New York City Department of Education, Impartial Hearing Decision

Findings of Fact and Decision

Case Number: 175165

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: March 13, 2019

July 17, 2019

August 9, 2019

August 16, 2019

Actual Record Close Date: January 13, 2020

Hearing Officer: Suzanne M. Carter Name of Person Who Appeared — July 17, 2019

For the Student:

ESQ., Attorney

ESQ., Attorney

parent

For the Department of Education:

ESQ., Attorney

supervisor of Psychology (Via Telephone)

Assistant Principal, (Via Telephone)

Name of Person Who Appeared — August 9, 2019

For the Student:

ESQ., Attorney

Director of Special Education at (Via Telephone)

For the Department of Education:

ESQ., Attorney

Name of Person Who Appeared — August 16, 2019

For the Student:

Advocate

parent

For the Department of Education:

ESQ., Attorney

ESQ., Attorney

INTRODUCTION

On April 4, 2019 after recusal of another impartial hearing officer (THO), I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of Student. By due process complaint dated July 9, 2018, Parents (singular or plural as necessary) allege the Department of Education (DOE or Department) failed to offer a free and appropriate education (FAPE) to Student for 2018/19 school year. Ex. A. Parents base their claim on an alleged procedurally and substantively flawed an educational planning process, and alleged denial of a free and appropriate education (FAPE) for Student.

DUE PROCESS COMPLAINT

For the 2017/18 school year (SY), Student attended ( ) at district expense, as the result of an [HO decision dated April 27, 2018. Ex. B. In a due process complaint notice dated July 9, 2018, the parent requested a hearing on pendency or stayput seeking “Full Tuition at (which includes academics, therapies and a 1: 1 professional during the school day) and special transportation accommodations (which includes limited travel time of 60 minutes, wheelchair-accessible vehicle, A/C, flexible pick-up/drop-off schedule, a paraprofessional and porter service.” Ex. A. Parents unilaterally placed Student at even though was still available to Student. Parents then asserted pendency was based on the unappealed April 27, 2018 decision alleging that was substantially similar to . Ex.

B.

PROCEDURAL HISTORY

The previous [HO issued an order granting pendency at . She took testimony on March 12 and March 13, 2019 with admittance of Parent Exhibits A-F, H-N, S,T and Department Exhibits 1-11. After my appointment, on May 3, 2019, a prehearing conference was held. Impartial hearings took place on three nonconsecutive days: July 17, August 9, and August 16, 2019. Parties submitted post-hearing briefs on October 11, 2019 as Ex. U and Ex.12, respectively. The record closed on January 13, 2020.

FINDINGS OF FACT

The following facts are not in dispute. Student is entitled to special education in a 12-month program, related services, 1:1 paraprofessional, assistive technology device and special education transportation.

The following broad categories are in dispute concerning the development of an IEP for the 2018/19 SY: CSE composition, meeting notices, disability classification, programming, and quantity and duration of related services.

At all times, beginning with the March 2018 CSE meeting, Parents were represented by an experienced advocate or attorney from . From the onset of the case, the [HO frequently reminded the parties of the need for a well-developed record, including credible witness testimony and documentary evidence to assist the trier of fact.

1. The Department Provided Student with a FAPE for 2018/19 SY

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404[1][c]; RE. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The hearing is governed by the Burlington/Carter test, which has three prongs: “(1) the DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them.” M.W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. N.Y.

2013) (footnote and citations omitted). To reach a determination, the hearing officer conducts a two-part inquiry that first assesses procedure and second addresses substance to determine whether the state has complied with the IDEA.

Not every procedural error renders an IEP inadequate. A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009) (citation omitted). Regarding parental reimbursement, procedural violations entitle parents to reimbursement only if the violations “impeded the child’s right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the decision making process,” or “caused a deprivation of educational benefits.” /d. (citations omitted) (emphasis added). However, multiple procedural violations may cumulatively result in the denial of a FAPE even if individual violations do not. /d. (citation omitted). “Substantive inadequacy automatically entitles the parents to reimbursement.” 7.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014) (internal quotation marks omitted)). Alleged procedural violations are discussed below.

To be substantively adequate, an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). TEP development is fact-intensive. /d. It requires school officials with the prerequisite expertise and input from the parent. /d. “The IEP must aim to enable the child to make progress.” /d. “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’[i|ndividualized education program.’” /d. (citation omitted). An IEP is not a form document with checkboxes. /d. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. /d. (citation omitted).

Therefore, “[a] school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement,” A.M. v. N.Y. City Dep’t of Educ., 845 F.3d 523, 541 (2d Cir. 2017). And, similar to the qualification in the standard announced by the Supreme Court in Endrew F., the Second Circuit has long held that “fa child’s academic progress must be viewed in light of the limitations imposed by the child’s disability.” Mrs. B., v. Milford

Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997) (citation omitted).

The second part of the analysis is whether any substantive violations occurred. Parents allege the following violations: failure to reconvene after the March 15, 2018 meeting; misclassification of the Student’s disability; failure to identify highly intensive management needs; failure to recommend related services of a sufficient frequency and duration; failure to recommend appropriate services and goals; and predetermination. The obligation of the DOE is to provide a FAPE in accordance with the Student’s needs while ensuring that it complies with federal, state, and city regulations. On the other hand, is an “independent, not-for-profit educational organization” that can operate in any manner it chooses without running afoul of the IDEA.

A. Timeliness of annual review and triennial review

The IDEA requires a Committee on Special Education (CSE) to review and, if necessary, revise a student’s IEP at least annually. 8 NYCRR 200.4[f]. A school district must have an IEP in effect at the beginning of each school year for a student with a disability. 8 NYCRR

200.4[e][

1] [ii].

DOE sent Parents a meeting notice dated February 27, 2018 for the IEP meeting to be held on March 19, 2018 at 12:30 pm. Ex. 2. The notice also stated: “The IEP Meeting must be held no later than 01/30/2018.” Jd. The January 30, 2018 date was the annual review compliance date: the date by which DOE must conduct an annual review for Student. ; supervisor of school psychologists, testified she was unsure if the compliance date was accurate because Special Education Student Information System (SESIS) prepopulates fields. Tr. 225.

The March 2018 CSE meeting may have taken place approximately two months after the one-year deadline for the student’s annual review, possibly constituting a procedural violation of the IDEA. However, this delay, if any, in developing the student’s IEP was not significant, and it did not prejudice the student inasmuch the March 2018 IEP was to be implemented starting July 2018 for the 2018/19 SY. Ex. 6. Accordingly, the hearing record does not support a finding that the failure to convene a CSE no later than January 30, 2018, assuming arguendo this review date was correct, impeded Student’s right to a FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(Gi); 34 CFR 300.513(a)(2); 8 NYCRR 200.5[j][4] [ii].

B. Composition of March 15, 2018 CSE

Pursuant to 8 NYCRR § 200.3[a][1], the membership of each CSE shall include, but not be limited to: the student’s parent(s), a special education teacher, a regular education teacher if the student participates in a regular education program, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician, a parent of another student with a disability, and other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE.

The March 2018 CSE meeting did not include a school physician.^[1] The meeting notice dated February 27, 2018 advised Parents of the right to have a school physician to participate with sufficient notice to the CSE. Ex. 6. At no time before the meeting or at the meeting did Parent exercise that right. Parent’s testimony that she requested a school physician on the day of the meeting is not credible. Tr. 585. Parent was represented by an experienced advocate at the March 2018 CSE meeting and he did not object to the meeting going forward without a school physician. Because Parent waived that right, no procedural violation occurred.

The meeting did include Student’s special education teacher and related service providers from even though they were not named on the February 2018 meeting notice, an inconsequential violation. Ex. 2. Reports and views of the meeting members were “discussed extensively”. Ex. A. The meeting lasted nearly four hours as shown in the CSE meeting minutes.

Ex. In summary, I find that the CSE team was duly constituted on March 15, 2018 because Parents did not object to the absence of a school physician. Secondly, Student’s special education teacher and related service providers from also participated.

In order for a procedural violation, such as the failure to complete a reevaluation of the student within three years from the student's last evaluation, to constitute a denial of FAPE it must impede the student's right to a free appropriate public education, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits. 20 U.S.C. §1415[f][3][E] [ii]; 34 CFR 300.513[a][2]; 8 NYCRR

200.5[j|[4][ii]. Parent alleges that because a triennial review had not been conducted the CSE lacked current evaluative data to develop an IEP. However, to the contrary, I find the CSE had ' The two cases cited in Parent’s closing brief in support of a school physician attending the CSE meeting are inapposite. sufficient data from Student’s progress reports with present levels of performance and IEP as well input from the teacher and related service providers. Parent also correctly notes that the meeting was held shortly before the three-year cutoff point, thus making the CSE in compliance.

C. Request for CSE to reconvene for 2018/19 SY

After the CSE met on March 15, 2018, by letter dated April 20, 2018, Parents requested a reconvene of the CSE to review the March 15, 2018 IEP. Ex. M. Parent specifically requested for a school physician to participate in person and for Student’s teachers and related service providers to also participation. Regulations require the request for a school physician to be made

72 hours in advance of the meeting. See 8 NYCRR §200.3[a][1][vii]. Parent, however, does not cite to any authority that the physician must attend in person. Telephonic appearances are acceptable. This request for in-person attendance of a school physician appears to be a litigation tactic Parent also wanted to discuss the decision issued by IHO . Alleged failure of the CSE to reconvene for the purpose of addressing the IHO decision is not before this [HO and does not factor into any analysis.

In the same letter, Parent also requested the CSE to consider a placement in a non-public school, and conduct any necessary evaluations for such consideration prior to the meeting. Ex.

M. The CSE was not required to schedule evaluations for the Student in consideration of a nonpublic school placement because it had already determined a setting was appropriate for Student. Parent required the meeting to take place on a Wednesday or Thursday afternoon and requested to first receive proposed dates and times for scheduling purposes. The meeting also had to take place at but Parent did not explain why. The letter also stated that recent progress reports would not be sent until a meeting was scheduled. These restrictions demonstrate Parents were not fully cooperating with the IEP review process.

The DOE did not respond to Parent’s request to schedule another meeting with a “school physician” and members. When the district determines not to grant the request, it must provide the parents with written notice of its refusal, "including an explanation of why the [district] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student". Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; see 34 CFR

300.503; 8 NYCRR 200.5[a]. However, a district's failure to comply with procedural requirements of the IDEA only constitutes a denial of a FAPE if the procedural violation deprived the student of educational benefits or significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. 20 U.S.C.§ 1415[f][3][E][i]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5D][4][ii]). No such violation of FAPE occurred. This is unlike case in which the CSE has not yet conducted a required annual review or reevaluation meeting, has not yet completed an IEP, or in which the parent has not already participated in the development of the IEP. See, e.g., Application of a Student with a Disability, Appeal No. 19-076). Here, Parent had a nearly four-hour long meeting with staff and sufficient information about the Student. Furthermore,she did not object to a school physician not being present.

By letter dated June 21, 2018, Parent sent a statutory 10-day notice letter to DOE. Ex. N.

This letter also repeated the request to have an IEP meeting with “all mandated members”

Parents state 8 NYCRR §200.4 required the DOE to have reconvened a meeting within 60 da

Failure to reconvene a meeting for the 18/19 SY after receiving the 10-day notice is not a per se denial of FAPE because Parent participated in the March 15, 2018 meeting without objection. Second, Parent failed to provide any new and material information to the CSE for consideration.

It is evident that Parents were never going to accept a public school placement because Student has never attended one. Tr. 579-80,

D. Disability classification

The IDEA requires public schools to provide special education and related services to eligible students. To be covered, a child’s school performance must be “‘adversely affected” by a disability in one of the 13 categories. The IDEA provides that a student’s special education programming, services, and placement must be based upon a student’s unique special education needs and not upon the student’s disability classification. 20 U.S.C. § 1412[a][3] (“Nothing in this chapter requires that children be classified by their disability so long as each child... is regarded as a child with a disability under this subchapter’).

“[I]t is not the classification per se that drives IDEA decision making; rather, it is whether the placement and services provide the child with a FAPE.” MR. v. S. Orangetown Cent. Sch. Dist., No. 10-CV-1800 (CS), 2011 U.S.

Dist. LEXIS 145177, at *28 (S.D.N.Y. Dec. 16, 2011). New York, unlike some other jurisdictions, allows just one classification on an IEP. Parents assert the DOE changed Student’s classification from traumatic brain injury (TBI) to multiple disabilities without having supporting information. However, use of this classification seems to be predicated on ’s teaching style, rather than as defined in the IDEA. Although the March 23, 2018 order directed the CSE to change the Student’s classification to TBI, that order was confined to the 2017/18 school year.

The CSE was not obligated to use the TBI classification for the 2018/19 school year IEP.

Traumatic brain injury is defined as an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with resulting impairments that adversely affect educational performance. The term includes open or closed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgement, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital or caused by birth trauma. See 8 NYCRR

200.1[0z.][12] (emphasis added).

In contrast, multiple disabilities is defined as concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. See 8 NYCRR 200.1[zz][8]. (emphasis added).

Student presents with global developmental delay, seizure disorder, cortical visual impairment, and dysmorphic facies. Ex. T. He requires a GJ-tube for feeding. /d. He is nonverbal and nonambulatory. , educational director for , opined the Student’s seizures meant he had an “acquired brain injury.” Tr. 498. This is the sole reason for using the classification of TBI.

In contrast, the Parent testified Student’s brain injury occurred shortly after birth. Tr. 546.

Thus, a rationale reader could infer birth trauma is the etiology of Student’s overall disabilities.

Seizures as an acquired brain injury could adversely affect educational performance. However, multiple disabilities is the better classification for Student because it considers all of his impairments. Parents and the district can continue to disagree on the Student’s classification without denial of a FAPE.

E. Classroom ratio and management needs

New York State Education Department (NYSED) Commissioner’s Regulations define management needs as “the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction.” See 8 NYCRR

§200.1 [ww] [3]. Accordingly, management needs must be identified and developed in accordance with academic achievement and the student’s unique learning characteristics, and the social and physical development needs of the student.

The argument is whether Student should be in a 6:1:1 or 12:1 + (3:1) also known as a 12:1:4 classroom. NYSED Commissioner’s Regulations mandate that the maximum class size for students whose management needs are highly intensive and require a high degree of individualized attention and intervention, shall not exceed six (6) students. See 8 N.Y.C.R.R. §200.6[h][4][ii][a].

NYC DOE’s “Family Guide to Special Education Services for School-Aged Children,” at page 27.

A 12:1:4 classroom is for students who require a program primarily of habilitation and treatment, including training in daily living skills and the development of communication skills, sensory stimulation and therapeutic interventions. 8 NYCRR § 200.6[h]. /d.

Both Parents and DOE agree that Student has highly intensive management needs requiring a high degree of individualized attention and intervention to maintain his physical wellbeing throughout the day.

Parents’ argument for placement in a 6:1:1 class in to address the Student’s highly intensive management needs which require a high degree of individualized attention and intervention fails. Parent overlooks that the Student’s highly intensive needs are due to the fact that he has severe multiple disabilities, has needs for programming in the areas habilitation and treatment, needs a staff/student ratio of at least one staff person to three students, and requires services from additional staff that are teachers, supplementary school personnel, and related service providers. Thus the 12:1+4 special class ratio for students with severe multiple disabilities, called for in State regulation, is precisely the type of programing that will address this student's unique needs. See NYCRR 200.6 [h][4][iii]). A 6:1:1 class ratio does not have the supplementary school staff needed to work with the Student.

F. Related services of a sufficient frequency and duration

NYSED Commissioner’s Regulations § 175.5 requires that Student’s instructional day must have at least 5.0 hours. Delivery of related services is included in these hours. An IEP must: include a statement of the student’s present levels of academic achievement and functional performance; establish annual goals designed to meet the student’s needs resulting from the student’s disability; and provide for the use of appropriate special education services. See 34 CFR 300.320[a][1]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][i]; 8 NYCRR 200.4[d][2][v]).

Maximization of a student’s potential is not required. Board of Education v. Rowley, 458 U.S.

176, 189, 199 (1982).

Parent argue vociferously Student requires related services in 60-minute increments for occupational therapy (OT), physical therapy (PT), speech language therapy (SLT), and vision education. This duration is needed to build muscle memory through repetition according to educational director Ms. . Tr. 420-21. On the other hand, the CSE recommended 30-minute sessions “[b]ecause the child just basically emotionally and physically can’t sustain a longer period of time than that, if the Student can meet that.” Tr. 167. He “tires easily, and he presents often as lethargic.” Tr. 173. In fact, the IEP makes nine references to the Student’s lack of alertness, four references to his feeling of fatigue, and at least eight references to keeping his eyes closed for prolonged periods of time. Ex. 6.

Parents did not provide any independent medical testimony or documentation to support Student’s need for 60-minute related service session in light of his propensity for fatigue and lethargy. This widely contrasts starkly with Student’s home-based therapies that are conducted in 30-minute increments. Tr. 599.

Ms. cited three generic factors in support of 60-minute sessions: two-person transfer time, additional processing time, and repetition. Tr. 504. There is no individualization for a student’s needs. Although Parent might desire increased frequency and duration of related services for perceived greater educational benefits, I find the frequency and duration of related services sufficient to allow the Student to receive educational benefits given his multiple medical conditions that cause fatigue and inattention at times.

G. Appropriate services and goals

When developing a student’s IEP, a CSE must review “existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (11) current classroom-based, local, or State assessments, and classroom-based observations; and (ii1) observations by teachers and related service providers.” 20 U.S.C. § 1414(c)(1)(A). The CSE had all the above in hand as well as active participation from Student’s then special education teacher and related service providers.

Upon review, I find that the parent's due process complaint notice cannot reasonably be read to include the CSE's failure to recommend an assistive technology (AT) device and service in the proposed IEP. Ex. A. Nonetheless, I will address it. The proposed IEP contains multiple references to the Student’s use of his device but did not list it nor assistive technology services.

Ex. 6. However, testimony supports that use of the device would continue. Tr. 332. The proposed school placement would also programmatically implement the AT device even if not on an IEP.

Tr. 341. Student was also referred for an AT evaluation to consider other devices. Tr. 305; Ex. 6.

In summary, the March 2018 IEP contains appropriate goals and services.

H. Predetermination

Districts may ““prepare reports and come with pre[-|formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.’ Dirocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 U.S. Dist. LEXIS 434, at *60 (S.D.N.Y. Jan. 2, 2013) (quoting MM. v. New

York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506 (S.D.N.Y. 2008); see B.K. v. New York City Dept. Of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] (holding that “active and meaningful” parent participation undermines a claim of predetermination). As discussed above, Parent admitted there was extensive consideration of Student’s needs during the IEP meeting.

Moreover, the placement must be considered each year. A CSE must recommend a placement that would be the “least restrictive environment” for the student. G.B. v. New York City Dept. Of Educ., 145 F.Supp.3d 230 (SDNY 2015) (citations omitted). The issue is not whether would be the better placement for the Student because of its programming but whether the 12:1:4 program was reasonably calculated to enable Student to make progress appropriate in light of her circumstances. Once the CSE determined the 12:1:4 program was an appropriate program that would allow Student to make progress, it was not a substantive violation for the CSE to decline to consider whether a private school offered more benefits.

In summary, the DOE provided the Student with a FAPE for the 18/19 school year despite the noncompliance of Parent and to be discussed below.

Il. was not an appropriate placement in July 2018

Although the analysis should end with provision of a FAPE to Student, the litigious posture of this case requires a complete analysis to have a well-developed record. It is the Parents’ burden of proof on appropriateness of the placement.

Therefore, a private school placement must be “proper under the Act.” Florence County Sch. Dist. IV v. Shannon Carter, 510 U.S. 7, 12,15) (1993); School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S. 359, 370 (1985), 1.¢., the private school offered an educational program which met the student’s special education needs. See Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105 (2d Cir. 2007). 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. Carter, 510 U.S. at 13-14. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits”. See Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (“evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”). 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.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor satisfies the standard. Parents 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.

A. Description of The hearing record includes an brochure with a “Program Description” that details the mission statement and core values and also provides information regarding admissions process and an overview of the program for the 2018-19 school year. Ex. E. According to the program description, is an independent, not-for-profit educational organization . . . [that] ensure[s] the families, and most importantly, our students with brain injury and brain-based disorders have access to a highly specialized educational opportunity based on the individual needs of each student.

It is not been vetted by any state or regional credentialing agency. The program first opened in July 2018 at a location, moved to in September 2018, and then went to in July 2019.

Academics are described as follows: “The educational program focuses on the development of academic, cognitive and social skills aligned with each student’s Individualized Education Program (IEP) designed by . All skills and strategies are taught through Direct

Instruction.” Ex. E. “Teachers meet with each student individually each day on their targeted individual academic goals.” /d. Additional activities for academic goals occur in pairs and small groups. “Paraprofessionals are trained to reinforce and encourage academic skills throughout the activities of the day to ensure these skills are generalized.” Jd.

Turning to related services, these are “the supportive services and activities we offer necessary for our students who have acquired a brain injury or brain-based disorder to better maximize their educational outcomes.” /d. (emphasis added).

Students at are primarily non-verbal and non-ambulatory. They all attend an extended school day, receive the same academic program and related services of 60 minutes.

There does not appear to be any individualization based on nature of disability, severity of disability, abilities, or limitations.

B. Student’s individual program and schedule

As shown in Exhibit D, the Student was to have the following program at starting July 2018: 6:1:1 special education class; physical therapy — 1:1 — 5x/week, 60-minute sessions; occupational therapy — 1:1 — 3x/week, 60-minute sessions; speech/language therapy — 1:1 —

5x/week, 60 minute sessions; assistive technology services — 2:1 — 1x/week, for a 60-minute session; vision education services — 1:1 — 3x /week, 60 minute sessions, and parent counseling and training — 1x/month, for a 60-minute session.

Exhibit F shows Student’s schedule for an extended school day. He receives 30 minutes of direct instruction per day. Tr. 206. Related services are done on a push-in and pull-out model.

Tr. 213.

It has been established that in July 2018 when opened at its first location in the , vision education services, assistive technology services, and parent counseling and training were not available due to lack of providers. Tr. 26-27, 454. Vision education did not start until mid-September 2018 at the earliest. Tr. 520. Allegedly sessions were made up but no documentation was presented. Jd.

I find the lack of testimony and documentary evidence unacceptable and grossly negligent on Parent’s part because it leaves the record undeveloped despite repeated instructions for a well-developed record. See Application of a Student with a Disability, Appeal No. 19-039 (requiring parent to submit documentation showing has completed vision education services makeup sessions). If vision education services were not crucial, then would not have hired a vision education teacher nor planned to provide makeup sessions to the Student. Lack of documentary evidence and testimony from the Student’s vision education provider leaves the IHO and other readers to conclude the services were not made up.

It is also disturbing that the Parent was not aware a vision education teacher was missing for approximately three months. Tr. 589. She also did not know the school did not have an assistive technology service provider. Tr. 588-89. Id.

In summary, Student’s needs are detailed and complex. chose to focus on his related services more than academic instruction. This by itself did not make it inappropriate.

What did make inappropriate was the lack of vision education services at its inception.

Ill. Equitable considerations do not favor Parents

Burden of proof is upon the parents on the third prong of the Carter/Burlington analysis.

With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to any actions parents took. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014) (identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school). Lack of cooperation also is “[i]mportant to the equitable consideration [] whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free School Dist., 744 F.3d, 840 (2d Cir. 2014).

A. Removal of Student from Parent testified Student was removed from because it started not to have vision therapy and a contract requiring a deposit amount she could not afford. Tr. 520. Parent did not present any documentary evidence to compare the costs of and

B. Tuition costs

Maximization is not required. “The appropriate amount [of reimbursement] bears a relationship to the quantum of services that the state would have been required to furnish, as well as the fees charged by [the parents’ chosen] providers for their services” rather than requiring reimbursement for all services the parents chose to provide. L.K. v. N.Y.C. Dep’t of Educ., 674 F.

App’x 100, 101 (2d Cir. 2017) (citing Still v. DeBuono, 101 F.3d 888, 893 (2d Cir. 1996)).

Parent seeks tuition funding of $ 148,000.00. It is within the [HO’s discretion not to have parents submit their income information such as an income tax return. The question is whether tuition is reasonable. I find that it is not for the following reasons. The Student receives just 8.5 hours of academics per week far less than what be provided had Student attended the public school placement. The remainder of his time is spent in related services that exceed the amount recommended in the March 2018 IEP. Further, did not implement a key part of the Student’s program — vision education that Parent alleged was not providing- for at least two months from July to September 2018. Nor did Parents offer any satisfactory evidence of Student receiving makeup sessions. Finally, no school official testified about the tuition contract. Therefore, baseline tuition cannot be awarded.

C. Related services

The estimated cost of related services is $67,320. Ex. J. Pursuant to the contract, Parent must seek RSAs or related service authorizations from DOE. The related service providers are salaried employees, not independent contractors. This amounts to “double dipping” and cannot be condoned by charging hourly rates for related services that were provided by full-time salaried employees during the school day. See Application of a Student with a Disability, Appeal No. 13-073 (denying reimbursement for related services because school was charging hourly rates for related services provided by full-time salaried employees during school day).

D. IEP

Parent presents the IEP as the gold standard for the Student, allegedly in effect since July 2018 even though private schools are not required to have one. Ex. D. See On closer examination, there are concerns with it. First, it appears to have been created solely for the purpose of litigation. It is labeled ‘original report’ dated March 9, 2018 but did not open until July 2018. The contributors are employees. Nowhere are employees listed as contributors. Most telling is the Parent is not listed as a contributor. Tr 431-32. Finally, the IEP is an almost identical copy and paste of the 2017/18 IEP seen in Exhibit C.

What discussions if any took place with the Student’s teacher and related service providers at could not be discerned from Ms. *s convoluted testimony.

E. Transportation

In June 2018 the Parent signed a transportation contract with . Ex. J. The contract allows for subcontracting without notice to or consent from Parent. No one from nor testified as to the reasonableness of the $275 daily rate. Therefore, transportation costs are denied.

F. Cooperation of Parent

Parent failed to visit the recommended public school placement. Tr. 600.

In summary, tuition funding for is denied because Parent did not demonstrate the academic program was appropriate and delivered in its entirety. In addition, Parent did not demonstrate why the tuition cost is not excessive for the academic program delivered.

ORDER

1. Tuition for is denied.

2. Transportation cost is denied.

3. Related services cost is denied.

Dated: January 13, 2020 /s/Suzanne M. Carter

Suzanne M. Carter, ESQ.

Impartial Hearing Officer

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 EVIDENCE

EXHIBIT DATE DESCRIPTION NUMBER OF

A. Due Process Complaint TH # 175165 07/09/2018 4 pages

B. Findings of Fact and Decision issued by THO —lH# 02/26/2018 10 pages

03/17/2017 IEP 33

2017-2018 SY

03/09/2018 IEP 42

2018-19

2018-19 Program Description 2018-19 15

07/09/2018 Class Schedule 2018-19

02/01/2019 Quarterly Progress Report

06/06/2018 Enrollment Contract

06/21/2018 Transportation Contract ON last visited NYC DOE Family Guide to Special^[2]

12/05/2018 Education Services for School Age

Children (pp. 1, 27) last visited NYC DOE Special Education Services

12/05/2018 Packet — Figure 2 (pp. 1, 35) No

04/20/2018 Letter from Parents’ to CSE

Chairperson

Requesting Full Committee Annual

Meeting (for SY 2018-19)

06/21/2018 Ten- Day Notice w/ Confirmation

06/21/2017 Letter from Parents’ Attorney to CSE

Chairperson Requesting

Full Committee Annual

Multiple NYC DOE Medical Forms 2017-18 16

Multiple NYC DOE Medical Forms 2018-19 27

10/11/2019 Closing brief (sent via email on 1/13/20) 25

DOCUMENT DATE PAGE COUNT

DESCRIPTION

Notice of IEP 2/14/2018

Meeting

Notice of IEP 2/27/2018

Meeting

Quarterly 1/12/2018 11

Progress Report

3/9/2018 40

Recommended

IEP for 18-19

Medical Forms 3/2/2018 27 for 18-19

Individualized 3/15/2018 19

Education Plan

IEP Attendance Undated

Sheet

IEP Meeting 3/15/2018 10

Minutes

Prior Written 6/21/2018

Notice

10 School Location 6/21/2018

Letter

11 Ten Day Notice 8/2/2018

Response Letter

12 DOE Closing 10/11/2018 36

Brief (sent via email on 1/13/20)

---

Footnotes

[1] The two cases cited in Parent’s closing brief in support of a school physician attending the CSE meeting are inapposite.

[2] M 04/20/2018 Letter from Parents’ to CSE 2 Chairperson Requesting Full Committee Annual M eeting (for SY 2018-19) N 06/21/2018 Ten- Day Notice w/ Confirmation 2 R 06/21/2017 Letter from Parents’ Attorney to CSE 4 Chairperson Requesting Full Committee Annual S M ultiple NYC DOE M edical Forms 2017-18 16 T M ultiple NYC DOE M edical Forms 2018-19 27 U 10/11/2019 Closing brief (sent via email on 1/13/20) 25