New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 183526

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 7, 2019

Actual Record Closed Date: January 5, 2020

Hearing Officer: Judith Schneider, Esq.

APPEARANCES November 7, 2019

For the Parents:

Attorney

parent

parent

Director-;

For the District:

District Representative

On November 7, 2019, I conducted an Impartial Hearing at the New York City Department of Education (““DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student’).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated June 17, 2019. (Ex. C) I was appointed Impartial Hearing Officer on June 20, 2019 after recusals by other hearing officers and I was available to conduct a hearing within 14 days of appointment. A prehearing conference was conducted on August 5, 2019 and an evidentiary hearing was scheduled for October 16, 2019. (Ex. J) That hearing was adjourned at the request of the district die to witness unavailability. The parent did not object to adjournment.

An evidentiary hearing was conducted on November 7, 2019 and thereafter the parties were given the opportunity to submit closing memoranda.

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (Tr. 6, 97, Ex. /)

The current compliance date is January 28, 2019. The record closed on January 5, 2020, upon my receipt of the district’s closing.^[1]

Positions of the Parties

The parent alleged that the IEP developed for the 2018-2019 school year (SY) was procedurally and substantively defective, that an appropriate placement was not offered, that the parent was denied meaningful participation in IEP development, and that therefore the district failed to provide a FAPE for the 2018-2019 SY. The parent unilaterally enrolled the student at (“ ”) for that school year, asserts that that placement was appropriate and seeks DOE funding, through reimbursement for tuition in the amount of $49,800 for that placement. The parent further claims that equitable considerations, including alleged district conduct in the settlement process, favor full DOE reimbursement of the amount claimed. (Tr. 14-19, Exs. C, //)

The DOE did not concede that it failed to provide a FAPE and presented documentary evidence alleged to support that it acted appropriately with regard to that but did not present testimonial evidence. Further, the district asserts that the unilateral program was not appropriate and that equitable considerations do not warrant the reimbursement sought. (Tr. 20-21, Ex. 7)

Cases Presented

Both parties submitted documentary evidence. The district presented no witnesses. The parent presented the testimony of , Director of the program at , and of the student’s mother.

Findings of Fact and Conclusions of Law

A) Background

Ex. /V)

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. I find that the evidence in this matter shows that:

The student is years old and attended for grades 9-12, or from September 2015 until he graduated in May or June of 2019. (Tr. 59) For grades 6-8, he attended the , a private special education school in , NY (Tr. 59). The student. was diagnosed with Reading Disorder (Dyslexia), Disorder of Written Expression, and Developmental Coordination Disorder (Ex. W-11). Additionally, he was diagnosed with a seizure disorder and takes medication to control his seizures (Tr. 62; Ex. S-1).

The student was classified by the CSE as having an “Other Health Impairment” (Ex. 11-1). His classification as a student with a disability and his classification category are not at issue in this matter (Tr. 61, 85, Ex. //).

The DOE funded his tuition at and then at for all the years of his attendance other than 2018-2019, pursuant to either hearing officers’ orders or settlement agreements with the Parents (Tr. 60).

An independent Psychological Evaluation was conducted in fall of 2017. He was at that time attending as ajunior. The reported diagnoses were: Reading Disorder; Disorder of Written Expression; Developmental Coordination Disorder. Various accommodations were recommended including extended time. (Ex W-11) The student was reported at that time to struggle with processing speed, graphomotor facility, phonological processing, attentional/executive skills, and anxiety including but not limited to social and performance anxiety (Ex. W-11). However, the student scored in the 93 and 94" percentiles on the Verbal Comprehension and Perceptual Reasoning indices, respectively, of a cognitive functioning assessment administered in 2017 and demonstrated “capacity to be an outstanding math student in high school and beyond.” (Ex. W).

The student participated in , an academic support program at during prior school years but did not participate in that program or any other special program during the 2018-2019 SY, his senior year. By contract executed by the parent on February 12, 2018, the student was enrolled in for the 20178-2019 SY. The fee for tuition was $49,800. A $10,000 non-refundable deposit was paid at the time of enrollment. The parent rejected participation in a Tuition Refund Plan which provided insurance coverage in the event of withdrawal of the student before the end of the 2018-2019 SY. (Ex. Y) Payment in full was made by April 2, 2018. The enrollment contract specified that withdrawal on or after March 12, 2018 for any reason would not relieve the parent of the responsibility for full payment. The parent acknowledged awareness of that but testified that execution of the contract was necessary to ensure that the student had a placement in the event that the DOE failed to provide an appropriate one as has occurred in the past. (Tr. 93-96) The parent thereafter, at least by the CSE review meeting, informed the CSE of the enrollment. (Tr. 96, Ex. R)

On May 18, 2018, the CSE met to develop an IEP for the 2018-2019 school year, the student’s senior year. The parents had previously provided the CSE with written consent to new assessments, the Psychological, the student’s latest report card, and a “Child Health Certificate” from his pediatrician (Ex. W). The CSE conducted no further evaluations or assessments but for a March 29, 2018 social history update. (Ex. V-7 to V8) Information considered by the CSE included the Psychological, a teacher report and ’s 3 quarter report card (Ex. R-1). Parent participants in the meeting included staff. (Tr. 65; Ex. 11-23).

The CSE recommended a_ general education placement with SETSS (ELA/Math/Writing) for 5 periods per week, counseling (1x45 per week (1:1)) and speech language therapy (2x45 per week (1:1) ), testing accommodations and it proposed occupational therapy and speech language therapy evaluations. (Exs 11, E, F, G) The parent and staff stated disagreement with the program provided. (Tr. 66-67, 68, 82) By letter dated August 3, 2019, a placement was recommended but the parent could not reach anyone there until September when she visited it. (Ex. 13, Tr. 71-72) A speech language evaluation was conducted on August 13, 2018 and its conclusion was that that related service was not warranted for this student. (Exs. F, S) The record does not indicate whether the proposed occupational therapy evaluation was conducted. By letter dated August 17, 2018, the parent provided the district with notice of intent to place the student at (“10-day Notice’) and by response dated September 10, 2019 was informed that the district was interested in settlement. (Exs. A, B) Negotiations from November 2018 to March 2019 resulted in an agreement in principle signed by the parent and returned to the DOE on March 8, 2019. (Exs, H-K) Although on May 10, 2019 the parent was informed the district was seeking comptroller approval, the district thereafter withdrew its agreement and refused to provide a countersigned settlement agreement. (Ex. M, Tr. 14-17) A request for an impartial hearing was filed on June 17, 2019. (Exs. C, D)

B) Analysis The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404/[1][c]

1) Prong 1

Although the district did not concede that it failed to provide a FAPE (Tr. 20), and presented documentary evidence including an IEP, it presented no testimonial evidence. I conclude that an IEP does not without testimony to explain its appropriateness establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Further, although not necessary in view of the foregoing, I note my conclusion that credible evidence submitted by the parent as to the student’s needs and difficulties is inconsistent with the program proposed.

I find that the evidence does not support a conclusion that the IEP was substantively appropriate. Based upon the foregoing, I do not address the parent’s other claims concerning the IEP and the CSE process.

I conclude that the district has failed to meet its burden to establish that it provided a FAPE for the 2018-2019 SY.

2) Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2TM Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement...is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] ...”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). 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. Jd. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UF SD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

Credible and uncontested evidence in this matter shows that:

The student has superior intellectual capacity with “striking unevenness” in his neuropsychological development and performs well below the level predicted by his overall intelligence in processing speed, graphomotor facility and phonological processing and with uneven attentional and executive functioning skills. He can only function when given the time he needs due to very slow processing and other weaknesses. Further, he has difficulty initiating appropriate focus especially for verbally presented material. (Ex. W) In addition student has a seizure disorder which although now controlled by medication causes anxiety and has trouble with transitions. (Tr. 63) had some 340-350 students in grades 6-12. (Tr. 28, 30) It is an “inclusive” school and children with disabilities are educated in the same classroom as children without disabilities and IEPs. (Tr. 43) High school classes averaged 15 students and the school utilized a tracking system for each subject which facilitated individualization according to student needs. (Tr. 28, 45) (“ ”) is a comprehensive daily academic support program at with some 185 students and functioned in conjunction with the general school program. (Tr. 26, 28, 30) Further, approximately 30 students were in an (“ ”) which transitioned them from to the regular general education program providing services similar to but reduced. (Tr. 28, 30) All teachers have master’s degree in education or in their field of teaching and all teachers have a master’s degree in special education or in a remedial specialty. (Tr. 33) staff includes 2 social workers and college guidance classes were provided for juniors and seniors by college guidance counselors. (Tr. 34) Certain professional development was provided for the entire faculty and included the area of learning disabilities in its content. (Tr. 49, 51-52) Undisputed evidence indicates that the student made progress in the 2018-2019 SY with regard to transitioning, organization and executive functioning, timeliness in handing in assignments, participation, social skills and academics. (Tr. 40-42, 83-85, Exs. T, X) However, this student was in neither the or program during the 2018-2019 SY although he had beenin in prior years. Although there was testimony that generally at least every year staff consideration of the need for the support programs were undertaken, there is nothing in the record indicating the circumstances surrounding this student’s lack of participation in either — or and on what basis and by whom that decision was made. It is noteworthy that the decision was apparently made prior to the execution of the enrollment contract since that does not include charges for any support program. It is undisputed that for the 2018-2019 SY the student participated in the regular preparatory school program in which students without IEPs or disabilities were enrolled. It is undisputed that the student continues to have significant learning needs. (Ex. //)

The district asserts that the parent has failed to establish that the placement was appropriate for the 2018-2019 SY in that the student did not receive educational services or support specifically tailored to meet any particular need. (Ex. ///)

The parent claims the student’s needs were appropriately addressed at by various means including: small classes with similar students, provision of a suitable pace supported by a tracking system, individual attention and redirection and a tailored curriculum and participation in a support program was possible if thought necessary (Tr. 36-37); the requirement that he use in various classes assigned writing rubrics and outlines as part of the writing process which the student needed (Tr. 38-40); access to 1:1 attention from teachers outside of class for reinforcement and reteaching if necessary (Tr. 37); addressing anxiety, if it arose, with as-needed counseling. (Tr. 42) However, I note the following: The sole school witness was not the student’s teacher this year and she had limited information as to what the teachers actually did with regard to this student. While teachers had access to the student’s IEP with regard to the issue of modifications and accommodations there is no indication as to whether and to what extent that was consulted and applied. There is no indication that the student’s teachers were special education teachers or as to the extent to which they received relevant professional development training. Although counseling is claimed to have been available on an as-needed basis there is no indication as to who made the determination as to need, whether it was ever made for this student and if so whether it was ever implemented. It is noteworthy that in the prior school year staff observed that the student was reluctant to seek available assistance although it was believed he would benefit from it. Curriculum was determined based upon the class “track”’, there is no indication 1t was specific to this student’s educational needs and this student was in higher track and honors classes. Apart from small class size and the individual attention it permitted there is little in the record indicating how the school addressed the student’s weaknesses. Further, it appears that all the alleged benefits were equally available to all students as part of the school’s general program for students with no disabilities.

I find that small class size and individual attention do not by themselves support a determination that a parent’s unilateral placement was appropriate. See e.g. Appeal No. 01-052 I conclude that the parent’s burden to establish that the placement was appropriate and that tuition reimbursement is warranted has not been met in the circumstances here.

3) Prong 3 Notwithstanding my determination that the parent has failed to establish that the placement was appropriate, I address disputed issues concerning the equities.

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement. . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming...that the parents never intended to keep [the student] in public school.’’)

Contrary to the district’s claim, I conclude that the evidence, discussed above, does not support a claim that the parent failed to appropriately cooperate with the CSE. Although the parent enrolled the student prior to the CSE review, I find credible the testimony that that was necessary to secure a place in the event that no appropriate placement was provided. (Tr. 94, 96) I conclude that in the circumstances of this case ultimate parental intent does not provide a basis for denying or limiting the DOE tuition funding had the placement been appropriate.

The parent asserts, however, that district conduct in the period after the filing of the complaint provides a basis for reimbursement on equitable grounds. (Ex. //) I note with regard to that claim that no authority asserted by the parent supports funding on equitable grounds when it has been determined that the parent has failed to establish that a unilateral placement was appropriate. Accordingly I need not address the parent’s claims with regard to the extent of district misconduct.

ORDER

The parent’s claim for tuition reimbursement for the 2018-2019 SY at is denied and this matter is DISMISSED.

Dated: January 20, 2020

JUDITH SCHNEIDER, 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.

EXHIBITS

District

(1) WITHDRAWN

(2) Child Health Certificate, 6/27/17, 2 pgs.

(3) Assessment Planning, 2/9/18, 1 pg.

(4) Social History Update, 3/29/18, 3 pgs.

(5) WITHDRAWN

(6) Academic Progress Report (3 Quarter) 12/22/17, 1 pg.

(7) | Academic Report (4 Quarter) (8) Teacher Report, 5/2018, 3 pgs.

(9) Meeting Notice CSE (1*), 4/16/18, 3 pgs.

(10) Meeting Notice CSE (2") 4/26/18, 3 pgs.

(11) TEP, 5/18/18, 23 pgs.

(12) Parent Signed Program Recommendation Page, undated, | pg.

(13) PWN & School Location Letter, 7/9/18, 7 pgs.

Parent

(A) — 8/17/18 E-mail with attachment to 10daynoticecsel 0@schools.nyc.gov (3 pp.) (B) 9/10/19 DOE e-mail acknowledging receiving the 10-day letter and advising fo the DOE’s intention to resolve the parents’ claim (2 pp.) (C) 6/17/19 Impartial hearing request (22 pp.) (D) 6/18/19 E-mail from the DOE acknowledging receiving the impartial hearing request (2 pp.) (E) — 6/13/18 and 6/18/18 E-mail correspondence between the parent and DOE regarding further evaluations (2 pp.) (F) 8/8/18 E-mail from parent to DOE regarding additional evaluations (1 p.) (G) 8/9/18 E-mail from parent to DOE regarding additional evaluations (1 p.) (H) ~— 11/27/18 E-mail correspondence with the DOE’s counsel regarding the DOE’s intention to settle the parents’ claim (2 pp.) (1) 2/7/19 E-mail to DOE counsel (1 p.) (J) 2/25/19 E-mail with DOE attorney regarding settling (8 pp.) (K) 3/8/19 Letter to DOE counsel with attachments (12 pp.) (L) 5/9/19 E-mail to DOE counsel (1 p.) (M) 5/9/18 and 5/10/18 E-mail correspondence with DOE attorney (4 pp.) (N) = 6/19/19 and 6/20/19 E-mail advising of the recusals and appointments of numerous impartial hearing officers prior to the appointment of the current hearing officer (10 pp.) (O) February 22, 2019 and May 2019 External review of the NYC Impartial Hearing Office and NYSED Compliance Assurance Plan (77 pp.) (P) 7/10/18 and 7/12/18 Fax to DOE (3 pp.) (Q) = 11/9/18 E-mail from parent to DOE (1 p.) (R) 5/18/18 Parent’s IEP meeting notes (5 pp.) (S) 8/13/18 Speech report (3 pp.) (T) 6/11/18 Report card (1 p.) (U) 5/30/18 Letter from physician (1 p.) (V) 5/18/18 Attendance sheet, summary, and reports (8 pp.) (W) Fax to DOE with psychological and other reports (19 pp.) (X) 5/15/19 Final report card (1 p.) (Y) Sept. 2018 tuition affidavit with attached attendance report, contract, and invoice (6 pp.) (Z) 9/26/19 description (46 pp.)

Impartial Hearing Officer vi PHC Memorandum

IT Parent’s Closing Memorandum

IIT District’s Closing Memorandum IV Emails re submission of closing memos

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Footnotes

[1] Although the district’s closing was submitted subsequent to the specified time, I note certain ambiguity with regard to the closing date and my conclusion that the parent was not disadvantaged by the district’s very summary recapitulation of the claims made in its opening statement. (Tr. 20-21,