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DECISION AND ORDER
Case Number 185289
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: September 5, 2019 (PHC), October 25, 2019, November 22, 2019, December 6, 2019
Hearing Officer: Rona Feinberg, Esq.
Actual Record Close Date: February 4, 2020
WITNESSES
October 25, 2019 , Esq. Attorney Parent
Mother
Head Teacher, Parent (via telephone)
Esq. Attorney Department of Education , Esq. Attorney Department of Education
November 22, 2019 , Esq. Attorney Parent , Esq. Attorney Department of Education
December 6, 2019 , Esq. Attorney Parent , Esq. Attorney Parent
Mother
Student
Director of Admissions Parent (via telephone)
Assistant Executive Director Parent (via telephone)
, Esq. Attorney Parent (via telephone)
, Esq. Attorney Department of Education
, Esq. Attorney Department of Education Hearing Officer’s Findings of Fact, Decision and Order
INTRODUCTION
On September 5, 2019 (PHC), October 25, 2019, November 22, 2019, December 6, 2019 I held an impartial hearing in this case pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, . The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
In the summer of 2018 was old and was classified as having Autism (Parent’s Ex. V at 1). That summer was unilaterally placed in the Program (“ ”). For the 2018-2019 school-year, the summer of 2019 and the 2019-2020 school-year was/is unilaterally placed in , aresidential program in , New York.
In an Impartial Hearing Request (“Request”) filed on July 15, 2019 by the parent’s attorney , Esq., of , ’s parent alleged that the Department of Education failed to provide with a Free and Appropriate Education ( “FAPE”) for the summer of 2018, the 2018-2019 school-year, the summer of 2019 and the 2019-2020 school-year. The parent asserted, among other things, that the Department of Education had last convened an Individualized Education Program (“IEP”) meeting for on May 9, 2014, and that it had not conducted any evaluations, updated ’s IEP or recommended a placement since that time. That IEP recommended a 12-month school-year (Parent’s Ex. V). As a remedy the parent asked for reimbursement/funding of the program for the summer of 2018 and for reimbursement/funding of for the remainder of the 2018-2019 school-year and 2019-2020 school-year (Parents’ Ex. A at 2).
The original compliance date in the case was September 28, 2019. I extended the compliance date five times, initially because the case was referred for settlement and subsequently for the availability of witnesses, for the receipt of the transcript, for the parties to prepare closing briefs and for this hearing officer to review all of the documentation and issue a Decision and Order.
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(11) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(i1i) of the Commissioner’s Regulations. Specifically, (a) the case was for the summer of 2018, the 2018-2019 school-year and the summer of 2019, all of which had already been completed at the time of the impartial hearing request; (b) in accordance with due process the parties were entitled to time for the Department of Education to determine whether the case would be approved for settlement and when settlement was denied, to prepare for a hearing, submit closing briefs and have this hearing officer review the transcript and written closing statements prior to issuing a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on *s education.
THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING
The remaining issues in the case are whether the Department of Education provided with a FAPE for the summer of 2018, the remainder of the 2018-2019 school year and the 2019-2020 school-year, and if not, whether the parent’s placements were appropriate, and if so, whether the equities of the case support the parents or the Department of Education.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2°! Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, US., 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c].
To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and “afford the student an opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Circ., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir.2012). In Endrew F. v. Douglas County School District, 580 U.S., 137 S.Ct. 988, 197 L.Ed.2d 335 (2017), the Supreme Court’s unanimous decision on special education, the Court clarified that a school district must do more than provide a "merely more than de minimis" education program to a student with a disability. Rather a school district must offer a program that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" (emphasis added) and each child’s program should be “appropriately ambitious” in light of those circumstances and provide the child with “the chance to meet challenging objectives” in the LRE. Id. at 1000-1002.
An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs. In order to conduct adequate assessments upon which the base the IEP, the district must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information.” 20 U.S.C. §1414(b)(2)(A). The IDEA further requires that the district ensure that the evaluations being conducted are sufficiently comprehensive to identify all of the student’s special education needs, and to ascertain the cognitive, physical, mental, behavioral, and emotional factors that contribute to the suspected disabilities. 20 U.S.C. §1414(b)(2)(A); 8 NYCRR § 200.4(b)(1)(v), (b)(5)Gi1), (b)(6)(xi).
The IEP must provide for the use of appropriate special education services to address the child's special education needs, and must establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. Endrew_F. 137 S.Ct. at 996, quoting Rowley, 458 U.S. at 202.
The Department of Education introduced documents into evidence, all relating to the and to , the two programs in issue. The Department of Education conceded that the last IEP for the is dated May 9, 2014 (Tr: 21). The Department of Education did not present any documents or witnesses for its direct case and I find that it failed to meet its burden of demonstrating that it provided with a FAPE for the summer of 2018, the remainder of the 2018-2019 school-year and the 2019-2020 school-year.
II.
Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that she obtained for for the school years in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2TM Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education needs. To qualify for reimbursement under the IDEA, parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the 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” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, US., 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walezak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).
No one factor is dispositive of in determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v..Cranston Public School Comm., 315 F.3d 21, 26-27 (1* Cir. 2002); M.S, 231 F.3d at 105.
A. Background
took when he was old. was diagnosed with Autism at the age of when he was in Pre-K. For kindergarten he attended a school for children with various disabilities. He then attended , an approved Department of Education non-public school, through the eighth grade. attended for the ninth through twelfth grades after which he received a certificate. He attended the transition program for the summer of 2018 (Tr: 71-74, 140-143). investigated transition programs for the 2018-2019 school-year. She wanted a program that would make independent teach him how to live somewhat on his own and placed him in program (Tr: 145).
The last IEP for , which was developed on May 9, 2014, recommended a 12-month placement (Tr: 21, 74-75; Parent’s Ex. V at 12). turned years-old on
A. Summer Program is the head teacher at , the transition program at for students ages years-old with a 12-month IEP (Tr: 27-29). The program is based in academics and internship. Its purpose is to reinforce academics as well as social skills in the classroom and in the community. (Tr: 29, 46-48). attended the for the 2016-2017 and 2017-2018 school-years and attended for the summer of 2018 (Tr:
49). He received the related services of occupational therapy, speech therapy and counseling (Tr: 53).
In the summer of 2018 there were between 30 and 35 students in the program. Ss class had twelve students. Mr. was his teacher and the assistant teacher was Mr. taught ELA and math (Tr: 29, 50-52).
Mr. described as a very enthusiastic young man who loved to go to school. He required some moderate prompting or support n academics and often needed one-to-one check-ins, a lot of structure, teacher feedback and redirection (Tr: 30). required additional supports from his occupational therapist, speech therapist and counselor (Tr: 30-31).
had a weekly schedule (Parent’s Ex. F) that included ELA and Math three times a week. During ELA, Mr. and , his assistant, split the class into small groups of six for reading short stories, which allowed for to have individualized attention. Mr. followed the Guided Reading Group Model to help students such as , who had difficulty with comprehension skills. The Model used flash cards that essentially directed the students to stop and re-read, and asked the students to identify the main characters and identify the most important part of the story. Mr. and Ms. provided with reminders to stay on task, re-read passages and find the important parts of the passage. They also addressed his need to for one-to-one intervention to make sure he stayed on task (Tr: 31-33, 58-61). Mr. taught math to with computation and word problems as well as by off-site shopping in the "Mr. has a Master’s degree in Instruction and Curriculum and a license for K-8 social studies. The license is recognized in New York (Tr: 28, 47). community. For shopping the students would be given a make-believe budget to buy clothing or food, an essential skill for promoting independence for (Tr: 32-33).
had Art class on Tuesdays. The art teacher taught the students to build a birdhouse and paint it correctly and at times the students had free time to draw, sketch and illustrate, which loved to do (Tr: 61-62; Parent’s Ex. F).
The schedule also included recreation, trips, vocational skills and interning in the (Parent’s Ex. F). On Mondays and Fridays attended a Vocational Skills class where he participated in discussions about, for example, body language and how to use appropriate social skills in a professional setting, skills necessary for to address in order to be able to obtain and hold a job when he transitions from a school program.
On Wednesdays took trips in a small group accompanied by the staff, including the related service providers, teachers, assistant teachers, and . The students traveled to different destinations such as , was involved in trip planning and preparation, which helped foster independence in travel. It also provided a time for to get positive feedback from the staff and for them to engage with follow-up questions reflecting on the trip (Tr: 43-44; Parent’s Ex. F). The staff also provided with verbal and visual cues to for time management and organization, for example which direction they should be going (Tr: 43).
On Thursday mornings went to where he would, for example, prepare pre-made lunches and assist in the classroom. Traveling to and from the grammar school served as practice for how to travel safely in the community, an essential skill for to master (Tr: 34, 57; Parent’s Ex. F). was provided with constant reminders and travel plans if he did not know where he was going, and his safety while traveling to the grammar school was ensured as he never traveled alone (Tr: 55-56). was accompanied to the internship site by a “ ”(* ~— ”) who provided support for at the worksite by scaffolding and moderate prompting so that he could learn how to do the task assigned to him (Tr: 36-37, 53-54).
On Thursday afternoons in and his fellow students discussed their internship work at the school, including what they learned from the experience that morning and how then could do better at their tasks (Tr: 37-38). On Fridays worked with his class on team building, cooperative skills, and how to work together, which was a great challenge for and the other students (Tr: 36, 57-58; Parent’s Ex. F).
The recreational classes helped with his social skills and advocacy and it was also a health and fitness component of the program. The classes took place on Friday afternoons either at the park or at the (“ °), which is walking distance from the school. Going there helped with traveling independence and responsibility. The students had to scan a card when they arrived. If forgot to bring his card, the solution would involve problem solving, talking to the person at the desk, explaining what happened and following their instructions to gain admission. On Friday afternoons went to the for free time, where he participated in yoga if he wanted to be in a quiet space, table tennis, billiards or an area to “hang out” and draw or read (Tr: 40-41; Parent’s Ex. F). On some Friday afternoons would travel by subway to to work in the garden there, learning how to plant and maintain plants correctly (r: 41-42).
At the beginning and end of each day attended an advisory period for organization such as attendance, discussing the weather for going out into the community later in the day and collecting permission slips. During that time had access to his occupational therapist, , for one-to-one support, as he needed a “little bit more structure” in terms of organization and reminders of what train or bus to take home (Tr: 44-45). Ms. worked with on putting travel routes and his address into his phone. The speech therapist worked with on self-advocacy, body language, how to be safe in the community and how to speak to someone safe in the community if he is lost, all skills related to his need to become independent (Tr: 69). Mr. spoke often with Ms. and *s counselor (Tr: 33).
Mr. believed that was an appropriate placement for for the summer of 2018. Specifically, he explained that after an extended break would regress in his social and vocational skills, and that it was “very important” for him to continue in school during the summer. He opined that was able to maintain his skills over that summer (Tr: 45-46).
In its closing brief the Department of Education argues that the program was not appropriate for because the evidence did not demonstrate that it provided “education instruction specifically designed to meet the unique needs of a handicapped child” (IHO Ex. I at 15); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (emphasis added) and because the parent failed to show that made progress in that program (THO Ex. I at 17). I find these arguments to be unavailing.
At the time that attended the program he was old. The Department of Education had not provided with an IEP or placement in the four years since his May 2014 IEP. Thus, for the summer of 2018 the parent had no choice but to find a program that she believed would provide him with an education that was appropriate to meet his needs. As detailed above, the testimony by Mr. demonstrated that the program did, in fact, provide with educational instruction specially designed to meet his unique needs in light of his circumstances during the summer of 2018, and that the program was supported by such services as were necessary to permit to benefit from instruction, for example, occupational therapy, speech therapy, counseling, internship and individualized and small group instructing using prompting and scaffolding as needed. See Endrew F., 137 S.Ct. at 1000-1002; Rowley, 458 U.S. at 188-189, 207).
Moreover, as explained above, a parent is not required to show progress in order to demonstrate the appropriateness of a unilateral placement. Rather the standard is whether the placement is “/ikely to produce progress and not regression.” Walczak, 142 F.3d at 130; Frank G., 450 F.3d at 364. The testimony by Mr. and ’s Progress Report for the program demonstrate that he made progress in his classes and in developing independence and that the program prevented him from experiencing regression (Tr: 45-46; Parent’s Ex. W).
Thus, I find that the parent met her burden of demonstrating that was an appropriate program for for the summer of 2018.
B.
Program was for grades 9 through 12 (DOE Ex. 2 at ) and Mr. testified that the transition program at was for students up to the age of years-old (Tr: 46-47). completed the 12TM grade in June 2018, attended in the summer of 2018 and he turned — on , visited in three times before deciding to enroll in the program for the remainder of the 2018-2019 school year. She chose that program for him because it was small, because she believed that needed a residential placement to become independent, and because she could travel there by train or by bus to visit him (Tr: 80, 82).
is the Director of Admissions for . The program is run by , anon-profit agency in the capital region that serves individuals[2] with intellectual disabilities (Tr: 178, 181, 214).? The program takes place on the campus of the (“ °y in , refers to as a post-secondary program designed to teach students how to live independently, maintain competitive employment and provide students with disabilities with the opportunity to share a college experience similar to their siblings and high school peers. The program also aims to give students an age appropriate setting for social opportunities with peers on a college campus. The students take non-credit functional life skill-based courses held on the campus of the . The courses focus on functional academics such as personal finance, health and wellness, travel and navigation and cooking. There are also a number of elective courses (Tr: 187, 219; Parent’s Ex. J).
The students in their first year take classes five days per week. The goal of the program is focused on getting the students to live independently as much as possible and ideally to one day maintain some kind of employment. For the 2018-2019 school-year there were 38 students enrolled in the program all of whom had Autism and other intellectual disabilities (Tr: 182-184, 187, 204, 219; Parent’s Ex. EE). All of the adjunct professors in the academic portion of the program have Master’s degrees as required by © Each adjunct professor develops his/her own syllabus and oversees the student’s coursework (Tr: 188, 223). The career courses are taught by employees from the employment department (Tr: 222-223).
Prior to admission participated in an overnight stay and a student and family interview, both with and with . Ms. and the director of made the final determination admitting to the program. The last step of the application process involved an interview with the Dean of Education at that was also attended by Ms. . The dean had the to deny ’s application if he deemed to be inappropriate for the program (Tr: 83, 241-242).
attended during the 2018-2019 school-year and he is currently enrolled there for the 2019-2020 school-year. ’s core classes during the 2018-2019 school-year included Finance, Community Navigation, Cooking Prep, and Community Involvement. The academic coordinator of the program determines the class size for the courses. For a core class such as Finance and includes budgeting, was grouped with other students with his skill set in dealing with money, for example an understanding of how to count money and make change. For Finance Lab used his skills in the community or at a bank or ATM (Tr: 188, 249, 255; Parent’s Exs. L, M). The student to teacher ratio in such a core class was smaller than it was in an elective class. The purpose of the small studentto-teacher ratio is to provide students such as with more one-on-one and small group instruction to make it easier for the students to participate in the curriculum (Tr: 190-191).
All of the students, including , had a personalized schedule for the 2018-2019 schoolyear, the summer of 2019 and the 2019-2020 school-year (Tr: 191; Parent’s Exs. L, M, N, O (Tr: 191-192). He was provided with the additional supports of math tutoring and small group artwork, a high interest of his and a good constructive activity. *s math tutor was who helped him with money and practicing math on the computer (Tr: 272). also addressed functionalized coping skills for independence and he received a lot of instruction for Menu Planning and Food Shopping, which was paired with cooking and was one of the life skills that is primary focus of the program. All of that instruction took place in small groups (Tr: 192-193, 196). The Menu Planning class incorporated nutrition. In Cooking Prep, learned about safety in the kitchen with respect to fire, cutting, peeling and cooking. He learned to put together a menu for seven days, go food shopping within a set budget, weigh produce and utilize coupons when possible, all skills geared to living independently (Tr: 196-197).
participated in group counseling at the school during the 2018-2019 school-year (Tr: 203-204, 221-222). He also took a “Human Sexuality” course that taught him about relationships, safety, sexually transmitted diseases and protection (Tr: 227; Parent’s Ex. M). took a Community Involvement class that was taught by the community coordinator for the program, , who works for and has a Bachelor’s degree (Parent’s Exs. L, M). There were other adults in the class as well (Tr: 228-229). The students discussed their accounts and played a board game (Tr: 272-273).
In ’s Personal Relationships class the students discussed how to be safe around people and what was not safe to do to themselves or others. There were eleven students in that class (Tr: 273-274; Parent’s Ex. L). In the spring of 2018-2019 took an Internship Prep class with , who took the students places that had to do with internships, such as recycling cans or going to a church for the homeless and the sick. They also worked on interviewing skills and learning how to develop a resume, and the students took turns for practice interviews (Tr: 275, 286; Parent’s Ex. M). Those classes helped him get his internship at for the 2019-2020 school-year (Tr: 286-287).
The community coordinator, , also supervised the Community Navigation course, which had multiple teachers because it focused on small groups (Tr: 230-231; Parent’s Ex. K at 4). The course taught how to navigate the community and take the bus to various places in the city (Tr: 279). The students were given a tour of the AMTRAK station in as many of the students, including , take AMTRAK to go home. learned the bus system so that he became able to “come and go” independently, and get from the campus to AMTRAK. The Navigation course also taught him community and travel safety and awareness (Tr: 193, 236-237, 250). worked on planning his travel routes and mapping the route with the use of Google both in the Navigation class and individually with his occupational therapist (Tr: 237). ’§ progress in navigation is “evident” in that he is “quite independent” with getting around the city of and going to different places, when at the beginning of the 2018-2019 school-year he was not aware of where he was or how to use the city bus system (Tr: 259-260).
Many of the students in the program have a deficit in communication and thus communication skills, with respect to personal relationships, friendships and employment relationships were incorporated into many of ’s classes (Tr: 201). Time management skills were also incorporated into the curriculum. For example, had to manage to get to his classes on time and manage his “down time” by getting involved in clubs and activities at . He also had to learn to balance his class requirements with his household chore responsibilities and the school’s social aspect (Tr: 202-203, 218). participated in the “ ” club at which is a mentoring program that partners a student with a disability and a student who does not have a disability to offer social opportunities on campus. That club provided with mainstreaming opportunities and exposure to situations that aided him in interacting with the larger community (Tr: 219). He had access to all clubs and activities on the campus (Tr: 232).
For the residential component of the program the school tries to group students who have similar interests or hobbies. For the 2018-2019 school-year lived ina owned by . Each floor housed a three bedroom apartment and had his own room. The residential staff is hired by and participates in training classes that cover fire safety, CPR and putting people first. All of the training is focused on working with people who have disabilities (Tr: 94, 215, 239, 291).
The residential staff provided with support in cooking, cleaning and overall problem solving, particularly with housemates if any problem arose. The staff also motivated to attend clubs and activities in the evening hours (Tr: 198-199; Parent’s Ex. J). The overnight staff assisted in making sure that in the morning he left in time to get to his classes (Tr: 200). The students have a nightly curfew of 11:00 on school nights and 12:00 on weekends, but are free to come and go during the day. They are allowed to go off campus without supervision and there is “buddy system” for when it is dark (Tr: 216-217).
does not administer formal assessments and there is no formal end to particular courses. Over the two years that the students attend the program the classes are ongoing and each student continues to work on his/her skills. Each professor/instructor determines how to grade his/her own students. The students receive an overall grade for a class and can access their grades privately online. While the students have to pass their classes in order to stay in the program they receive no credit (Tr: 206).
Twice a year holds a meeting to discuss each student’s progress and the family is invited to attend in person or by phone (Tr: 206-207). If needs arise the staff is available to the family as well (Tr: 207). Ms. opined that had “definitely” gained certain skills while in the program. For example, when arrived he could not take the bus independently and now he is able to do so. When he arrived he was not able to cook and now he is able to cook full meals (Tr: 213).
When the students complete the program they participate in the graduation ceremony with students, but receive a certificate of completion from at , not a diploma (Tr: 233). is the assistant executive director of and the employment program (Tr: 244). While Ms. was not involved in ’s grouping for his core classes, the size of those classes varied depending on the number of students in the program at a given time (Tr: 248-249). Ms. participated in one meeting with respect to to discuss behavior issues that occurred while he was in the program. That issue involved his approach to . (Tr: 252-253). was involved in another incident in which . The staff is working on on his social skills an appropriate behaviors and there have been no further incidents (Tr: 252-253, 257-261).
was in frequent contact with the school staff over the course of the 2018-2019 school year, the summer of 2019 and during the current school-year and she visited frequently (Tr: 82, 84, 98-102, 106-108, 110-111, 114); Parent’s Ex. FF). She speaks to every day and she visits the school often. When she goes with to the mall he is able to read the names of the stores, which he could not do before. She speaks to his teachers “all of the time” and to his counselors at least weekly (Tr: 84, 91, 100, 104). When first began in the program would travel to to take him back home to , is now able to travel from back home to by train and subway (Tr: 92, 114-115, 136-137). He also now goes to the laundromat and goes grocery shopping on his own when he is home, tasks he was not able to do before (Tr: 95, 97, 126). He also buys his own clothes, cooks, packs a lunch, can travel on a plane alone, goes to the doctor on his own, takes his own medicine and knows when he has to get refills, goes to the mall and the movies on his own. stated that she “now sees a light at the end of the tunnel, noting that before she would not leave him for three or four hours but now can leave him for three or four days (Tr: 126-128, 130). She noted that the residential part of the program was essential because she is “ ” years-old and he had to learn how to not rely on her and to take care of himself and pay his own way (Tr: 144-145).
1) ’s Testimony Regarding
During the 2018-2019 school-year took Finance on Monday afternoons with eight students and one teacher, where he learned about time and money. He had homework from that class involving multiplication and money. On Fridays he had a Finance Lab class during which ; and helped him learn about using a bank card at . They
* Ms. has a Bachelor’s degree in sociology and an associate degree in human services (Tr: 244). played games in class to help them learn. Some days the class went to the , the place on campus that serves lunch and snack. There, gave the students money in envelopes after which they waited in line to use the ATM (Tr: 266-268; Parent’s Exs. L, M).
In *s Menu Planning class the staff helped the students write down the things they needed for breakfast, lunch and dinner. In his Food Shopping class the students were given a voucher, they went to the store with a staff member or teacher in groups of five, and he got the food that he needed to cook for the week. used the microwave for most of his foods but cooked soft garlic bread in the oven. He still needs help to make gingerbread or cinnamon rolls and the school is working with him on that task (Tr: 269-270).
In *s Community Navigation class , the teacher, planned trips for the students to a museum or to a store where the staff helped him to buy clothing (Tr: 270; Parent’s Exs. L, M). In his Cooking Prep class taught the students to cook vegetables, fruits and cake (Tr: 271; Parent’s Exs. L, M). In his mind and body class the students learned about not hurting themselves, not doing drugs and keeping their bodies safe (Tr: 280; Parent’s Exs. L, M).
During the summer of 2019 took a Volunteerism class in which he worked with and other students learning to recycle (Tr: 281; Parent’s Ex. N). He also took an Animal Science class in which and taught him about the inside of an animal and how animals adapt. There were seven students in that class (Tr: 281-282; Parent’s Ex. N). In Ss Communication Skills class the teacher taught him about how to speak up and not be a bully (Tr: 282; Parent’s Ex. N). In his Entrepreneurship class made paper bags for the and companies which give out dog treats and other merchandise. He also took an Animation class where he learned how to make a drawing using “stop motion” (Tr: 283-284; Parent’s Ex. N). In Cooking Class made muffins and brownies for a summer vacation party. There were six students working in each of two kitchens (Tr: 284-285; Parent’s Ex. N).
testified that helped, and is helping, him become his “own person” (Tr: 291). He is living on his own but getting the help that he needs from his teachers (Tr: 292).
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I find that the evidence and testimony at the hearing, detailed above, conclusively established that provided with educational instruction specially designed to meet ’s unique needs for acquiring independence in light of his circumstances for the 2018-2019 school-year and the summer of 2019 and that it was supported by such services as Were necessary to permit to benefit from instruction. See Endrew F., 137 S.Ct. at 1000-1002; Rowley, 458 U.S. at 188-189, 207.
The Department of Education, however, asserts in its closing statement that the parent is not entitled to reimbursement for because: 1) it is actually a postsecondary program; 2) the parent failed to present evidence to demonstrate that ’s instruction was specifically designed to meet the unique needs of ; 3) the parent failed to present evidence to establish that made progress as a result of the instruction he received at ; and 4) the parent failed to present objective evidence to prove the Student required a residential placement to receive an educational benefit (THO Ex. I at 3-4). For the following reasons I find these arguments to be without merit.
The Department of Education is required to provide a student with a disability an education through secondary school. 20 U.S.C. § 1401(34); Educ. Law § 4401(9); 34 C.F.R. § 300.43; 8 NYCRR 200.1 (fff). A “[s]econdary school” is defined as a “nonprofit institutional day or residential school, including a public secondary charter school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12.” 20 U.S.C. §1401 (27); 34 C.F.R § 300. However, a student with a disability such as is eligible for special education services until graduating from high school with a local high school or Regents diploma, or until the end of the school year in which he turns .8 N.Y.C.R.R. §§ 200.5(a)(5)(ii), (111).
Significantly, prior to attending did not graduate from high school and did not receive a local high school or Regents diploma. Rather, he received a certificate upon aging out of the program at the age of — (Tr: 46-47). While was entitled to an education until the age of 21, the Department of Education, as noted numerous times above, did nothing to provide a placement for him until he reached that age. By its failure to do so for a period of four school-years the Department of Education also violated its responsibility to provide with transition services. Specifically, students over the age of 12 must receive an assessment that includes a review of school records and teacher assessments, and parent and student interviews, to determine vocational skills, aptitudes and interests. 8 N.Y.C.R.R. §200.4(b)(6)(viti). A Level 1 vocational assessment is a process that occurs over a period of time. After the age of 15, or younger if deemed appropriate, measurable postsecondary goals and recommendations for transition services must be updated annually. Transition Planning _and__Services__for Students with Disabilities, Nov. 2011, http://www.p12.nysed.gov/specialed/publications/transitionplanning-2011.htm at 2-3.
Transition services are defined as:
a coordinated set of activities for a student with a disability, designed with a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student’s movement from school to post-school activities, including, but not limited to, post-secondary education, vocational education, integrated competitive employment (including supported employment), continuing and adult education, adult services, independent living or community participation. The coordinated set of activities must be based on the individual student’s needs, taking into account the student’s strengths, preferences and interests, and shall include needed activities in the following areas: (1) instruction, (2) related services, (3) community experiences, (4) the development of employment and other post-school adult living objectives; and (5) when appropriate, acquisition of daily living skills and provision of a functional vocational evaluation. 8 NYCRR 200.1(fff). It is uncontested that the Department of Education has utterly failed to provide with any vocational assessment or transition planning whatsoever. When he reached the age of and the Department of Education did not offer him any placement, it was up to to find an appropriate placement to prepare him to transition out of a school program, foster his independence and provide him with vocational training. program filled this void. It is clear from the testimony and evidence that while refers to itself as post-secondary program and takes place on the campus of the ; (Tr: 182, 214, 219), it does not provide a post-secondary education but rather tailors its program to address the needs of students like , who are diagnosed with Autism and other intellectual disabilities and who have challenges with executive functioning, communication, independent living and social skills (Parent’s Exs. J at 1, EE). The program is designed and run by , hot the college. While some of the courses were taught by adjunct professors, and the students in the program did not attend classes with students (Tr: 187). Rather, they attended functional academic and life skills non-graded courses, many taught by employees, such as budgeting, dealing with money, cooking, grocery shopping and traveling, all designed to help them become independent citizens. The program catalog states that the typical student in the program has at a minimum only a third grade reading level and that the program does not track or require specific grade achievement scores (Parent’s Ex. EE). The students merely have to pass their courses to remain in the program (Tr: 206).
Moreover, the students do not reside in the dorms with the students. Rather, they reside in houses owned by and supported by the staff. The only interaction the had with students is in the common areas of the campus as well as in clubs and the “ ” program. Thus, I find that there is no bar to reimbursement/payment for ’s tuition for on the ground that it was a post-secondary institution...
In addition, contrary to the Department of Education’s arguments otherwise, the testimony at the hearing, detailed above, left no doubt that was specifically designed to meet ’s unique needs as the program enabled him to, for example, travel independently, both in and back and forth to , gO grocery shopping with a set budget and prepare his meals. The program also enabled to generalize his skills, as testified that when at home in buys his own clothes, cooks, packs a lunch, goes to the doctor on his own, takes his own medicine and knows when he has to get refills, skills that he never before demonstrated. While, as noted supra, a parent is not required to show progress in a unilateral placement, the testimony by Ms. ; ’s Progress Reports and ’s testimony leave no doubt that made substantial progress in that program.
I also reject the Department of Education’s contention that payment should be denied because there was no objective evidence to show that required a residential program (IHO Ex. I at 13). At the outset, Walczak v. Florida Union Free Sch. District, 142 F.3d 119, 132-134 (2 Cir. 1998) upon which the Department of Education relies to support its contention, is inapposite. Walezak concerned a student whose parents challenged the appropriateness of the programming recommended for their child in their school district’s public schools and sought reimbursement for a residential placement, contending that their school district should have recommended a residential program for their child. Id. at 123. The court in Walczak never reached the question of whether the parents’ choice of private residential school was appropriate for their child, but rather evaluated whether the district should have recommended a residential program for the student in the first instance to provide FAPE. Id. The SRO decision cited by the Department of Education in its Closing Brief is similarly inapplicable to the circumstances of this case, as it also involved a parental claim for funding for residential program based upon an argument that the district’s recommended day program for the school year in question was not sufficient to meet their child’s needs. See Application of the Bd. of Educ. of the Katonah-Lewisboro Union Free Sch. Dist., Appeal No. 19-012. Both of the cases cited by the Department of Education dealt with an analysis of whether a residential placement was required for the school districts in question to provide a FAPE in the first instance and evaluated the particular students’ prior educational history in determining whether the school district’s day recommendations were appropriate. Neither of those cases addressed the scope of a parent’s burden of proof to establish the appropriateness of the private residential placement she chose for her child when the Department of Education offered no placement at all and the Department of Education offers no authority that requires a parent to do SO.
In any event, the residential nature of was critical in enabling to achieve independence by learning, with support, to not be dependent on his mother but to live on his own, to manage his time, to clean, cook and, shop and to perform other daily tasks, not as alleged by the Department of Education, simply so that he could receive the experience of living in a dorm (IHO Ex. | at 14). Moreover, the program was, in fact, the LRE for since it fostered his independence without having to rely on his mother and it provided him with the opportunity to socialize with peers his own age.
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In sum, I find that the evidence and testimony at the impartial hearing support a conclusion that the parent met her burden of establishing that provided with an appropriate education reasonably calculated to enable him to receive educational benefits for the 2018-2019 school-year and the summer of 2019 in light of his particular circumstances and that he made substantial progress in the program.
IT.
The IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[d]; EM. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.
I find that the equities of the case favor the parent and the Department of Education does not contend otherwise (See DOE Closing Brief). It is uncontested that the Department of Education failed to hold an IEP meeting or recommend a placement for since May 2014.
In a letter dated June 20, 2018 advised , the Chairperson of CSE Region , that she had not yet had an IEP meeting for for the 2018-2019 school-year and that she would consider any program or placement that the CSE may recommend for him. stated that unless and until the CSE recommended an appropriate IEP and placement she would enroll in the Program for the summer of 2018 and in for the remainder of that school year and seek public funding for the placement. She did not receive a response but “absolutely” would have accepted an appropriate public school placement if it had been offered (Tr: 75-76; Parent’s Ex. B).
In a letter dated June 17, 2019 to , the Chairperson of CSE Region , related that she had not yet had an IEP meeting for the 2019-2020 school year and that she was willing to accept any program or placemen that the CSE may recommend for that year. stated that unless her concerns were addressed she was going to send to for the summer of 2019 and seek public funding for the placement. She did not receive a response but “absolutely” would have accepted an appropriate public school placement if it had been offered (Tr: 76-77; Parent’s Ex. C).
I find that the utter failure of the Department of Education to hold an IEP meeting for or offer him a placement during the four years prior to the summer of 2018, the 2018-2019 school-year or the summer of 2019, and the Department of Education’s failure to respond to ’s letters to the CSE for prior to those years, leaves no doubt that the equities favor the parent.
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The tuition for the program for the summer of 2018 was $10,125.00 (Tr: 78; Parent’s Ex. G). testified that she has not made any payments toward the tuition for that program and the Tuition Affidavit indicates that the “entire tuition remains due and owed” (Tr: 78-79: Parent’s Ex. I). tuition for the 2018-2019 school-year (August 2018-June 2019) was $40,445.60 including the residential portion of the program. Except for the initial $1000.00 initial deposit to to hold a space for for the 2018-2019 school-year, all of ’s payments are to (Tr: 147, 154-156, 216; Parent’s Exs. P, Q). As of October 28, 2018 the outstanding portion of the tuition due for that year was $22,403.60 (Tr: 209-210; Parent’s Exs. P, Q, R). The tuition for the ten week summer program at was $8,991.00 (Tr: 211; Parent’s Ex. S). The tuition for the 2019-2020 school-year (August 11, 2019-May 9, 2020) is $42,935.02 (Tr: 211-212; Parent’s Ex. T).
When a student turns twenty-one in the months of July and August of a school year, the Education Law entitles the student to remain in school through the end of August, or through the end of the summer program, whichever comes first (emphasis added). N.Y. Educ. Law § 4402(5). summer program ended on July 30, 2019 and turned . Thus, I find that is not entitled to reimbursement for any part of the fall semester that began on August 11, 2019 (see THO Ex. I at 15; THO Ex. II at 3, fn. 1).
’s tax return for 2018 shows an adjusted gross income of $ (Tr: 79; Parent’s Ex. I). has not been able to make any payments toward the program tuition. She is obligated to pay the tuition and did not know what she would do if tuition payment was not awarded after the hearing (Tr: 79). To pay for (Tr: 135, 137-138).
As explained above, I find that the Department of Education failed to provide with a FAPE for the summer of 2018, the remainder of the 2018-2019 school-year and the summer of 2019, that the program and provided with an appropriate education enabling him to receive an educational benefit in light of his circumstances, and that the equities of the case support the parent. Therefore, under this hearing officer’s broad discretion under 20 U.S.C. §1415(i)(2)(C)(iii) to grant such relief as is appropriate, I find that the parent is entitled to retroactive payment of the program tuition for the summer of 2018 and to reimbursement/payment to for Program for the 2018-2019 school-year and the summer of 2019. Burlington, 471 U.S. 359, 369-370; Mr. and Mrs. A. v. NY City Department of Education, 769 F. Supp. 2d 403, 427-428 (S.D.N.Y. 2011).
ORDER
In light of the above findings of fact, it is hereby Ordered that: 1) Within 30 days of the receipt of proof of ’s attendance at the program for the summer of 2018, proof of the tuition charged and proof of the tuition paid by the parent, if any, the Department of Education is to reimburse the parent for the portion of ’s tuition at that she has paid, if any, and pay the remainder of the tuition due directly to . The total amount of reimbursement/payment shall not exceed $10,125.00; 2) Within 30 days of the receipt of proof of *s attendance at for the 2018-2019 school-year, proof of the tuition charged and proof of the tuition paid by the parent, if any, the Department of Education is to reimburse the parent for the portion of ’s tuition at that she has paid, if any, and pay the remainder of the tuition due directly to . The total amount of reimbursement/payment shall not exceed $40,445.60; and 3) Within 30 days of the receipt of proof of ’s attendance at for the summer of 2019, proof of the tuition charged and proof of the tuition paid by the parent, if any, the Department of Education is to reimburse the parent for the portion of ’s tuition at that she has paid, if any, and pay the remainder of the tuition due directly to . The total amount of reimbursement/payment shall not exceed
$8.991.00.
Dated: February 11, 2020
Ronw Feimbery
Rona Feinberg, Esq.
Impartial Hearing Officer
EXHIBITS
DEPARTMENT OF EDUCATION:
EXHIBIT DATE NAME PAGES
1. program description 10/18/19 7 pages DOE
2. program description 10/18/19 6 pages DOE
3. program description 10/18/19 6 pages DOE
4. - Our Approach to Education 10/18/19 11 pages DOE
5. program description 10/18/19 9 pages DOE
6. 10/18/19 6 pages DOE
7. - Academic Overview 10/18/19 4 pages DOE
8. - Living Arrangements 10/18/19 3 pages DOE
9. - Supportive Presence 10/18/19 3 pages DOE
10. - Neighborhood and Community 10/18/19 3 pages DOE
11. - Preparing for the Working World 10/18/19 4 pages DOE
12. - Questions & Answers PARENTS: 10/18/19 15 pages DOE
A. Impartial Hearing Request dated July 15, 2019, 2 pages
B. Letter from to with Fax Confirmation dated June 20, 2018, 2 pages
C. Letter from to with Email Confirmation dated June 17, 2019, 3 pages
D. Letter from to with Fax Confirmation dated June 4, 2019, 3 pages Exhibit E Program Description undated, 2 pages Exhibit F Class Schedule undated, page 1 page
G. Re-Enrollment Contract dated May 23, 2018, 2 pages 2018-2019
H. Affidavit of dated July 31 2018, 1 page Exhibit I IRS file Signature Authorization dated September 13, 2019, 1 page Exhibit J Program Description undated, 4 pages Exhibit K — Our Staff dated October 18, 2019, 6 pages
L. ’s Fall 2018 Schedule, 1 page
M. ’s Spring 2019 Schedule, 1 page
N. ’s Summer 2019 Schedule, 1 page
O. ’s Fall 2019 Schedule, 1 page
P. Affidavit of dated October 29, 2018, | page
Q. Proof of Payment, various dates 14 pages
R. Student Cost Summary page 2018-2019 1 page
S. Student Cost Summery May 20, 2019- July 30, 2019 1 page
T. Student Cost Summary page 2019-2020 1 page
U. Transcript dated September 19, 2019, 1 page
V. Individualized Education Program dated May 9, 2014, 20 pages
W. Progress Report dated Summer 2018, 7 pages Exhibit X — Message from Our Executive Director dated November 21, 2019, 2 pages
Y. Fall 2018 Invoices 2 pages
Z. Spring 2019 Invoices 2 pages
AA. Summer 2019 Invoice dated September 16, 2019 1 page
BB. Invoice dated July 11, 2019, page Fall 2019 1 page
CC. Letter from Dr. dated December 2, 2019, 1 page Exhibit DD Course Catalogue V.3 dated 2018, 15 pages
EE. Program Profile undated, 1 page Exhibit FF Emails between and various dates, HEARING OFFICER: 18 pages
I. DOE Closing Brief Exhibit I Parents’ Closing Brief dated January 21, 2010, 21 pages Exhibit HI Parent’s Reply Brief dated February 4, 2020, 16 pages Exhibit IV DOE Subpoenas dated November 25, 2019, 7 pages Exhibit V Case Follow-Up Sheets documenting extensions various dates, 5 pages undated 18 pages
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. The regulations governing appeals are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at hitp://Awww.sroaysed. gov.
As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.
The Appeal itself must 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 for 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 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.
Footnotes
[2] Ms. has a Master’s degree in special education and severe multiple disabilities. She has New York State certification in special education (Tr: 178-179). > The adjunct professors are paid by (Tr: 225).