New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 185350

Student’s Name:

District Number:

Date of Hearing: October 10, 2019

December 10, 2019

February 26, 2020

Record Close Date: June 8, 2020

Hearing Officer: Gary D. Peters, Esq.

October 10, 2019

J Attorney Parent

DOE Designee Dept. of Education

December 10, 2019

Attorney Parent

DOE Designee Dept. of Education

February 26, 2020

Attorney Parent

Director/ Acad. Parent

Mother Parent

DOE Designee Dept. of Education

INTRODUCTION

On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #185350. The hearing was held at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by its Designee, ; the parent was represented by her attorney .

BACKGROUND

(the “Parent”), on behalf of her daughter, “ ”; filed a due process complaint on 7/17/19 The parents allege that The New York City Department of Education (“DOE”) failed to provide with a Free Appropriate Public Education (“FAPE”) for the 2019-2020 school years. is an and classified as a student with Autism. The last agreed upon IEP of March 6, 2018 in order to address the child’s needs recommended a 6:1:1 in a school with related services as follows: SLT 4x30x1; OT 3x30x1;

PT 3 x 30 x 1; Parent Counseling and training once per month for 1 hour and a speech generative device for 5 hours per day.

PARENT’S EVIDENCE

Parent Title Date Pages Date Admitted I.D.

A Due Process Complaint 7/17/19 9pp.

B Ten Day Notice 6/24/19 8pp.

C /26/19 10pp.

D ABA Report 7/12/17 13pp.

E Medical Letter 5/17/17 2pp.

F Academic Annual 8/5/19 7pp.

Review Notes

G Academic Annual 7/10/19 4pp.

Review Report

H Occupational Therapy 7/10/19 4pp.

Annual Review

I Speech/Language 7/10/19 4pp.

Therapy Annual Review

J Physical Therapy 7/10/19 4pp.

Annual Review

K Behavior Intervention 5/16/19 7pp.

Plan

L Functional Behavioral 5/15/19 5pp.

Assessment

M Final Progress Report 6/2019 19pp.

N Marking Period 2 1/2019 23pp.

Progress Report

O Psychological Update 7/22/19 2pp.

P Placement Services 11/25/19 2pp.

Progress Report

Q 2019-2020 Enrollment 5/4/19 2pp.

Contract

R 2019-2020 Tuition 10/25/19 1pp.

Affidavit

S 2019-2020 Summer Summer 1pp.

Schedule 2019

T 2019-2020 Summer Undated 3pp.

Attendance

U 2019-2020 Attendance Undated 4pp.

V Parent Proof of Payment 6/10/19 1pp.

W 2019-2020 Schedule Undated 1pp.

X Parent Proof of Income (W2) 2019 1pp.

Y School Administrator Affidavit: 2/20/20 16pp.

Z Parent Affidavit: 2/21/20 6pp.

AA Parent Proof of Income: 2019 1pp.

DOE’S EVIDENCE

1. IEP 8/5/19 24 pp

2. CSE/MINUTES 8/5/19 2 PP

3. School Location Letter 8/7/19 2 pp

BACKGROUND

is old and diagnosed with Autism. She has an extensive medical history including Chronic Lung Disease and Gastro-Esophageal Reflux Disorder (“GERD”). Due to the severity of her medical needs, was hospitalized from birth until three and a half years of age. As an infant, she underwent a tracheotomy and several subsequent surgical procedures to reconstruct her larynx. She is globally developmentally delayed and struggles with cognition, social/emotional abilities, receptive and expressive language, fine motor skills, gross motor skills, attention/focus, sensory processing, feeding, and all other activities of daily living (“ADL”).

is nonverbal, unable to feed herself or toilet independently, and lacks safety awareness. She attended the preschool program at where she received inpatient medical treatment until she was three and a half years old. After she was discharged from the hospital, attended a full day pre-K program in a 6:1:3 class at (“ ”) for the duration of the 2015-2016 school year, where she received Applied Behavior Analysis (“ABA”) therapy. Despite the intensive supports offered at her preschool, showed clear signs of regression during her year at . She demonstrated regression in feeding, toileting, and responding to her name.

The CSE convened a Turning Five IEP meeting on April 4, 2016 at which time they reviewed progress reports and evaluations. Her classroom teacher recommended continued ABA programming, and noted regression in many ADL skills. A DOE Psychological update from February 2016 reported that, when left alone, “will spend her time engaging in repetitive and restrictive behaviors; she will tantrum when things don’t go her way,” and “will require very substantial support.” At the IEP meeting, the CSE team suggested a , 6:1:1 program for ; her Parents voiced their concerns for her safety and the lack of sufficient individual support in such a class. By the end of the IEP meeting, the district representative agreed with the Parents that required a non-public school placement to address her complex needs. The Parents left the IEP meeting with the understanding that the CSE agreed to defer her daughter’s case to the Central Based Support Team (“CBST”). The next day, the Parents received a call inviting them to another IEP meeting, on April 7, 2016. Upon arrival, the Parents were notified that the CSE was recommending a 6:1:1 class with related services of OT, PT, and SLT. The Parents were told that there was no longer a consensus about deferral to the CBST as was recommended on April 4, 2016.

On May 9, 2016, the Parent received a notice that was assigned to a DOE school, “ ,” located at . When the Parents visited the school in June of 2016, they observed that the school environment and facilities were wholly inappropriate for for many reasons, including, but not limited to, the school’s admission that it was unable to provide with ABA therapy. In the absence of an offer of a “FAPE” for the 2016-2017 school year, the Parents unilaterally placed at in September 2016.

An impartial hearing request was filed by the Parent on January 16, 2017 and Impartial Hearing Officer (“IHO”) was appointed. The case proceeded to hearing on April 6, 2017, May 31, 2017, and August 3, 2017. A final decision dated October 11, 2017 included an order that the DOE fund education at for the 2016-2017 school year.

On March 28, 2017, the CSE convened to develop a new IEP for , implementation April 7, 2017. The CSE recommended the same 12-month , 6:1:1 program that the Parents had previously challenged. Fearing that the DOE would be unable to meet significant special needs in the recommended program, the Parents re-enrolled at for the 2017-18 school year, commencing July 10, 2017 and timely submitted a Ten Day Notice of their intent to do so.

The DOE failed to respond to the Parent’s Ten Day Notice, and the parent submitted an impartial hearing request on November 2, 2017 (Case number ). IHO was appointed and the matter proceeded to a hearing on April 20, 2018. IHO issued a Findings of Fact and Decision on February 6, 2019 in which she determined that the DOE failed to offer a FAPE and ordered the DOE to fund education at for the 2017-2018 school year. The CSE convened on March 6, 2018 to develop a new IEP for for the 2018-2019 school year. Despite the fact that was due to have an annual review in March of 2019, the CSE failed to convene until August 5, 2019. The Parent did not receive have timely notice to visit the recommended placement until after the 2019-2020 school year began.

DEPARTMENT’S CASE.

The Department rested and did not call any witnesses and it is relying upon its documentary evidence.

PARENT’S POSITION:

Parent’s Counsel maintained that the child hereinafter referred to as “ ” was a 12-month student for the 2019- 2020 school year. Although she was due to have an annual review in March of 2019, the CSE failed to convene until August 5, 2019.

The parent’s counsel further stated that her clients did not receive a school location letter, until several weeks after the IEP meeting. She was unable to visit the recommended placement as the school was closed for the

Summer. In September, on either the second or the third day of school, she was able to gain access to the placement and believed it was inappropriate for her daughter. The CSE offered the same placement as recommended to her daughter in 2016-2017. The IEP program was a , 6:1:1 program with a

Paraprofessional, which the parent believed, was inappropriate due to her daughter’s complex needs.

The parents did not have a program or placement at the outset of the 12 month 2019-2020 school year. The parent unilaterally placed her daughter at the , which she had attended for the previous three years of school. believed the program was appropriate due to the individualization of the program and the progress that her daughter had made.

Lastly, the parent’s counsel stated that the due process complaint is amended wherein its request for after-school ABA hours are withdrawn. PARENT’S CASE:

Affidavits of the Parent and were admitted into evidence in lieu of direct testimony; the witnesses were available for cross-examination.

Ms. stated that she is the Executive Director of the Educational Program at the ; she previously served as the school Principal. Ms. met in the summer of 2016 when she visited the for screening and informal assessments. The witness stated that she was involved in the screening process but did not actually provide the “informal assessment”. The assessment took place in the Occupational Therapy room in order to provide with proprioceptive input, as she seemed anxious and moving around a lot. Afterwards, the child visited a classroom where the teacher was working with the students in order to see if she would be responsive to the methodology.

The witness testified that entered the Base Program at “ ” and that she continued in the program. She described as a very involved child with cognitive impairment, feeding difficulties and at times self-injurious. Ms. stated that made “a lot of progress”; when she first came to , it was difficult for her to sit in a chair for an extended period. She required and was provided with an extensive ABA program; a functional behavioral assessment (FBA) and behavior intervention plan (BIP) was created to help her adjust.

The witness stated that remained in the base program as she continued to require a very intensive ABA program. required discreet trial teaching and a 1:1 setting, as she was unable to safely navigate her surroundings. Although made progress, her cognitive level will not change and she will always require an intensive type of program throughout her schooling. Although her needs are significant, the witness stated that would continue to make progress.

Miss stated that oversees the implementation of the BIP; she also reviews the child’s work with the classroom staff, attends key meetings to insure that the program is being implemented for is a a New York State Licensed Speech Pathologist and provides services to ; “ ” is her

Occupational Therapist; the Physical Therapist is and is her assistant.

Miss stated that teacher has a Master’s Degree for Students With Disabilities and is in the process of completing certification from New York State. Upon further cross-examination, Miss stated that if the child exhibits self-injurious behavior and or becomes dysregulated; the staff is trained in Crisis Violence Prevention & Intervention (CPI). If physical intervention is required to prevent her from injuring herself; someone would respond quickly to place a cushion or pillow in order to prevent injury.

Miss stated that is working on letter identification, writing and identifying her name. She is working on number identification and is able to read a few words. She believed that has made progress every year that she has attended as documented in discreet trial data – ABA. Miss stated that there are six students including in her class and that they are all within a 36 month age range.

The next witness to testify was the parent, hereinafter referred to as The parent testified that when her daughter began attending The in 2016, she had numerous disabilities including chronic lung disease, gastroesophageal reflux, and asthma.

stated that although the child’s annual review is due in March 2019; she called and left several messages, as she did not receive notice of an IEP meeting. She testified that she received a phone call at approximately

9:00 am or 10 a.m. and received an e-mail the day before the scheduled meeting. However, she attended the IEP meeting on August 5, 2019 telephonically. The parent testified that she that received a school location letter after the IEP meeting; however, the school closed for the summer. She visited the school in September shortly after the school year began. Concededly, she signed the contract for her daughter to attend prior to the school year beginning. The witness believed that if the DOE had offered an appropriate program for her child that the contract with provided an “opt out clause”.

The parent stated that the recommended placement was the same program that her daughter went to in 2016.

The school did not have an ABA Program and/or summer program. Additionally, her daughter had allergies, feeding problems and required a quiet place to read and the public school does not offer same. Lastly, stated that when she visited the public school in September of 2019; she met with either the Assistant Principal or

Principal. She reiterated that the school did not have an ABA Program and/or sensory gym and that therapy was provided in a hallway.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits. ” (M.H. v.

N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir.

2007) (internal citations omitted)).

School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009))).

It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO 08-052; SRO 08-060 (citations omitted).

Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D.

v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of reh'g, 480 F.3d

138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))

A parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. Id. Further, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

The DOE has the burden of proof regarding equities. Application of a Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c).

The DOE failed to provide a prior written notice which explains the actions taken by the CSE and the rationale for rejecting the recommendations by individuals personally familiar with ; including her Parent and teacher. The DOE did not discuss placement at CSE meeting despite the fact that she clearly requires a small specialized placement that minimizes overwhelming stimuli.

The Parents received a school location letter dated August 7, 209, recommending that for for the 2018-2019 school year. The Parent visited the placement in September 2019 and had a school tour. The Parent observed that the school environment and facilities were wholly inappropriate for for many reasons, including, but not limited to, the school’s admission that it was unable to provide with any ABA therapy. In addition, the Parents were informed that there was no gym or school yard on the premises, and there were no “quiet” spaces available for to eat. The parent was informed that some of the related services were provided in the hallways rather than in therapy rooms, depending on the availability of the rooms.

The parent was very concerned about her daughter being able to benefit from related services in the hallway due to her high level of distractibility and her need for sensory equipment. Finally, the parent was informed that the school did not have a sensory gym or even have access to sensory equipment to meet significant sensory processing needs. As such, the parent has unilaterally placed at for the 2019-2020 school year. As indicated above, the DOE failed to convene to timely develop a new IEP for for the 2019-2020 school year and failed to offer a placement. As such, the DOE has denied a FAPE for the 2019-2020 school year.

As stated above, he parents have re-enrolled at for the 12 month 2019-2020 school year, commencing on July 10, 2019. provides programming designed to address each student’s unique needs with intensive, individually designed behavioral services and multimodal academic instruction at the student’s level of capability. The BASE program in which is enrolled utilizes ABA discrete trial instruction and has a full time Board Certified Behavior Analyst on staff to assist with the development and monitoring student’s discrete trial ABA programs and behavior intervention plans. has made incremental progress in academics, adaptive and language/communication skills while attending and while receiving after school ABA hours during the 2016-2017, 2017-2018 and 2018-2019 school years.

I find that at all relevant times, the DOE failed to address the Parents’ concerns and provide with an appropriate educational program to enable her to make meaningful academic progress. All reports indicate that deficiencies and struggles are significant and remain constant. Nonetheless, the DOE failed to convene the CSE to develop an IEP for

After considering all the evidence, I find that the above-noted failings and violations deprived of a FAPE under the IDEA for the 2019-2020 school year; that the above-noted violations significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and resulted in a deprivation of educational benefits.

I order the DOE to make direct payment to for placement for the 20192020 school year within 30 days of receipt on an invoice in a from satisfactory to the DOE.

Dated: June 10, 2020

______________________________

Gary D. Peters

Impartial Hearing Officer

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education

Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.