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Findings of Facts and Decision
Case No: 185136
Student’s name:
Date of Birth:
District
Hearing Requested by: Parents
Actual Hearing Close Date: November 19, 2020
Dates of the Hearing: 11/22/2020, 1/8/2020, 1/22/2020/, 1/31/2020,
3/17/2020, 6/18/2020, 7/23/2020
Introduction
On 11/22/2020 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the initial impartial hearing request filed by the parent’s attorney that contains allegations made concerning the 2019-2020 school year.( “SY”).
(Ex.A ). The request alleged the failure of the DOE to provide FAPE to the student for the 2019-2020 school year. (“ SY”).
The impartial hearing was held at the NYC Department of Education located at 131 Livingston Street, Brooklyn, New York on that date. The hearing commenced at 1:00pm and was continued by telephone on 1/8/2020, 1/22/2020/
1/31/2020, 3/17/2020, 6/18/2020, 7/23/2020
A list of Exhibits admitted into evidence is attached hereto.
Background
The student was at the time of the hearing. At the beginning of the 2019-2020 SY, she had been diagnosed with profound Major Depression,
Generalized Anxiety Disorder, Attention-Deficit/Hyperactive Disorder (ADHD), school avoidance, and Post-Traumatic Stress Disorder (PTSD). Exs. A, B, H, I, J, L, M, N. presented with suicidal ideation, isolation, performance anxiety relating to school, school avoidance, focus deficits, executive functioning deficits, and inconsistent grades. Exs. A, B, H, I, J, L, M, N. Tr. 73-75, 208-209.
She did not have an IEP. Although in the past, her mother requested that she be evaluated. There is a question about whether her request was still active at the time and /or whether the parent ever renewed it but she signed a consent to evaluate the student. The student did not attend public schools at least since the fifth grade. She attended a variety of private schools with varying results. She has spent time in hospitals over the years for anxiety and suicidal ideation. She has been enrolled in school while in and was home schooled by the DOE for a time.
In January 2019, the Parent enrolled the student in a residential special education and therapeutic school which was located out-of-state. After a period of adjustment, by the end of the 2018-2019 SY, she made progress at the new school in terms of attending classes, completing assignments, and engaging in therapeutic supports. The parent kept her enrolled during the summer of 2019 and for the remainder of the 2019-2020 SY. She made progress there during the Fall semester but regressed as soon as the program went virtual and she was sent home due to COVID. The parent is seeking tuition reimbursement for the 2019-2020 SY.
The parent’s position
The parent contends that the DOE denied the student a FAPE for the 2019- 2020 SY by failing to evaluate her, failing to create a timely IEP for the student and failing to offer her an appropriate school placement. She further contends that the residential school she selected for the child was an appropriate placement and that therefore she should be reimbursed for the tuition she paid to that private school. She contends that she cooperated with the DOE as every juncture and that the equities tip in her favor.
The DOE’s position
The DOE contends that it did not offer the student a FAPE for the 2019- 2020 SY. However, it contends that the parent’s unilateral placement was inappropriate for the entirety of 2019-2020 SY. Tr.225. The DOE contends that in January 2020, when the DOE recommended a non-residential placement, the unilateral residential placement was no longer the LRE and thus, continued to be an inappropriate placement for the student. It also contends that beginning in March 2020 at the beginning of the COVID pandemic, the school was wholly ill-equipped to help the student participate in remote learning, Therefore, the DOE submits that tuition at the school should be denied in full for the 2019-2020 school year.
It further contends the equities favor the DOE. Thus, the DOE contends that the parent is not entitled to receive any tuition reimbursement for the 2019-2020
SY.
Findings of Fact
During the 2019-2020 SY the student was . She had been diagnosed with profound Major Depression, Generalized Anxiety Disorder,
Attention-Deficit/Hyperactive Disorder (ADHD), school avoidance, and Post- Traumatic Stress Disorder (PTSD). Exs. A, B, H, I, J, L, M, N. presented with suicidal ideation, isolation, performance anxiety relating to school, school avoidance, focus deficits, executive functioning deficits, and inconsistent grades.
Exs. A, B, H, I, J, L, M, N, Tr. 73-75, 208-209.
During the sixth, seventh, eighth and ninth grades the student attended a variety of private day schools where her achievement was varied but mostly unsuccessful.
She also attended a day treatment program after she engaged in self-harm.[1] This program was located within a hospital and run by of the DOE for about
8 weeks. T. 48, 51, 90. Following her attendance in that program, the student was unable to return to any school due to her continued psychiatric condition, and the parent hired a private tutor to provide her with home-based learning. Tr. 89. The student received additional home instruction services from the DOE upon the mandate of the family court judge proceeding over the then-pending divorce of the student’s parents. T. 91-93. Recognizing that the student. required a full-time special education program, the parent sent a letter to the CSE on May 24, 2016 requesting an evaluation and an IEP. She provided the CSE with consent to conduct evaluations and speak with the student’s treatment team. Exh. P. There was no response to this letter, no DOE evaluations were conducted and the CSE attempted to close the parent’s request in 2017. Tr. 67-68.
During the fall term of the ninth grade, the student’s self-harm, suicidality, and school avoidance increased. Tr. 55-56. In January 2018, Her therapist recommended that she attend a therapeutic residential program which she attended until the last 6-8 weeks of the ninth grade .Tr. 56. Thereafter, she attended a non - therapeutic general education school from which she withdrew due to her ongoing school avoidance and her inability to complete the school work there.
In January 2019, the Parent enrolled the student in another residential special education school. Tr. 71-72. She. continued attending that school on a twelvemonth basis for the 2019-2020 SY. She was placed in the tenth grade as of September 2019. Tr. 72. Exh. L. The parent was contacted by phone by the DOE that summer to begin planning for assessments for the student’s initial eligibility meeting in September 2019, in response to her letter sent to the CSE on May 24, 2016. Tr. 118. The CSE representative who called indicated that the evaluation request would be closed if the CSE did not have testing information about the student before November 26, 2019. Tr. 83, 122. The parent did not want the CSE to close the case and did not want the student to miss school days to have the DOE complete testing in New York City, so she arranged for a private evaluator to conduct testing at her school. Tr. 81. In November 2019, the parent obtained an independent neuropsychological evaluation report which she shared with the CSE when they eventually convened for an initial meeting in January 2020. Tr. 278.
Exh. M. The parent also provided a letter to the CSE from the student’s psychiatric nurse practitioner regarding her psychiatric diagnoses, medications, and other therapeutic treatments. Exh. N. In January 2020, the CSE convened for an initial eligibility meeting and the student was finally classified as ED. The CSE and recommended an IEP, three and a half years after the parent requested and consented to a CSE evaluation and meeting to develop an IEP. Tr. 278. Exh. P.
This meeting which was to plan for the 2019-2020 SY, was held seven months after the beginning of the 12-month 2019-2020 SY. Tr. 278.
While waiting for the CSE to convene a meeting, the parent continued the student’s enrollment at the residential school because the student was not able to attend a day program despite to keep her at home and enrolled in various day programs and therapeutic outpatient programs. Tr. 71-72. The residential placement provided an intensive level of supervision and the structure of therapeutic and behavioral supports to address the student’s needs. Tr. 72-73. Her parent was pleased with how the student was doing at school because of the intensive level of supervision and the structure of therapeutic and behavioral supports to address she needs. Tr. 72-73. There she was assigned to a case manager
/ residential advisor (“advisor”), which is the equivalent of a guidance counselor.
Tr. 142. The advisor managed the student’s day-to-day academic and therapeutic program, working with her team of teachers, therapists, and psychiatrist. Tr. 142.
She worked with the student each day, either through a quick check-in, a therapy session, or as a consultant to a class or individual therapy session. Tr. 142-143. She attended weekly professional development training sessions for academic and therapeutic programming. Tr. 143. In her opinion, despite the student’s progress, she continued to require the structure and support of the residential therapeutic program which also offered appropriate therapeutic programming for the student to address the death of her father in late January 2020. Tr.222-213.
Even with the intense structure there, the student still experienced school avoidance. The program offered supports to help the student decrease this behavior. She received appropriate levels of therapy while also attending and passing her classes. Tr. 73-77. Due to the school structure and services, during the Fall semester, the student earned privileges, maintained good grades, and regularly attended activities and classes. Tr. 77-78. The student has goals to attend college.
Tr. 78. But, the parent explained that the student can fall back on behavioral habits, primarily avoidance, when she has fears or anxiety. Tr. 79. Since she began attending the residential school , the student has become more social. She used to isolate at home in her room, and now joins the family at the dinner table or even goes out for dinner. Tr. 79. Although she will isolate at times, she has demonstrated significant progress in this area. Tr. 79.
When the CSE finally convened on January 2020, it found the student to be eligible for special education services. The CSE classified her as ED and recommended a non-residential program. Tr. 268, 299. The psychologist who was responsible for the student’s case had been working for the DOE for only seven months. Tr.267. She had a one semester course that discussed school avoidance but had no prior experience with it. She had no experience with adolescents. Tr.267,
298. She was not assigned to the case until October 2019. Tr. 274. She never met the student. Tr. 293. She relied upon the private testing obtained by the parent. She did not disagree with the findings in that evaluation but she disagreed only with the recommendation for a residential placement. Tr. 288-289. The DOE failed to conduct its own psychiatric testing. Tr. 293. The DOE failed to conduct any testing. Tr. 279-280. The DOE psychologist thinks that when a child requires therapeutic interventions, there should be an FBA and BIP. Tr. 270. The DOE failed to conduct an FBA or recommend a behavioral intervention plan. Tr.280.
The school psychologist had not identified the triggers of the student’s anxiety or depression. Tr. 301-302. She did not speak with the neuropsychologist who evaluated the student prior to the eligibility meeting. Tr. 286. She recommended a non-residential program for the student despite evaluations, reports and comments during the CSE meeting from the student’s teachers and therapists that she continued to require a therapeutic residential program. Tr. 292-293. She recommended a day program because the student was functioning in the average range academically and was receiving passing grades. Tr. 268. She acknowledged that generally students requiring residential placement show a pattern of self-harm or suicidal ideation and require 24-hour support. Tr. 268. She thinks that these indicia are important. Tr. 303. At the time of the student’s last evaluation in November 2019, the student showed a moderate level of anxiety. As of January 2020, she was unaware that the student’s father had died and was also unaware of the student’s then current level of emotional stability. She would have liked to have known these facts at the time of the CSE meeting and how the student was doing emotionally at the time of the CSE meeting but she did not. Tr.295. She further acknowledged that the private school utilizes all of the therapeutic interventions that she was taught to use with a student who was suffering from depression and anxiety, Tr. 212, and that the student was making progress at the residential placement. Tr. 290.
On or about March 20, 2020, the private school shut down it’s residential program due to COVID and began it virtual learning. Ex. G. It had COVID-19 cases and closed its campus. It offered virtual classes and limited therapy as of that date. Id. It provided distance learning instruction through Google Classrooms and Microsoft Teams, allowing for direct instruction through video conferencing. Exh. S. Students could access their distance learning by logging in with their school account and email. Id. The school provided instructions for accessing distance learning in a letter dated April 1, 2020. Id. All live teaching content was recorded and posted for students. Id. Some 8 classes were taught without live video, and teachers posted assignments and were available on an online conferencing platform for students to engage with during the in-class assignments. Id. Other classes were mixed live video instruction and completing in-class assignments. Id. School faculty were available through email and direct support to students and parents throughout the virtual school day. Id. Students’ advisers conducted follow up to try to ensure that students engaged with distance learning. Id.
The school continued make therapy and related services available on-line during and after school. Id. Academic instructors who taught core classes offered after school help to students for ninety minutes per day by appointment. Id. It continued to offer “residential” programming in the virtual learning program each afternoon, evening, and weekends through live video conferencing. Id. Virtual residential programming included wake up calls and supporting students’ transition into the school day. Id. The school recommended supports for students regarding setting up a home workspace, decreasing distractions, and utilizing technology, as well as maintaining hygiene and self-care routines. Id. The school offered information regarding
Advanced Placement exams, state testing and college admissions board testing. Id. It offered recommendations for maintaining privacy of therapy in the at-home setting. Exh. T. It continued to offer group therapy once weekly to students through Zoom or Microsoft Teams video conferencing software. Id. Clinicians remained on-call to address clinically urgent situations. Id.
The student’s advisor monitored her attendance, work completion, and teacher communication.
Exh. W. The advisor utilized daily messaging, e-mails, text messages, and phone calls to the student and the Parent during distance learning. Id.
As reflected in her Trimester 3 report card, the student struggled during the period of remote learning due to illness and difficulty engaging with the distance learning program, despite the many supports offered to her including one-on-one video conferencing with her treatment team, weekend enrichment support, and academic support from her teachers. Exh. U. Her attendance at live instruction periods and counseling sessions was inconsistent. The school tried to offer support despite the student’s disengagement with the distance learning program, including her teachers scheduling multiple review sessions with her during the week, weekend enrichment academic help, scheduling one-on-one video lessons with academic instructors, teachers messaging her, offering extensions to complete work, extra classes and tutoring from certified special education teachers. Exs. U, V, W. Consistent with her diagnosed disabilities and challenges with attending school prior to her enrollment in this residential program, during distance learning, she continued to struggle with self-motivation and attendance at therapeutic, academic and extracurricular assigned activities. Exh. W. She also struggled to incorporate the coping strategies she was working on at school into her home setting. Id.
The student performed with great variability during the period of distance learning, at times engaging with the program and communicating her needs, and at other times having great difficulty managing her anxiety and depression during quarantine. Exh. W. The “Trimester 3
Academic Progress Report,” covering the period from April 27, 2020 to June 12, 2020, shows that the student received an “Incomplete” in chemistry, comparative politics, world literature and physical education. In chemistry, she did not utilize teacher support during distance learning and did not make up the work missed when she returned from being sick. For comparative politics, she completed only 30% of the assignments and her participation though the first half of the trimester had been inconsistent. Additionally, in world literature, she had not met academic expectations for English. She had not attended most live classes, and had not been responsive to the support options offered during remote instruction. In physical education, she did not meet academic expectations and did not attend any of the live sessions which took place twice a week, nor did she complete any of the assignments, and although she had been offered support, she had been minimally responsive. In her other two classes for the trimester, chorus and geometry, she received a C and a C- respectively. The 3rd trimester progress report shows that her school avoidance issues re-emerged during the time she was at home although her teachers did try to strategize to engage her to participate in remote learning. These attempts did not succeed.
During COVID her depression worsened and at times interfered with her ability to access the school’s distance learning program. Id. Although her advisor attempted to work with her and the Parent daily through many different communication platforms to “troubleshoot”, the student’s failed to log into class consistently and address her therapeutic concerns. Id. The advisor collaborated with the student’s therapist to address her emotional stability and motivation. Id. At times she engaged with online learning for several days, before reverting to absences. Id. She benefited from therapeutic and academic interventions and followed through with some methodologies including chunking schoolwork and communicating with her teachers. Id. She participated in club activities inconsistently as well, at times expressing excitement, and other times not attending. Id.
In her March 2020 clinical report, her school therapist noted that was struggling with the death of her father, but continued to work hard in individual therapy and family therapy to “communicate her emotional needs and practicing distress tolerance skills.” Exh. X. The student made slight progress in her depression, mood lability, anxiety, post-traumatic stress disorder, communication problems, and social isolation. Id. Before COVID closed the school in March, 2020, she was no longer struggling with school avoidance. Id.
After COVID, it became evident that she continued to require the structure of a residential program. During remote learning, the advisor privately messaged the student to offer extra help and support. Exh. V. She broke down and chunked the bigger assignments to make it easier and she provided a prioritized list of work for the student to complete when she fell behind in work.
Even with all of this assistance being offered to her, the student did not utilize these supports and was rarely present during live sessions. Additionally, during quarantine, the student regressed in utilizing her coping skills and not allowing her anxiety and depression take over her emotional and physical well-being.” Exh. W-2.
During the last trimester, the student was supposed to receive two individual therapy sessions per week as well as one group therapy session per week. Although she did participate in the individual therapy weekly, she only attended one group therapy session during the last trimester. Exh. X. For April, May and June, $3,900.00 per month was charged for all of these clinical services even though she missed one out of three per week. Exh. Y.
The parent seeks tuition reimbursement for the entire 12-month 2019-2020 SY, as well as costs for transporting the student to and from school for doctor’s appointments and weekends and vacations at home. Tr. 93-95. There was no evidence presented regarding the cost of transportation to and from schoolfor doctor’s appointments and weekends and vacations at home.
Conclusions of Law
The IDEA was enacted to “ensure that all children with disabilities have available to them...a [FAPE] which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C.A. § 1400(d)(1)(A) The IDEA requires that all children with disabilities be identified. It further provides that all IEPs be tailored to fit each child. As the Supreme Court of the United States has held, the services and supports listed in a student’s IEP must be “reasonably calculated to enable a child to make progress appropriate in light of [his] circumstances.” Endrew F., 137 S. Ct. at 999.
Instructional topics in an IEP can include academic and nonacademic skills, including social/emotional regulation. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 248-9 (2d Cir. 2012). In a tuition reimbursement case such as this one, the DOE first has the burden of proof to show that it provided a FAPE to the student in the SY in question. The DOE did not present any evidence to show that it offered the child a FAPE for the 2019-2020 SY. It presented no evidence to show that it offered the child an appropriate program or placement or conducted appropriate evaluations of any kind. Accordingly, the DOE has failed to meet its burden. [2]
If the DOE fails to meet its burden in a tuition reimbursement case, the parent bears the burden of proof to how that the unilateral placement was appropriate by offering the student a reasonable opportunity to acquire and educational benefit. A parent who unilaterally places her child in a private school without the consent of the school district is entitled to reimbursement if the private school placement was proper under the Act. Florence County School District v. Carter, 510 US 7, 15 (1993). While it is not necessary that the unilateral placement “meet the IDEA definition of a free appropriate public education,” it is necessary that the placement is appropriate for the student. Frank G. v. Board of Education of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’placement...”Gagliardo v. Arlington School District, 489 F.3d at 112 (2d Cir. 2007). No one factor is necessarily dispositive in determining whether parent’s unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. The parent 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 Id. In addition, the unilateral placement need not be the LRE.
In this case, the parent bears the burden to show that the school she chose for the student during the 2019-2020 SY was appropriate at the time she chose it for the unilateral placement. In addition, as counsel have pointed out, the SY in question here presents a novel issue. Was the school able to continue to provide a reasonable opportunity to acquire and educational benefit after the school changed to a virtual program down due to
COVID.
Looking at the time period before COVID, it is clear from the record, given the student’s lengthy and serious history of mental health issues, including hospitalizations for anxiety, depression and suicidal ideations, school avoidance and years of private therapy, attendance at multiple schools where she could not complete the programs and recommendations from professionals who evaluated her as recently as November 2019 (Ehx. M) and who knew this student that this student continued to require a residential therapeutic program.[3]
In January 2019 the parent enrolled the student in a 12-month therapeutic out-of-state residential program which she continued to attend throughout the 2019-2020 SY. There, the student worked closely with an advisor who was aware of her every move. The student was required to follow a very structured program each and every day. The student and the advisor had daily contact to discuss the students emotional and social issues.
In addition, the student had two individual counseling sessions each week and one group session each week. She attended academic classes almost every day. Exh. G. Her school avoidance issues decreased, her social issues were nearly resolved . This was the type of program she needed in order to acquire educational benefit because it addressed her most pressing problem of school avoidance on a daily basis. It tracked her attendance and kept her on a tight schedule. She received A’s and B’s during the first Trimester of the SY which extended from September 5, 2019 through December 20, 2019.
Exh.O.[4] Accordingly, the unilateral residential placement was appropriate from at least September through March 17 when it was no longer a residential program due to COVID restrictions.
Separate considerations must be given to the appropriateness of he program once the student returned home. As described in great detail above, from the time the student was sent home in March, the school provided the student with extensive opportunities to learn while using a remote learning program. As also shown above, despite all of the extensive efforts made by the school staff including her advisor, her teachers and her counselors, she was unwilling or emotionally unable to consisitently participate successfully in remote learning. The interference of COVID presents unique problems. In this case, there is no question that if the student had continued to reside on campus, she would have most likely continued to attend class and make progress. Remote learning is difficult for typical students and is very difficult for students with disabilities particularly where, as here, the student’s most pronounced difficulty has been school avoidance. She did not take full advantage of the program that was offered by the school. At the point where that became obvious, the school should have done more to encourage her participation. The school knew that she attended her individual therapy sessions but failed to attend group therapy sessions. Instead of charging her parent for the missed group session every week, it should have offered the student an additional individual session weekly. It was not appropriate to charge the parent the full amount for clinical services after the child returned home when it became apparent that the student missed all but one group therapy session all semester. The school should have made that adjustment.
Accordingly, the amount charged for those clinical services from April through June will be adjusted downward by one third since the DOE should not be responsible for paying for a service that was not given. In every other respect, the school provide the student with an opportunity to acquire educational benefit and was thus, appropriate.
Accordingly, the parent has met her burden to show that this school was an appropriate placement for the 2019-2020 SY with the exception of the failure of the school to provide adequate counseling during COVID because it was reasonably calculated to provide the student with an opportunity to acquire an educational benefit.
After having established that the unilateral placement was appropriate, the equities have to be considered before tuition can be reimbursed. The fact is that this student should have been identified long ago for special education services. The Parent sent a letter to the Committee on Special Education (CSE) on May 24, 2016 requesting an evaluation and individualized educational program (IEP) and providing consent to conduct evaluations and speak with the student’s treatment team. Ehx. C.
There was no response to this letter, and the CSE attempted to close the Parent’s request in 2017.
Ehx. P. The parent was confused about why the CSE would think that the case should be closed .
Her confusion was justified particularly where, as here, the DOE was well aware of this student’s disabilities and had even provided home schooling and in-patient schooling to her for some period of time in the past yet did nothing to independently try to evaluate her. In sum, the parent did what she could to get the student a proper DOE placement but to no avail. The only delay was related to the parent’s efforts to obtain an IEE a soon as possible in manner that would enable the student to continue to attend school. After years of requesting that an evaluation be done by the DOE without success, she was justified in taking matters into her own hands regarding obtaining an evaluation. Moreover, the record is silent as to whether the DOE made a recommendation for a placement at any time during the 2019-2020 SY. The parent was left with no other option but to continue the student’s unilateral placement for the entire SY. Accordingly, the equities tip in her favor.
The parent’s request for tuition reimbursement for the 2019-2020 SY minus the cost of a third of the charges for clinical services ($3,999) given in April, May and June and half of the residential charge for March ($1,550 because remote learning began in the middle of March).
The education charges shall be reimbursed in the amount of $54,700 upon proof of payment. The clinical charges shall be reimbursed in the amount of $42,551 upon proof of payment. ($46,550-
$3,999). The residential charges shall be reimbursed in the amount of $26,200 upon proof of payment ($27,750-$1,550).
It is hereby ordered that the parent’s request for tuition reimbursement for the school the student attended for 2019-2020 SY is granted in part. The parent is entitled to receive reimbursement for the tuition she paid as follows:
1) the education charges shall be reimbursed in the amount of $54,700 upon proof of payment submitted to the DOE,
2)the clinical charges shall be reimbursed in the amount of $42,551 upon proof of payment submitted to the DOE. ($46,550-$3,999),
3) the residential charges shall be reimbursed in the amount of $26,200 upon proof of payment submitted to the DOE ($27,750-$1,550)
It is further ordered that the parent’s request for reimbursement of transportation costs to and from school for doctors’ appointments, weekends and holidays is denied since no evidence or legal support was presented to support the request.
Dated: November 20, 2020 Judith T. Kramer
Impartial Hearing Office.
PLEASE SEE FOLLOWING PAGE FOR APPEAL NOTICE
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or Public School District has a right to appeal the decision to the State Review Officer of the New York State Department of Education under Section 4404 of the Education Law and the Individuals with Disabilities in Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party, within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review , notice of request to review, request for review and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 and model forms are available at http:www.sro.nysed.gov.
Directions and forms can also be found in the office of the State Review website: www.sro.nysed.gov/appeals.htm.
PARENT’S EXHIBITS
A.Request for Impartial Hearing,7/9/19, 4 pp/
B.TenDay Notice 6/14/19, 3pp
C. Program Description Undated, 19pp
D. Enrollment Contract,7/22/19, 4 pp.
E. Tuition Affidavit,10/29/19, 1p.
F. Current Class Schedule,Undated, 1p.
G. Attendance Records ,2019, 2pp.
H. Comprehensive Service Plan, June 2019, 3pp.
I. Advisory Report, June, 2019, 3pp.
J. Clinical Report ,March 2019, 5pp.
K. Report Card 8/16/19, 4 pp.
L. Progress Report,10/25/19, 3pp
M.Independent Neuropsychological Evaluation,11/18/19 ,19 pp.
N.Letter Regarding Diagnoses and Medications,11/22/19, 1p.
O. Report Card,12/20/19, 4pp.
P.Letter to CSE from Parentsm5/24/16, 2pp
Q.Letter from to Parent with Invoice, 3/25/20, 2pp.
R.Letter from to Parent,3/27/20, 2pp.
S.Letter from to Parent,4/1/20, 5pp.
T.Letter from to Parent,4/24/20, 2pp.
U.Trimester 3 Academic Progress Report, 4/27/20-6/12/20, 3pp.
V.Learning Profile Report, 3/2020, 4pp.
W.Advisory Report,3/2020 ,4pp.
X.Clinical Report, 3/20-6/20, 4pp.
Y.Final Tuition Statement, 6/22/20, 1p,
Z.Final Attendance Record2019-2020, 2pp.
DOE EXHIBITS
| 1 | 9/13/2019 Notice of Social History 2pp |
| 2 | 9/20/2019 Notice of Social History 2pp |
| 3 | 10/18/2019 Appointment Letter for 1p Psvchoeducational |
| 4 | 11/18/2019 Appointment Letter for 1p Psvchoeducational |
| 5 | Not dated Level 1 Vocational Interview 2pp |
| 6 | Not dated Level 1 Vocational Interview 2pp |
| 7 | 10/17/2019 Social History Report 5pp |
| 8 | I0/17/2019 Consent Form 1p |
| 9 | 10/17/2019 Consent For Use of Electronic Mail 1p |
| IO | 10/17/2019 Parent/Guardian Home language 1p |
| II | 10/17/2019 Level I Vocational Interview-Parent 2pp |
| 12 | 10/17/2019 Request for Release of Records 1p |
APPENDIX
Although it is not part of the record, DOE counsel has requested that a copy of the DOE’s closing brief be appended to this decision.
THE NEW YORK CITY
DEPARTMENT OF EDUCATION
IMPARTIAL HEARING OFFICE
In the Matter of
IHO Case No.: 185136
CLOSING BRIEF
FOR THE NEW YORK CITY DEPARTMENT OF EDUCATION
Of Counsel:
, Esq.
PRELIMINARY STATEMENT
This Closing Brief is respectfully submitted by the New York City Department of Education (“DOE”), in opposition to the request by Judy Wenger (“Parent”) for tuition reimbursement for the 2019-2020 school year at the for her child (“ ”). The Due Process Complaint (“DPC”) requests tuition for the for the 2019-2020 school year. It is the DOE’s position that the record does not establish that the restrictive setting at the is an appropriate placement for Therefore, the DOE respectfully submits that the parents’ claim for tuition reimbursement during the 2019-2020 school year should be denied in full.
The DOE did not present a case for Prong I. However, the Department submits that the parent has failed to meet her burdens under Prong II. The testimony adduced at hearing does not establish that the , a residential school in was an appropriate placement for the student for the 2019-2020 school year.
Therefore, the DOE submits that tuition at the should be denied in full.
STATEMENT OF FACTS
is a now a student whose Parent submitted a DPC on July 9, 2019, alleging that the DOE failed to provide with a FAPE for the 2019-2020 school year. Parent Exhibit (“Exh.”) A. has attended a host of schools both day programs and residential programs over the past few years and has reportedly struggled with mental health issues, including anxiety, depression and school avoidance throughout this time. In
January of 2019, was enrolled at the , a residential therapeutic boarding school. During the fall of 2019, when was attending the , the Parent had undergo a Psychological Educational Assessment completed by (Exh. M). In January of 2020, the CSE held an IEP meeting for classifying her as a student with an Emotional Disturbance and recommending that she attend a DOE specialized school with a 12:1+1 class ratio. The purpose of this brief is not to argue that the DOE provided FAPE to this student for the 2019-2020 school year. As stated previously, the DOE did not present any Prong I case, so this brief is only to address the Parent’s Prong II case regarding the appropriateness of the .
INTRODUCTION
A DOE Committee on Special Education (“CSE”) is charged with providing students with a Free and Appropriate Public Education (“FAPE”). The DOE in this matter did not present a Prong I case. However, the parents must show that their chosen program is appropriate, and the equities favor the parents. Only then can the parent receive an award of tuition payments paid to the unilaterally chosen private school. 34 C.F.R. § 300.148(c); Application of a Child with a Disability, Appeal No. 06-132.
The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C.
v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues or allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above, absent agreement by the parties (and the DOE does not agree to any extension of the scope of the hearing beyond the DPC). The scope of this brief is therefore limited to the four corners of the due process complaint and the issues raised therein pertinent to the DOE’s argument that the Parent did not meet their Prong II burden.
PRONG II - THE PARENT HAS FAILED TO SHOW THAT THE IS AN
APPROPRIATE PLACEMENT
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo v. Arlington Central School District, 489 F.3d 105 (2nd
Circuit 2006); see. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). A private school placement must be “proper under the Act.” Florence County School Dist. Four v. Carter, 510 U.S. 7 at 12, 15 (1993); Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359 at 370 (1985). In other words, the private school must have offered an educational program which met the student’s special education needs. See Gagliardo, 489 F.3d at 112, 115; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 at 363-64 (2d Cir. 2006); Walczak v. Fla. Union Free Sch. Dist, 142 F.3d 119at 129 (2d Cir. 1998); Matrejek v. Brewster Cen. School Dis 471 F. Supp.
2d 415 at 419. (S.D.N.Y. 2007) “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” id. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see also, Gagliardo, 489 F.3d at 112. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Board of Educ. v.
Rowley, 458 U.S. 176 at 188-89 (1982))).
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 is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. 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. They 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; see, Frank G., 459 F.3d at 364-65.
In the case at hand, the hearing record fails to support the conclusion that the was an appropriate placement for for the 2019-2020 school year. Parent was the first person to testify where she laid out a long history of psychiatric struggles which caused school avoidance issues, and made it clear that she thought that the most restrictive school environment was appropriate for (Trans. 72, line 14).
did reportedly struggle greatly with school avoidance, however both testimony from the Parent and ’s advisor makes it clear that even with that struggle, her academics were not greatly impacted. During the Parent’s testimony, she stated, “I needed someplace where someone was on top of her 24/7” (Trans. 74, Line 24-25). It is clear from the Parent’s testimony that needed an environment with lots of structure and check-ins and a residential school was the absolute most restrictive environment that could have been chosen (Trans. 71-72, Line 25-2). The is an extremely restrictive residential school that keeps very close tabs on students. During testimony from the Parent, she stated, “And they have a very strict program there of expectations for the children as far as going to school, going to class, doing homework, your privileges and your freedom, you know, your ability to do things is based on your attendance in school” (Trans. 72, Line 14-19). Additionally, during testimony from , one of advisors, she explained the check-ins at the : “Every new student that arrives here, it’s like a get-to-know-you phase. And they are on what you call supervision. And what supervision is, is that you’re always within eyesight and next to staff members” (Trans. 154, Line 3-8). then went onto explain the next phases of the check-ins at the which continued to be extremely restrictive to the student. The ongoing testimony regarding the restrictive nature of the may have been beneficial to the student initially when she first arrived in January of 2019, but by the time the 2019-2020 school year started in July of 2019, the restrictive nature of the school was not shown to be correlating with the student’s academic progress since she was doing average and above average. Such a restrictive environment was not shown to be appropriate for the student.
Both the testimony from at the and submitted documents such as report cards and progress reports from the 2019-2020 school year show that the student was doing academically average or above average and did not require such a restrictive placement. The parents bear the burden of proving that the private school offered an educational program which met the student’s special education needs. See Gagliardo, 489 F.3d at 112, 115. According to the testimony and the submitted evidence, the was not appropriate because it is clear that her disability was not affecting her grades since she was doing so well. During testimony, the Parent did note that it was possible that the was not academically challenging, which further supports the argument that the school was inappropriate for According to Exh. K-1, during the third trimester, received an A-, an A, a C and a C+, and another A-. These are all average or above average grades and it shows that although may have been classified as an emotional disturbed student, this disability was not significantly impacting her academics. Additionally, according to Exh. L1-4, which is report card from September 5, 2019 to October 25, 2019, she received an A in World Literature, an A- in Small Business Entrepreneurship, an A in
Chorus, a B in Chemistry, a B in Physical Education and Health and an A in Civics. Exh. O 1-4 which is report card but extends until December 20, 2019, the student received a B+ in World Literature, a B+ in Small
Business Entrepreneurship, an A in Chorus, a B- in Chemistry, a B in Physical Education and Health and a B+ in
Civics. Examining the progress reports and report cards from the during the 2019-2020 school year reveals that was not struggling academically and therefore the academic program at the was not offering an educational program to meet special education needs.
During Parent’s Prong II case, , a physical education and health teacher at the testified. She served as overall case manager and coordinated between teachers and therapists at the during a portion of stay at the . At the time of her testimony, was not advisor (Trans. 150, Line 2). was in charge of initial intake process at the , however when asked during testimony if identified any learning needs when she first was introduced to , responded, “No. There wasn’t classes there. I knew that she had school avoidance because of something that we talked about. And it was mostly social emotional that kind of inhibited her from attending school” (Trans. 151-152, Line 25-4). expanded on school avoidance issues, however she failed to note how or if these school avoidance issues affected overall academics. The progress reports and report cards submitted into evidence show that was receiving good grades and the overall restrictive environment of the school was not appropriate for The Parent’s private psychological evaluation conducted by (Exh. M) reveals that during the 2019-2020 school year, the student did not require such a restrictive school environment. In fact, the private psychological evaluation is not entirely conclusive of the Parent’s argument that required a residential school for the 2019-2020 school year. In the first paragraph of the psychoeducational assessment, the evaluator states that one of the questions the assessment seeks to answer is, what is the student’s current clinical status and underlying vulnerability, and have there been changes sufficient to suggest that she may be ready to leave the
? The report initially states that has been expressing a wish to return home which the report reiterates in its conclusion. In regards to psychiatric symptoms which the evaluation examines, the report states, “ is currently being treated for anxiety and major depression…Her total score of 18 places her currently in the moderate range of depression. Importantly, her depressive mood is not severe, and there are no current suicidal thoughts. She reports fatigue, loss of energy and thoughts of incapacity but not at a severe level” (Exh. M-9).
Additionally, in response to responses to the Beck Anxiety Inventory, she indicated a “moderate severity in symptoms of anxiety,” (Exh. M-10) and in regards to scores on the Bell Relationship Inventory for
Adolescents (BRIA), the report states, “ ’s scores on the BRIA are all within the normal range suggesting that she has basic trust and that her current psychiatric difficulties are not compounded by character pathology” (Exh. M11). The private psychological evaluation therefore does not show that the student required a school with such a restrictive environment, making the an inappropriate placement.
The private psychological evaluation’s recommendations do not include a recommendation that attend a residential school. In fact, in the section that discusses continued academic accommodations, the report states that must be given extended time on tests, take tests in a quiet room, free from distractions, must be given note-taking assistance, be given a reduced case load and private tutoring (Exh.M-13). The report states that she must be given these accommodations because of her difficulties initiating and following through on tasks and staying organized, and processing speed remains a weakness. Nowhere in this section that discusses academic accommodations for does it state that these accommodations can only be provided to her at a residential school. In fact, the report states, “Given these findings it is recommended that receive academic accommodations at and at any other school she attends” (Exh. M-13). Although the could implement these accommodations, it is a known fact that non-residential schools offer these exact sort of academic accommodations and in no way are they exclusive to just residential schools.
After the Parent presented their Prong II argument, the DOE was allowed to present a rebuttal witness who testified that the was an inappropriate placement for based on the conversations she had had with the Parent, individuals at the , and after examining documents that had been submitted to the Committee on Special Education (“CSE”). Although the rebuttal witness, has only worked for the CSE for approximately seven months, she is a nationally certified school psychologist, as well as a New York Certified school psychologist, and has participated in almost one hundred IEP meetings. The only two witnesses that testified during the Parent’s Prong II case were the parent, and , and only holds a teaching degree in physical education and health. Although these individuals know very well, they could not offer the type of clinical analysis and ultimately clinical opinion as to an appropriate placement for , which was able to do.
As argued earlier in the brief, academic abilities are reported to be strong and the private psychological evaluation provides further support that based on her overall academic achievement, she does not require the ’s restrictive environment. During ’s testimony, she was able to go through the private psychological evaluation and examine the academic and cognitive assessments, as well as other tests used to evaluate With the information obtained from those assessments she was able to examine verbal comprehension score (Trans. 258, Line 13-18) as well as her overall school achievement score (Trans. 260-261,
Line 9-4) which all fell within the average range. Based on these assessments, all provided by the Parent, testified as to her opinion of what sort of school was appropriate for She testified that should be placed in a setting where she has access to general education peers, but due to her social and emotional needs, she needs a smaller class size with the support of trained individuals to offer her intensive therapeutic support (Trans.
268, Line 3-9). Since is on grade level, and has an average IQ score, it was ’s opinion that attend a school with other general education students on her grade level and simultaneously receive the much needed therapeutic support. described that students who usually require a therapeutic setting as often suicidal, and who are very much at-risk and require 24-hour surveillance (Trans. 268, Line 18-23). According to the private psychological evaluation, is doing well academically and although she has moderate levels of anxiety and depression, she was not shown to require a setting with 24-hour surveillance which is her current academic setting at the . Although the offers a therapeutic setting, it is not an appropriate placement based on current academic levels and her improved psychiatric status. Additionally, with current situation surrounding the Covid-19 crisis, it is the Parent’s continuing burden to establish that the is an appropriate placement for the 2019-2020 school year and while the school appears to have moved to remote learning (according to the ’s website), the DOE would argue that the Parent must provide satisfactory documentation, including attendance records reflecting how the student’s needs were supported by the school during the closure. The is the most restrictive type of setting and inappropriate based on needs. Therefore, the Parent’s Prong II case fails to show the is an appropriate placement for the 2019-2020 school year.
CONCLUSION
While the DOE did not present a case for Prong I, the Parent did not establish that the was an appropriate school for the student for the 2019-2020 school year. Therefore, for the reasons set forth in this closing brief, the DOE respectfully requests that the Parent’s requests for tuition reimbursement for the be denied in its entirety.
Dated: April 16, 2020
Respectfully Submitted, /s/
Footnotes
[1] The student confessed to her mother that she had tied her bathrobe belt around her neck, leaving marks. Tr. 45. The parent brought her to be evaluated by a psychiatrist that day, who identified the student as being impulsive and at risk of hurting herself, but not suicidal. Tr. 45. The psychiatrist medicated the student, but the impulsive, self-harming behavior continued. The student was hospitalized for eight days to regulate the behavior with medication. Tr. 45. Thereafter, the student was never home alone, and her home was secured from sharp objects and fall risks due to her impulsivity and suicidal ideation. Tr. 64.
[2] The DOE held an initial IEP meeting and created an IEP in January 2020 finally identifying the student as a child with a disability many months after the school year began. The IEP was not offered into evidence. However, through testimony, it was established that the CSE recommended a 12:1:1 day program in that IEP. The DOE presented a rebuttal witness to show that a residential program was not appropriate at any time during the 2019- 2020 SY but the DOE has conceded that it failed to provide a FAPE for the entirety of 2019-2020 SY (DOE brief at pg. 3). Thus, there is no basis to consider any evidence which may have also been offered to support its very belated recommendation made in the January 2020 IEP that a day program was appropriate for the 2019-2020 SY. Accordingly, the only consideration here is whether the particular residential program selected by the parent provided the student with a reasonable opportunity to acquire and educational benefit at the time the SY began and during COVID .
[3] Given this history, the DOE certainly had an obligation to identify this child earlier and address her needs. However. the DOE’s failure to create a timely IEP or offer her any appropriate services or placement before or after COVID, does not entirely excuse the parent from meeting her burden to select an appropriate unilateral school placement.
[4] If one compares the student’s school performance at the school while in residence there with her school performance after she returned home, there is no question that she benefitted from and required a residential placement during the 2019-2020 SY.