There was no cross-examination of the Parent s witnesses. As described above, there was no position taken or argument presented, even in the opening statement and closing argument, which were the only offerings from the DOE, with regard to the appropriateness of the Parent s placement.
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.
The final criterion for an award of funding or reimbursement is whether the Parent s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.
Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent s communication and cooperation with the DOE. There is clearly no basis on which to reduce or modify the remedy for the
Parent.
OR ER
1. The DOE failed to offer a FAPE to for the 2017-2018 school year;
2. The Parent s unilateral placement of at was appropriate for the 2017-2018 school year;
3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,
4. The DOE shall reimburse the Parent for the $5,000 payment made to toward the tuition for for the 2017-2018 school year, upon submission to the DOE by the Parent of proof of payment;
5. The DOE shall directly pay to the remaining tuition for for the 2017-2018 school year, in the amount of $93,000. Payment shall be made upon the submission of an invoice from to the DOE.
Dated: February 12, 2019
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City epartment of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education epartment under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with isabilities Education Act. The epartment of Education has designated the New York City Law epartment to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
STUDENT
A Email to DOE, 5/26/17, four pages
B Letter to , 8/8/17, three pages
C Email to DOE with attachment, 8/18/17, four pages
D Email to , 8/21/18, two pages
E DOE determination report, 8/25/17, two pages
F Email correspondence, 9/17, two pages
G Impartial hearing request, 10/6/17, 19 pages
H DOE acknowledgement of receipt of hearing request, 10/6/18, two pages
I Email correspondence regarding resolution, 10/25/17, four pages
J CPSE IEP, 5/3/15, 18 pages
3 K Report package, 5/3/15, 24 pages
L report package, 6/5/17, 29 pages
M Email to , 8/9/17, two pages
8 N '17/'18 weekly schedule, unidentified date, one page
O '17/'18 enrollment agreement, unidentified date, three pages
P Affidavit, 8/29/17, one page
Q webpage printout, 5/6/18, 30 pages
R annual review, 4/19/18, 17 pages
S 11/17/17 and 3/16/18 progress report, unidentified date, eight pages
T Curriculum Vitae of , unidentified date, unspecified number of pages
U '17/'18 schedule, unidentified date, one page
DEPARTMENT OF EDUCATION
1 IEP, 5/26/17, 20 pages
2 Classroom observation, 1/18/17, one page
3 Social history update, 1/20/17, one page
4 OT progress report, 5/18/16, five pages
5 PT progress report, 6/12/16, three pages
6 Special instruction progress report, 6/15/16, six pages
7 Speech progress report, 5/15/16, three pages
8 Prior written notice of recommendation, 5/26/17, four pages