Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 172649

NYS Identifier Number: Student’s Name: Date of Birth:

Region:

Hearing Requested By: Parent

Date(s) of Hearing: 3/19/19; 6/5/19

Actual Record Close Date: 11/6/19

Hearing Officer: Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

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 22, 2018. (Exhibit A) The hearing was held on March 19, 2019, and June 5, 2019, 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 anda list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, 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 §200.5g)(5)G0)]

BACKGROUND

At the beginning of the 2017-2018 school year, was old. He attended the (“the ”) throughout that school year. He had been given the classification of “autism” by the DOE’s Committee on Special Education (“CSE”’).”

He has a diagnosis of Autism Spectrum Disorder. The CSE convened on April 26, 2017, and created an IEP for for the 2017-2018 school year. (Exhibit 1) The CSE’s recommendation was for placement in a non-specialized school in a special class with a 12:1:1 ratio for math, ELA, social studies, and sciences. In addition, the CSE recommended the related services of group counseling, individual occupational therapy, individual speech-language therapy, group speech-language therapy, and group parent training and counseling.

The Parent asserts that the DOE failed to provide a Free Appropriate Public Education ( “FAPE”’) to for the 2017-2018 school year and is seeking tuition funding for the unilateral private placement at the . By letter dated August 9, 2017, the Parent notified the DOE that she was told by the proposed school that she could not visit until September and, therefore, she could not yet determine whether or not it was appropriate. (Exhibit B) She also expressed her concerns with the content of the IEP and requested additional information regarding the public school program. By letter dated August 23, 2017, the Parent wrote to follow up on the first letter.

(Exhibit C) She reiterated her concerns with the IEP and her inability to visit the school until September. She repeated her request for information. The Parent added that would begin the 2017-2018 school year at the until she could visit the proposed placement. By letter dated September 25, 2017, the Parent again followed up, citing her two previous letters. (Exhibit

D) She confirmed that she had finally been able to visit the proposed placement and found it inappropriate to meet *s needs. The Parent provided details with regard to the aspects of the program and placement that would not be appropriate for She informed the DOE that she would be continuing ’s enrollment at the , based on her concerns, as well as the DOE’s failure to provide any of the requested information. The DOE did not respond to any of the Parent’s letters. By letter dated February 22, 2018, the Parent requested this impartial hearing and is seeking funding for his enrollment at the for the 2017-2018 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE

is a teacher assigned to the CSE. She participated in the CSE meeting held on April 26, 2017, for as the special education teacher and the district representative.

The other DOE representative present at the meeting was a school psychologist. She was not the psychologist who conducted the evaluation in February 2017 that was considered by the CSE.

(Exhibit 2) Ms. acknowledged that it may have been helpful for that psychologist to have participated in the CSE meeting. The Parent participated by phone, as did

L ’s classroom teacher at the time. There was no general education teacher present. (T. 21-23; 43-44) Ms. testified that the information contained in the IEP, under “Present Levels of Performance,” came from a psychoeducational report. Other sections of the IEP contain information from that report, as well as from progress reports from iS school, including the occupational therapy report. (T. 24-26; Exhibit J) Ms.

described the recommendation made by the CSE as a 12:1:1 special class in a community school with related services. She stated that, “Based on the information that was available, it was the most appropriate recommendation at that time.” Ms. was asked about all of the goals contained in the IEP and she testified as to the purpose of each goal and how it addressed a deficit area for (T. 27-40) Ms. could not recall if there were any disagreements at the meeting regarding the recommendation, the related services, or the goals. She did not recall the Parent or ’s teacher expressing concerns about the size of the class recommended.

She also could not recall what ’s current class size was at the time at his current school, . She stated that she is not involved in recommending a particular placement site. (T. 40; 42) Ms. stated that she trusted the information provided by ’s school since those were the professionals working with him extensively on a daily basis. (T. 46-47)

THE PARENT’S CASE

has been the Curriculum Director of the for twenty-one years. In her position, Ms. meets with teachers at the beginning of the year to review reports of students and to discuss teacher testing. They develop academic and behavioral goals for the students at that time. Ms. meets with the teachers on a weekly basis to review lesson plans, and to suggest different methods, strategies and materials. She observes the students in the classrooms and collaborates with their related service providers. (T. 55-56)

Ms. explained that the school offers a self-contained “small, structured program servicing students who are unable to make progress in a mainstream setting.”

. She described , whom she first met as a student in September 2017, as a sweet, bright boy who likes to learn, but has many factors impacting his progress academically, socially, and behaviorally. His deficit areas include expressive, receptive and pragmatic language skills. He is “extremely distractible,” has difficulty focusing, works quickly and impulsively, has weak fine motor skills, and presented at the beginning of the year with feelings of insecurity and anxiety. For the 2017-2018 school year, was in a class of seven students grouped together because they were a good fit in all aspects. (T. 57-58; 61; 88-90) The seven students are taught by a teacher and two assistants for the morning half of their day, so they can be broken down into small instructional groups. For their afternoon classes, they are with one teacher, since those are not the classes that require as much individualized instruction. (T. 126-127) Ms. described the professional training that is provided to staff throughout the year, and the collaboration between the classroom teachers, the assistants in the classroom, and the related service providers. (T. 59-60)

Ms. testified that really needs very small group instruction in order for him to receive the attention he requires. He needs a teacher next to him, to prompt him and provide reassurance to him, also working with his behavior modification plan to get him to focus, stay seated, and complete his work. was in an instructional reading group of two students. Ms.

described the programs used for reading and the areas in which he made progress throughout the year. (T. 62-64) *s math instruction was also provided in a group of two. Ms described the programs used and the progress he made throughout the year. (T. 64-66)

Ms. also described ’s language, communication, social, behavioral and emotional needs, the manner in which they were addressed in the classroom and with related services, and the progress he made in all of those areas. (T. 66-70)

Ms. described the educational plan that was created for for the 2017-2018 school year, which contained academic and social-behavioral goals, as well as specific methods and materials to be used. (T. 71-72; Exhibit H) She also described a typical day for and explained his written daily schedule. (T. 74-76; Exhibit G) Ms. clarified that S a Reading” class, three times a week, is decoding and phonemic awareness. There is no ; a state-approved text is used. . The only component of the schedule is the fifteen minutes scheduled as (T. 77-78) received the related services of occupational therapy, speech and language therapy, and counseling at the during the 2017-2018 school year. The providers all hold

New York State certification in their respective fields. Ms. described the teachers as “vigilant in keeping up with what skills were being incorporated in the related service providers’ sessions so that they could reinforce it throughout the day.” (T. 78-80)

Ms. explained that, throughout the year, had opportunities to interact with typically-developing peers during special sports events, during a book fair, as well as during social studies or science fairs in which would present his research project to visiting students from other schools. The students also visited a park on a weekly basis, weather permitting. During those mainstreaming opportunities, definitely needed the support of his teachers. (T. 72-73) Ms. expressed her opinion that, in a general education environment, would be very frustrated and anxious. He gets very upset if he is feeling overwhelmed with the work that is presented to him, is unable to focus and cannot complete the work. (T. 73-74)

Ms. stated her opinion that the CSE’s IEP for does not adequately describe the full range of ’s educational needs. It lacked many management needs that were crucial for him, such as modified worksheets, a posted schedule, and scheduled breaks within his daily schedule. He also needs a specific behavior modification program to target certain behaviors, using praise, encouragement, and incentives. He also needs multi-sensory materials due to his high level of distractibility and attentional deficits. In addition, he requires specific social skill instruction throughout the week. The IEP indicated that does not need positive behavior interventions, although it is very clear that his behaviors impact his progress. Ms. also identified how the IEP goals were deficient. (T. 80-85) Ms. testified that she “strongly” feels that the CSE’s recommendation would not be appropriate for because it would not provide him with the level of individual instruction he needs, the supports he requires, or the encouragement necessary. He needs a teacher near him to prompt him, refocus him and mark off his behavior plan. The work presented to him must to be very individualized for his needs. (T.

87) Ms. believes that the was appropriate to meet ’s overall needs in the 2017-2018 school year and that he made significant progress academically, socially, and behaviorally.

(T. 87-88)

is *s mother. She stated that it was when was three years old that she first realized he required special education services. He was diagnosed with autism and attended a preschool program for one year, followed by a special education program at for three years. described the CSE meeting on April 26, 2017. She testified that she had expressed her disagreement with the classroom size recommended because he requires a smaller class size, a lot of attention with more people to work with him, and a quieter environment.

Subsequent to the meeting, received a school placement letter, dated July 17, 2017, recommending at . (Exhibit P) Following receipt of the letter, called the school to schedule a tour. She was told to visit in September, at the beginning of the school year.

sent a letter to the DOE, dated August 9, 2017, which included, among other things, a request for additional information. (Exhibit B) did not receive a response from the DOE.

sent another letter, dated August 23, 2017, to follow up on her first letter. (Exhibit C)

did not receive a response from the DOE. When she visited the school in September, was shown a 12:1:1 second grade classroom, although was functioning on a kindergarten level. Behaviorally, the students would not be the right peer group for , and there was no social skills component. There were too many students and a lot of noise. This was also true of the school itself. There would be approximately sixty students going to lunch at the same time.

The rooms visited were very cluttered which is another distraction for It was still the summer during her visit and she was told that the building’s air conditioning had stopped working and that there is no air conditioning system at all in the stairways. The temperature is very important for to help relax him due to his sensory and anxiety issues. The school did not have the sensory equipment that needs due to the extent of his sensory issues. is on a gluten-free diet and, according to the school, they do not have staff to monitor what he eats in the cafeteria. did not believe that the school was appropriate for Following her visit, she sent another letter to the DOE, dated September 25, 2017. (Exhibit D) did not receive a response from the DOE. (T. 127-147)

stated that, had the recommendation and the school been appropriate, she would have enrolled in public school “100%.” She enrolled at the and signed a contract making her responsible for the tuition, as well as an addendum making her responsible for related services. (Exhibit M) The combined total is has not made any payments because she cannot afford it based on her income. Her annual income, based on her

2017 income tax return, was approximately . (Exhibit O) described the progress she observed from ’s enrollment at the . His social skills improved and he became less isolated; he became better at sitting, although he has a lot of distractibility; and he improved academically. (T. 148-153)

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 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).

While the DOE presented a witness who had participated in the CSE meeting and in the development of the IEP, her testimony certainly did not establish that the DOE had offered a FAPE to for the 2017-2018 school year. Her testimony was far from sufficient to demonstrate that the DOE had offered a FAPE to The information that was provided at the CSE meeting, by those who were directly familiar with f and ’s then-current teacher, was disregarded by the CSE. The recommendation made was contrary to Ss indicated needs. The CSE completed the section of the IEP titled “Present Levels of Performance and Individual Needs” entirely with verbatim information from a psychoeducational evaluation conducted by the DOE on February 26, 2017. Other portions of the IEP appear to have been completed with the use of an “initial assessment” by , dated November 3, 2006, although that document was not presented in support of the DOE’s case. The evaluators and authors of the cited reports did not participate in the CSE meeting. The statements and opinions of the Parent, reflected in the IEP, appear to have been a combination of quotes included in the psychoeducational report and, perhaps, comments made by the Parent during the CSE meeting.

However, the IEP does not distinguish between which statements of the Parent were taken from the report and which were communicated at the meeting. There is also a statement attributed to ’s “individual behavior aid” contained in the IEP. This statement was also taken from the psychoeducational report. The IEP reflects one brief comment of ’s teacher, who was an actual participant in the meeting.

There were several significant areas which remained unaddressed at the conclusion of the hearing with regard to the IEP. The psychoeducational report was dated February 21, 2017, although the date of evaluation was February 26, 2017. The report, which was so heavily relied upon by the CSE, indicates “Grade: Kindergarten.” However, the IEP states that he was currently in an “ungraded program.” It further states that, “For the 2017-2018 school year, would be a second grader.” There was nothing in the record to reconcile the apparent recommendation that , a kindergartener in the 2016-2017 school year, be placed in the second grade for the 2017-2018 school year. In addition, there was no acceptable explanation offered, in the IEP or otherwise, for the recommendation of the CSE to place in a special class for four core subject areas, yet not to provide him with any special education support during all other times of his school day.

In the DOE’s opening statement, it was asserted that, “The evidence will show that the proposed placement would have been able to meet the needs of the student.” There was no testimony or documentary evidence presented to address any aspect of the proposed placement.

However, Ms. confidently testified that if a school was identified as “ at ; that would indicate that it is a placement.” It would mean that it is a placement housed within another school.

. (T. 45-46) The CSE indicated on the IEP, under “Other Options Considered,” that a “special class 12:1+1 in a specialized school is too restrictive at this time.” This consideration and rejection was reiterated in the “Prior Written Notice (Notice of Recommendation),” dated July 6, 2017, that the DOE sent to the Parent. (Exhibit Q) However, in the “School Location Letter,” dated July 17, 2017, the DOE notified the Parent that the program and placement offered was at .’ (Exhibit P) Ms. was clear as to the first piece of that placement and there is nothing in the record to indicate that the remaining numbers and letters change anything about it. Ms. ’s testimony cast serious doubt on the appropriateness of the placement, since it appears to be a program and since the CSE did not intend for to be placed in a program. The DOE chose not to present any witness testimony regarding the placement offer or the apparent error that would seemingly render the placement automatically inappropriate, as it was expressly rejected by the CSE.

For the foregoing reasons, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program she has 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, she 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.” ( 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])

The DOE’s main challenges to the Parent’s placement are the religious nature of the school, the restrictive setting with all boys, and the absence of general education students. The DOE’s position is that is too advanced for that environment. The record clearly demonstrates that the program met the ’s special education needs. The Parent’s position that the program was appropriate for and that it allowed him to learn and progress is supported by the record. The testimony of Ms. persuasively established the manner in which the school addressed all of ’s recognized deficit areas in order to allow him to make meaningful progress. Ms and described the progress made by during the 2017-2018 school year, and the progress reports from the school and the related service providers corroborate that progress. (Exhibits I, J, K, L) He made progress academically, socially, emotionally, and behaviorally.

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with determined and agree that the program was appropriate for for the 2017-2018 school year. Ms.

and provided persuasive testimony and evidence to this effect. The program was reasonably calculated to allow to make meaningful progress and to address his individual needs. In fact, made meaningful progress throughout the school year.

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).

There is no equitable basis on which to reduce or modify the remedy for the Parent. The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s continued communication and cooperation with the DOE.

However, the DOE raised two concerns that are relevant to the order in this case. S class schedule, along with the related testimony, established that a fifteen-minute period per day, five days per week, is scheduled for “ .’ In addition, a thirty-minute period, three days per week, is scheduled for “ Reading.” This represents a total of two hours and forty-five minutes per week that are considered , out of the total school time of twenty-seven hours per week. Therefore, ten percent of ’s school week is dedicated to study.

The DOE’s other issue was with the related services being charged for forty weeks. The separately calculates the related service charges based on an hourly rate and the number of weeks during the school year that the services will be provided. (Exhibit M) According to an affidavit prepared by the , the school year began on September 7, 2017, and ended on June 30, 2018. (Exhibit N) However, Ms. testified that the school year ends the week prior to the end of June. Therefore, the 2017-2018 school year, without any breaks, from September 7, 2017, through June 22, 2018, would have contained 41 calendar weeks plus the 2 days of the first calendar week of school. She also testified that, during the school year, there are three one-week breaks without school: ; , and . Therefore, the school year actually contained^[38] calendar weeks plus the first 2 days of the first calendar week of school, during which related services could have been provided. However, testified that started at shortly after the school year began. She visited after the school year had started and started “a little bit late.” (T. 171-172) Although his actual start date is unclear, he was not attending during the 2 days of the first calendar week of school. Based on the record presented, therefore, for the purposes of related services, there would have been a maximum of

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 5, 2019

Esq. Attorney Parent

Esq. Attorney Parent

Mother Parent

Curriculum Director (via telephone) Parent

Chairperson’s Designee, CSE Department of Education

AL’ - 4 i ° 72

2/22/2018 Impartial Hearing 4 Request

8/9/2017 Z Confirmation

8/23/2017 3 Confirmation

9/25/2017 3 Confirmation

4/11/2019 Attendance for ], 2017-2018

Undated 4. Program Description

2017-2018 | Daly Schedule for 1

—— — 2017-2018.

10/2017 13

February, 2018 Student Progress 2

Report

February, 2018 Occupational j Therapy Report

February, 2018 Counseling Progress i Report

February, 2018 Speech Progress; Report 9/7/2017 | |

Footnotes

[38] calendar weeks of related services provided to ORDER 1. The DOE shall directly fund ’s tuition at the for the 2017-2018 school year reduced by ten percent, which is equal to the percentage of instruction that has been deemed to be for ; Therefore, the tuition of $44,500, as specified in the Enrollment Contract signed by the Parent, shall be reduced by $4,450, for a total of $40,050 to be funded by the DOE. 2. The DOE shall directly fund the related services provided to by the for the 2017-2018 school year; however, that funding will be calculated for 38 weeks, rather than the 40 weeks, as specified in the Addendum to the Enrollment Contract signed by the Parent and the Therefore, instead of $10,800, the total amount for the related services to be paid by the DOE is $10,260. NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2019 , Esq. Attorney Parent (via telephone) Chairperson’s Designee, CSE DOE Teacher Assigned DOE (via telephone)