New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 172544

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 9, 2018

Actual Record Closed Date: March 15, 2019

Hearing Officer: Amy Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 9, 2018

_ Esq. Attorney Parent

Mother Parent

Principal (via telephone) Parent

Representative Department of Education

INTRODUCTION

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 Parent! by letter dated February 14, 2018. (Exhibit A) A hearing was held on November 9, 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 *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 §200.5G)(5)(1)]

BACKGROUND

isa boy who entered the 2017-2018 school year as a He has been classified by the DOE’s as a student with “autism.” Prior to the 2017-2018 school year, the ’s last meeting to develop an Individualized Education Program (“IEP”) for had been conducted on

' The term “Parent” is used to collectively refer to both of parents. Letters from the Parent to the DOE, referred to herein, were written by i mother, on the letterhead of both parents. Testimony at the impartial hearing was provided by father. November 22, 2016. The DOE conceded that there was no annual review conducted for the 2017-2018 school year.

By letter to the , dated August 28, 2017, the Parent notified the DOE of their plan to unilateral place at the for the 2017-2018 school year and to seek funding from the DOE for the placement. (Exhibit B, 3-4) By letter dated December 13, 2017, the Parent notified the DOE that required a “more intensely supported and therapeutic environment than the is able to provide.” (Exhibit B, 1-2) As a result, the Parent wrote, the Parent would be placing at the beginning on January 2, 2018, and for the remainder of the 2017-2018 school year. The Parent stated that tuition funding would be sought from the DOE for enrollment at for the period from January 2, 2018, through June 30, 2018. By letter dated February 14, 2018, the Parent requested an impartial hearing claiming that the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to for the 2017-2018 school year. The Parent’s requested remedy included, in part, reimbursement of, and prospective payment for, the tuition at both the School and for the respective periods during the 2017-2018 school year that was enrolled in those schools. (Exhibit G) At the impartial hearing, the Parent withdrew its remedy requests with regard to the , transportation, the costs for related services outside of those provided by , and compensatory education. (T. 20-21)

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE’s opening statement consisted of an explanation of why the DOE would not be presenting witnesses and would, instead, be “resting their case today.” (T. 18) Apparently, the DOE’s pre-hearing process of investigating the case had not concluded and the DOE’s attorney had not “made a determination as to whether the case should proceed, nor have they made the determination as to whether the case would be accepted for settlement.” That was the extent of the DOE’s opening statement. The DOE did not assert a position or raise any opposition to the allegations contained in the Parent’s hearing request in the opening statement. In response to questions from the Impartial Hearing Officer, the DOE took the position that the IEP created for the 2016-2017 school year continued into the 2017-2018 school year; “we are challenging Prong II in this case,” and, with regard to the equities, that, “we’re not sure yet we need to hear, regarding testimony, in order to decide whether there are Prong III issues.”

At the conclusion of the impartial hearing, in lieu of making oral closing arguments, the parties requested the opportunity to submit post-hearing written briefs. Upon receipt of the transcript of the hearing, the parties agreed to a deadline of January 15, 2019, for submission of their briefs. The Parent’s brief was timely received. The DOE ultimately opted not to submit a post-hearing brief. Therefore, there is no record of any argument by the DOE challenging the Parent’s unilateral placement. In addition, there were no equitable considerations raised by the DOE.

THE PARENT’S CASE

is the Principal at . She explained that there are in the school. There are three programs serving those explained that began at in January 2018. He was place in the “ ‘ program, which is the program designed for who are intellectually . During time at during the 2017-2018 school year, from January through June, had many opportunities to interact with him, including daily visits to his classroom. In addition, she had a few one-on-one experiences with in the first after he arrived, due to his with staff, not wanting to attend class, often . As a student on the autism spectrum, these were due to severe social skills deficits and being an extremely rigid thinker. worked with . for approximately two hours for each occurence, using collaborative problem solving and debriefing the situation. also had many conversations with teachers, counselor and speech therapist. In addition to her one-on-one meetings with following a few incidents, there were many times that had to be taken out of the classroom to deescalate. This occurred approximately four to five times per day, for five to fifteen minutes, in his first three months at , had a one-to-one paraprofessional who was trained in collaborative problem solving, as is the whole staff. By the end of the school year, need to leave the classroom to deescalate with his paraprofessional was reduced to approximately twice per day. By then, had “really become very good at being able to monitor himself, recognizing that he didn’t need to be .’ (T. 25-35) testified that she saw turn into a student with a very positive attitude who seems happy to be involved in his classes and activities. (T. 48) classes had a ratio, which was , one teacher, and one teaching assistant, possibly, with the exception of one class that had a couple of more . The in classes were all within a age range. During lunch, there would be in the cafeteria. For the first two months of the school year, had and would eat separately. By mid-March, he was enjoying lunchtime and would eat in a group of . (T. 42-43; 55) participated in vocational work at a from the school. He was able to leave the appropriately. He enjoyed the work of . He was proud of himself. also loved the therapy program. (T. 48-49) argi described career development, life skills, and social thinking classes. (T. 49-51) She also explained the manner in which measures progress, the professional development requirements of the staff, and the methods of communication among the staff. There are twice monthly meetings of the whole staff and twice monthly individual team meetings. There is professional development throughout the year, a full week of staff training in August, and monthly training on collaborative problem solving. (T. 51-52) explained that, in the beginning of the school year, was going to the nurse’s office frequently and had been picked up by his mother twice in a two-week period. After a team meeting, which included the nurse, it was determined that the visits to the nurse’s office were due to task avoidance. Following the meeting, and an understanding among everyone, including mother, that, if Jjjjdid not have a fever he would not be sent home, it did not happen again. (T. 47)

During the 2017-2018 school year, received the related services of speech and language therapy once a week in a group to work on his conversational skills. He received both individual and small group counseling. When began at , the school created goals for him and a related services mandate. (T. 43-45) liardi stated that, in addition to and social-emotional progress throughout the school year, he did very well academically. (T. 54) is father. He described as a very high functioning rigidity of thinking and oppositional can be misconstrued since he does not really present as autistic. Most of his and oppositional. . described educational placements. Prior to attending , attended public school. In , upon the advice of teacher, obtained a neuropsychological examination for At that time, was told by the doctor that presented with ADHD and, maybe,^[2] ? From through the , attended a gifted and talented program. explained that teachers would call to report inappropriate and . had a hard time coping with the classroom environment. would receive calls to pick up from school. was not receiving adequate support and his presented problems. However, he is very intelligent and was managing all of his academic work. In the , was transferred to a different school and placed in the program. For the grades, attended a public middle school and participated in the transitional program. (T. 62-66)

testified that throughout middle school, there were frequent calls from school related to or calls regarding claims that he was ill, which were not true. Throughout that time, was very , both at school and at home. During , went for a one-day orientation to , where he would attend high school with other from his program. There was insufficient support during the orientation. became extremely upset and had to Thereafter, the Parent learned that, although was supposed to be tracked with his peers into a continuation of the program at , the school had made an error and, instead, designated him for the program for with intellectual disabilities and severe autism. By the time this was discovered, had lost his place in the program and there was no other alternative to the program in which was incorrectly placed. At that point, the Parent determined that placement at would be “utterly inappropriate,” since, in addition to being place in the wrong program, was a much larger, noisier, and less structured school than middle school, in which he had not had a positive experience. (T. 66-69) explained that was unilaterally placed at the School at the beginning of the 2017-2018 school year. He attended for approximately three months, during which time he was getting into fights and was suspended. The school informed that Parent that there was not enough support for him there. While looking for another school for to attend, which is difficult mid-year, the Parent provided textbook and online materials to so he could continue to do some academic work. In January, the Parent placed at stated that he observed a decrease in at home following his placement at ; enjoyed the equine program and was excited by the vocational program. stated that he was struck by the way the collaborative problem solving approach they use at transferred into at home. developed a new ability to understand and evaluate his reaction to a problem. (T. 72-75) testified that his family cannot afford the tuition at . He has paid towards the tuition for the 2017-2018 school year. He is seeking reimbursement for that amount and that the remaining balance of the tuition by paid directly by the DOE.

(T. 76)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that 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 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).

The DOE did not take any steps at the impartial hearing to establish that it offered a FAPE to P.E. for the 2017-2018 school year. The DOE acknowledged that there was no annual review held for jj for the school year. (T. 23) The claim made in the opening statement that the IEP dated November 22, 2016, continued into the 2017-2018 school year is absurd. The IEP had an implementation date of December 8, 2016, and a projected date for the next annual review of November 23, 2017. The IEP served to continue Jj.’s current program and placement that had already begun for the 2016-2017 school year. It makes no sense that he would even plan for an annual review to take place over two months into the following school year. In any event, there was no meeting or IEP development in advance of the 2017-2018 school year. The DOE certainly does not have the option of extending the 2016-2017 IEP and applying it to the 2017-2018 school year in lieu of convening the and conducting an annual review. This was a desperate assertion presented at the impartial hearing in the complete absence of any legitimate position. Even in the IEP itself, under “Coordinated Set of Transition Activities,” the wrote, “[ will continue to receive instruction through an integrated co-teaching setting this year. The service he receives next year will depend on the high school program he is accepted into.” Therefore, the clearest statement in opposition to the DOE’s assertion that the IEP continued into the next school year came from the , on the face of the IEP. The made the specific distinction between “this year,” to which the TEP applied, and “next year,” for which a program of instruction would be determined based on acceptance into a high school program.

The DOE failed to convene its and to develop an IEP for for the 2017-2018 school year. 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|——|| with_a Disability, Appeal No. 95-57; Application of a 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{ —_|_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 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, described how ’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.

The DOE has not challenged the evidence, testimony, or argument presented by the Parent in any way. The only reference to the DOE’s position that the unilateral placement was not appropriate was in response to a question by the Impartial Hearing Officer. The response was that, ““We are challenging Prong II in this case.” There was no further position taken or argument presented 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 in the development of an IEP or if the parent's conduct precluded the '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 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.

ORDER

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 period from January 2, 2018, through June 30, 2018, of 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 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 , and the cost of related services provided to . at in the amount of . (Exhibit K) Payment shall be made upon the submission of an invoice from to the DOE.

Dated: April 8, 2019

Yong Vila me

AMY ITLZA, ESQ.

Impartial Hearing Officer

Al:mv

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department 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 Hearing request with proof of receipt, 2/14/18, nine pages

B Parent correspondence, 12/12/17 and 8/28/17, four pages

C institute of neuropsychological, 6/27/17, 33 pages

D research evaluation, 1/11/18, six pages

E academic annual review, 5/12/18, five pages

F speech language therapy annual review, 5/18/18, two pages

G social-emotional 45-day report, 5/17/18, two pages H 2017/2018 2017/2018 progress reports, 2017/2018,seven pages

I IEP and JEP progress goals, 11/22/16, 19 pages

J School schedule, 2017/2018, one page

K contract, 2017/2018, three pages

L Tax return, 1040 form, 2017, two pages

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Footnotes

[2] later received a diagnosis of Autism Spectrum Disorder, which was accepted by the DOE, as reflected in his IEP classification and educational placements.