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FINDINGS OF FACT AND DECISION
Case Number: 184484
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: September 18, 2019
October 31, 2019
December 10, 2019
January 16, 2020
February 14, 2020
March 20, 2020
Actual Record Closed Date: April 5, 2020
Hearing Officer: Judith Schneider, Esq.
APPEARANCES September 18, 2019 October 31, 2019 December 10, 2019 January 16, 2020 February 14, 2020
For the Parents:
Attorney (via telephone)
For the District:
Attorney ( via telephone)
For the Parents:
Attorney (via telephone)
For the District:
Attorney ( via telephone)
For the Parents:
Attorney (via telephone)
For the District:
Attorney ( via telephone)
For the Parents:
Attorney (via telephone)
For the District:
Attorney ( via telephone)
For the Parents:
Attorney (via telephone)
For the District:
Attorney ( via telephone)
March 20, 2020 (VIA TELEPHONE)
For the Parents:
Attorney
Mother
special Education Teacher
For the District:
Attorney
On September 18, 2019, October 31, 2019, December 10, 2019, January 16, 2020 February 14, 2020 and March 20, 2020, 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 July 1, 2019. (Ex. A) I was appointed Impartial Hearing Officer on July 8, 2019. A prehearing conference(“PHC”’) scheduled for July 19, 2019 was adjourned at the request of the parent and conducted on August 12, 2019. (Ex. I) At the PHC I was informed that this matter had been approved by the district for settlement discussions and the parties wanted that discussion to continue. (Ex. J) That was reiterated at various hearings thereafter. Ultimately, I was informed that an evidentiary hearing was required and an evidentiary hearings was conducted on March 20, 2020.
The parties moved to extend the compliance date on various occasions in light of settlement discussions, 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. (T27, 29, 34, 135, Ex. J)
The current compliance date is May 9, 2020. The record closed on April 5, 2020 upon my obtaining the hard copy of the final transcript. Positions of the Parties
The parent asserts that the DOE failed to develop an IEP and failed to provide a FAPE for the 2019-2020 SY and has failed to evaluate the student for many years, including failure to conduct a required triennial evaluation. The parent unilaterally enrolled the student at (“School”) for a 12 month program which included services from a health para-professional, asserts that that placement is appropriate, seeks DOE funding for it through direct payment and claims that equitable considerations support that. Further the parent seeks an order requiring the DOE to conduct an appropriate evaluation of this student which will include: classroom observation, social history, physical examination, AT evaluation, OT evaluation, PT evaluation, SLT evaluation and an FBA.[1] ' (T 42-44, 128-123, Ex. A)
The district did not concede that it failed to provide a FAPE but stated that it was presenting no evidence with regard to that issue. It asserts that the parent has not met the burden to establish that was appropriate claiming, among other things, that the evidence presented is insufficient and contradictory and that the evidence shows that progress in academic areas has not been made. Further, with regard to the equities the district asserts that the parent was not interested in a public school placemen and had not sought DOE evaluations. Further, the district argues that the requested evaluations should not be ordered in this matter but rather that if desired should be requested through the process set forth in applicable regulation. (T44-45, 120-126)
Cases Presented
The district presented no evidence, documentary or testimonial. The parent presents documents for admission into evidence (a list of documents in the record is appended) and the testimony of: , special education teacher of the student for the 2018-2019 and 2019-2020 school years (“—”.-: or “the teacher’).
Findings of Fact and Conclusions of Law ' Although the parent requested DOE funding for any incidental costs including transportation (Ex. A) no claim was made that such were actually incurred and no evidence was presented with regard to that. Accordingly, I conclude that relief claim has been abandoned.
A) Background The student is in the at the School and has attended that school for some after having been removed from a public school placement by the parent. (T91-93, 86-87, 98, 100, , Exs.C) The student’s initial classification was Intellectual Disability but that was thereafter changed to Autism. (Exs. C, B) The record indicates that the student’s FSIQ is 41 (Moderate range) and that his overall adaptive level of functioning when last evaluated was in the Low range. (Exs. B, C) His reading is at an early emergent instructional level (pre-K but higher for comprehensions) and his math skills are very limited. He requires repetition and teacher support in academics, requires verbal prompts to self-regulate and supports and verbal prompts to hold conversations and is not fully independent in ADL skill and has deficits in fine motor skills, strength, balance and motor planning among other things. (T30, 60, 71-74, 86-87, 98, Exs. F, G, D, E)
B) FAPE Deprivation/ Unilateral Placement Claims 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 | and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2" 795 at 806, n.7 (N.D. N.Y. 1998)
Prong 1
Although not conceding that it failed to provide a FAPE for the 2019-2020 school year, the district elected not to present any case with regard to that issue. Accordingly, I find that the district has not met its burden to establish that it provided a FAPE.
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.
The testimony and evidence presented by the parent was credible. I find no basis for rejecting the parent’s testimony on the grounds of bias as urged by the district and note that it is consistent with regard to the student’s past and present situation with the other testimony and evidence presented.
The testimony of the witnesses, supported by documentary evidence, established substantial academic, related service, ADL and social/emotional special education needs. (Exs. B, C, D, E, F, G, Q,T60, 71-74, 86-87, 98, 100). Further, the evidence is persuasive that the placement appropriately addressed those needs by providing a program which included, among other things, a small class, extensive 1:1 attention, necessary related services, appropriate curricula and support, appropriate staffing, collaboration with outside providers and within the School as well as assistance with appropriate Assistive Technology and based upon assessments. (Exs. Q, D, M, N, O, P, T62-63) Further, I conclude that persuasive and sufficient evidence shows that the student progressed. (Ex. Q, D, E, F, G, T42, 67, 73-76, 94-96, 99-100)
The district asserts that the progress reports are insufficient and unreliable hearsay in certain areas and that there are inconsistencies with regard to the details of the amount of the services the student receives. However, I note that the progress reports are supported in substantial part by the observations of the teacher (humanities) who testified in this proceeding and, further, that I find her testimony sufficient to demonstrate adequate progress and supported the parent’s testimony that the student had progressed in the 2018-2019 SY. I give no weight to alleged inconsistencies in the evidence presented with regard to the precise details of the student’s services/program and note that I am persuaded that at a minimum the student received OT, SL, PT and counseling services and was supported with AT and that those services were necessary. Further, I find no basis for concluding that the program was not appropriate because a full time paraprofessional was not provided in the although it had been in the The district also claims that the progress the student has made in academic areas is at best minimal. However, evaluation of progress must consider a student’s capacities. No evidence has been presented by the district to support a claim that more academic progress should have been expected in this student’s unique circumstances. Further, although a finding of progress is a relevant factor to be considered. Gagliardo, 489 F.3d at 115 it is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013) WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. Rather “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.
I find that the placement provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services as were necessary to permit the student to benefit from instruction.
Based upon the foregoing I find that the parent’s burden to establish that the unilaterally selected program was reasonably calculated to enable the student to make meaningful gains in his unique circumstances has been met.
Prong 3
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.”’)
No evidence whatever has been presented to indicate parental unwillingness to cooperate with the DOE. Rather the undisputed evidence shows district failure over many years to conduct a review and offer a placement. I give no weight to the district’s assertion that the parent’s desire for a private school placement for the in light of the circumstances at that time indicates parental attitudes concerning the Further, no DOE placement was offered and therefore that is entirely speculative. In any event I note that I find credible the parent’s uncontroverted testimony parent’s testimony that a DOE placement if made would have been considered. (T114)
The parent’s testimony that she does not have the financial resources to pay the tuition and seek reimbursement is credible and uncontested. (T 117) Direct payment by the district to will therefore be ordered.
C) Evaluations The parent seeks DOE conduct of a “triennial evaluation” and makes specific requests with regard to the evaluations it should include. The district asserts that if the parent desires evaluations a separate request pursuant to appliable regulations should be made and if the parent is dissatisfied with the result independent evaluations could be sought and/or an impartial hearing request concerning that could be filed. In this matter the testimony that there have been no evaluations since about 2014 has not been contested by the DOE and evidence in the record supports the parent’s claim. (Exs. A, B, C,T101) Further, the request for the evaluations was included in the July 2019 impartial hearing request and there is no claim or indication that any DOE effort to conduct any of them has been made and/or rejected by the parent.
I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415€)(2)(C)i); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052. The district’s proposed procedure would result in substantial additional delay in conducting required evaluations. No prejudice to the district from the requested order has been demonstrated. Accordingly, the district will be ordered to conduct the following: classroom observation, social history, AT evaluation, OT evaluation, PT evaluation, SLT evaluation and an FBA. With regard to the “physical evaluation” requested, the CSE will be directed to consider such documentation concerning the student’s physical condition as is provided by the parent and discuss with the parent any CSE perceived need for additional documentation. I note that there is no evidence in the record indicating that updated information from the student’s medical providers would not be sufficient for appropriate CSE review.
ORDER
1) The DOE shall directly pay $100,475 for: a 10 month 2019-2020 program (September-June);[2] 2 summer sessions (Summer 2019); 1:1 health/behavior paraprofessional (half-time). (Exs. K, I)
2) The CSE shall conduct a complete triennial evaluation which shall include the following: classroom observation; social history, AT evaluation; OT evaluation; PT evaluation; SLT evaluation; FBA; consideration of physical evaluations of the student conducted by the student’s medical providers and submitted by the parent.
Dated: April 13, 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
None
A. Parent Demand for Due Process, 7/1/19, 8 pgs.
B. IEP, 5/3/16, 18 pgs.
C. Educational Evaluation, 8/13/14, 3 pgs.
D. First Term Progress Report, November 2019, 22 pgs. 2019-20
E. Progress Report, Undated, 8 pgs. Summer 2019
F. Last Term Progress Report, Une 2019, 27 pgs. 2018-2019
G. Second Term Progress Report, March 2019, 25 pgs. 2018-2019
H. Attendance Report, 8, 9, 19, 1 pg. — Tuition Affidavit, 7/31/19, 1 pg
10. Day Letter with Email Confirmation, 6/15/19, 25 pgs. DOE
7~AO?TOZAZrAS
Enrollment Contract, 4/10/19, 3 pgs.
Paraprofessional Recommendation, February 2019, 2 pgs.
10 Month Class Schedule , 2019-2020, 1 pg.
Summer School Schedule, 2019-20120, 1 pg.
Program Description, 2019-2020, 5 pgs.\
Program Description, 2019-2020, 8 pgs.
Affidavit of , 3/10/20, 8 pgs. Resume, undated, | pg.
Resume, undated | pg. Impartial Hearing Officer vf Prehearing Conference Memorandum
Footnotes
[1] Although the parent requested DOE funding for any incidental costs including transportation (Ex. A) no claim was made that such were actually incurred and no evidence was presented with regard to that. Accordingly, I conclude that relief claim has been abandoned.
[2] The CSE shall conduct a complete triennial evaluation which shall include the following: classroom observation; social history, AT evaluation; OT evaluation; PT evaluation; SLT evaluation; FBA; consideration of physical evaluations of the student conducted by the student’s medical providers and submitted by the parent. Dated: April 13, 2020 __________________________ JUDITH SCHNEIDER, ESQ. Impartial Hearing Officer PLEASE TAKE NOTICE