New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Id:

District Case Number: 185386

Student’s Name:

Date of Birth:

Hearing Requested By: Parents

Dates of Hearing: April 22, 2020

August 13, 2020

September 15, 2020

September 23, 2020

October 9, 2020

October 16, 2020

Actual Record Closed Date: October 27, 2020

Hearing Officer: Jeffrey Silverson, Esq.

Case ld: District

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 22, 2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 13, 2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15,

2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23,

2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

, PARENT (VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 9, 2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

, PARENT (VIA TELEPHONE)

(VIA TELEPHONE)

(VIA TELEPHONE)

(VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 16, 2020

For the Student:

, ESQ., ATTORNEY (VIA TELEPHONE)

For the District:

District Representative (VIA TELEPHONE)

PROCEDURAL HISTORY

On July 19, 2019, a due process complaint (“DPC”)'^[1] dated that same day was filed on behalf of (“Student” or“ .”) against the New York City Department of Education (“DoE”) alleging the denial of a free and appropriate public education (“FAPE”), and seeking reimbursement for the cost of .’s special education program and services for the entirety of the 2017-2018 school year ( “SY”), which — according to the DPC - consisted of the following:

1. 10 hours per week of direct, 1:1 special education teacher support;

2. Speech-Language Therapy; 4x30, 1:1 and 1x30, 3:1; and

3. Occupational Therapy, 2x45, 1:1.7 Pursuant to the DPC, the parents are not seeking reimbursement for the at issue SY’s cost of tuition. Exhibit A-1-^[2]

Three days later, on July 22, 2019, I was appointed as the Impartial Hearing Officer regarding the matter. The parents were represented by , Esq., from the , and the Department of Education was represented by on behalf of District . On July 24, 2019, the remaining period of the mandatory resolution period (8 NYCRR §200.5(j)(2)) was waived by the parties, and on August 1, 2019, I held a telephonic pre-hearing conference with them. Subsequently, after short hearings were held that led to a discussion of the case status, a substantive hearing was held on September 23, 2020 pursuant to the Individuals with Disabilities Education Improvement Act (1.D.E.1.A.), and relevant NYS Regulations. Eventually, pursuant mainly to joint requests from the parties, nine (9) extensions to the case timeline were issued in accordance with the Commissioners Regulations at 8 N.Y.C.R.R. §200.5(j)(5)(ii) and 34 C.F.R.§300.515(c). Most of them were granted for sixty-day periods. 8 NYCRR 200.5. The current compliance date is November 30, 2020.

After the parties chose not to submit written closing statements, the record was closed (the ARCD) on October 27, 2020, upon receipt of the final hearing transcript?. Appended to my decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).

Il. PRELIMINARY FACTUAL BACKGROUND

is currently ( ) years old. Within a neuropsychological evaluation that was administered during the months of January and February of 2017, which was taken some 6 months prior to the IEP meeting for the 2017-2018 SY (Ex. A-2), he scored in the Low Average of Verbal Comprehension and processing speed with higher scores obtained in fluid reasoning, working memory and general ability. Exhibit C-10. The Report summarized that “as tasks became more challenging E. showed a tendency to become inattentive and perseverate. His attention and language weaknesses significantly impede his ability to learn novel verbal information.” Exhibit C-7 Significantly, the Report concluded that due to a number of nonverbal deficits it is highly recommended that “he repeat another year of pre-K to develop better self-regulation and requisite skills required for a kindergarten classroom.” [Further, ] requires a minimum of 10 hours of direct, 1:1 Special Education Teacher Support Services (SETSS) when he transitions to school in the fall of 2017.” Exhibit C-8 Finally, a District IEP classified him with a Speech or Language Impairment. Exhibit 1-1

lll. POSITIONS OF THE PARTIES

Given an opportunity to advance their respective positions through opening and closing statements, the following transpired: The DoE

The District stated that it did not dispute the specific services requested by the Parents, but did dispute what it described as an ‘inflated” rate charged for them for the 2017-2018 SY at issue, and also questioned whether they were actually administered in full by the respective providers. See, e.g. Tr. 33-35 (opening statement)

3 Via electronic copy. The Parents

Within an Affidavit offered by the Parent (Exhibit O), she swore that equitable services pursuant to an IESP were denied by the District, and, in effect, replaced by a CSE meeting. As the District later conceded at hearing, an IEP developed at that meeting was not appropriate. The parents were thus left to locate licensed, qualified providers to give a necessary Special Education Service program, and two related services, all of which benefitted him, and none of which overcharged the DoE.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard

While the case before me deals mostly with an examination regarding the validity of three private provider rates, I will begin with an overview of pertinent law regarding a District's initial obligation to provide FAPE. The underlying intention of the IDEIA (20 U.S.C. §§ 1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what was meant by a FAPE held that the IDEA does not require states to “maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children.” It does set a floor, however, and holds that a State furnishes a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Board of Education v. Rowley 458 US 176, 203 [1982].

Three years ago, in Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 137 S. Ct. 988, 998-1001 (2017) - the Supreme Court - while resolving a split within the Circuit Courts - in a unanimous decision revisited and reshaped the early substantive standard it had enunciated within Rowley. Without reversing its initial delineation of what constitutes an appropriate offering by a school district to a child within a general education environment receiving special education services, and without clarifying what constitutes a “meaningful benefit’, it addressed the appropriate treatment of a child within a special education setting, and added that while an IEP need not provide a maximal benefit to the child, it must offer more than a de minimus one. Specifically: "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. id., at 999. In other words, the Court emphasized progress for the individual child given his or her unique needs. “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” (citations omitted) /d.

Over three decades earlier, in the seminal case of Burlington, the Supreme Court addressed potential tuition reimbursement to parents, by holding that in an appropriate situation it was allowable under the Act. To make such a determination, it formulated a three-part examination of what is required to be shown. The three parts, or “Prongs” are, whether: (1) The placement offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent's claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Should a parent fail in either of the initial two Prongs, the inquiry terminates at that point and reimbursement is denied. /d. The Supreme Court later put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 59-62 [2005]. However, the New York State Legislature subsequently reversed that obligation, and placed the burden of production and persuasion upon the school district instead, except as regards Prong 2, where the parent is tasked with the burden. (See Educ. Law §4401[1][c], as amended by Ch. 583 of the Laws of 2007)

Prong 1-The DoE Failed to Offer the Student an Appropriate Education The threshold issue in this matter, and indeed in all IDEA controversies — which essentially involve a determination of liability — is whether the DoE offered the respective student an appropriate IEP and program for the school year(s) at issue. For starters, when a student who resides in New York State is eligible for special education services and attends a nonpublic school located within the State, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) upon the written request of the parent under what is commonly referred to as the State's dual enrollment statute (See Educ. Law §3602c).4 Regarding the instant matter, within a letter dated July 10, 2017, the Student’s mother did indeed make such a request. See Exhibits M-1 and O-5. To qualify fora service plan, a child must: (1) Be placed in a private school by his parents, not as an out-of-district placement; (2) Have one of the 13 disabilities covered under IDEA;, and (3) Need special education in order to successfully benefit from and access a general education curriculum. The parents claim that met all three of those requirements. However, as detailed by the student's mother within uncontested Exhibit O, that request was denied by the CSE. Instead, CSE advised the parent that the only way to obtain special education services for her son was to request an IEP. See specifically, Exhibit O-5. Furthermore, as noted above, the District position in this matter does not assert that it has met its State burden to provide an appropriate placement whether via the route of a called-for IESP, or even within the contour of an IEP, which in this instance would have been an appropriate program and related services, instead of a kindergarten Integrated Co-Teaching (“ICT”) program. See Ex. O-6 (offered at 8/22/17 CSE meeting) Thus, in sum, Parents allege, and the DoE concedes that the District's underlying program recommendation for the Student for the 2017-2018 SY — of a 12-month various Integrated Co-Teaching Services combined with related services were not appropriate for him. See Exhibit 1-16-17. Furthermore, the parents continue, the District failed to even follow up on its inappropriate program by issuing a placement notice for their son for the aforementioned SY. (See DPC Pg. 3, which has not been contested by the DOE.)

Subsequently, within a letter dated August 22, 2017, which was entitled TEN DAY NOTICE, the parents put the District on written notice regarding their intention to place him within a special education teacher support program - which was not recommended in the IEP for the SY at issue. They also put the District on notice that their son’s program would also include related services of Speech-Language Therapy, Occupational Therapy, and Counseling at the same frequency and amount as called for within the District IEP.

At hearing, the DoE representative did not call any witnesses. Instead, she noted that she was not going to cross-examine the Student’s mother or the neuropsychologist regarding their respective affidavits’, which had been entered into evidence by me. Thus, due to the District not fulfilling its burden to go forward and present a case, and instead conceding that it had not offered the Student an appropriate placement, I find that it has failed to provide a FAPE to for the 2017-2018 school year. So, I will now turn to the Parents’ burden — as outlined in Burlington, supra - to demonstrate that they had filled the void by providing for their son what the DoE had not.

Prong 2-The Parent Placement

In addressing the burden that a Parent must meet to satisfy Prong 2 of Burlington, the Second Circuit disseminates a detailed outline to help decide it.

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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, quoting Frank G., 459 F.3d at 364-65). Furthermore, a unilateral placement at a private school need not

° Neuropsychologist "$ report recommended that remain in pre-k for an additional year in order to develop the skills needed to meet the demands of a kindergarten class. She further recommended that he receive 1:1 special education teacher support and related services, and be placed in a small, supportive classroom setting. See Exhibits C-8 and O-4 be approved nor employ certified special education teachers. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 11 [1993]. Though, I note that while is not state-approved (Tr. 74), the Student’s Focus teacher, who she works one-on-one with her, is a licensed speech and language therapist. Tr. 39

Continuing with the Parent’s burden of proof, the measure of whether a unilateral placement is appropriate under the IDEA is similar but not identical to the standards applied to the DoE’s proposed placement. See A.D v. N.Y. City Dep’t of Educ., 690 F. Supp. 2d 193 (S.D.N.Y. 2010). The issue in sum is whether at the time of placement in the private school, the placement was reasonably calculated for the child to receive individualized educational benefit. Frank G., supra. Although the restrictiveness of the parental placement may be considered as a factor in determining whether the parents are entitled to an award of tuition reimbursement, “parents are not as rigorously held to the standard of placement in the LRE [least restrictive environment] as are school districts.” SRO No. 19-065 at 19 (citations omitted).

In the matter at hand, the Parents proceeded to go forward, seeking to persuade this IHO that beyond being appropriate for him, the program and related services provided were also appropriately priced. Included in their presentation were three witnesses® each of whom| find to have given credible and relevant testimony. Significantly, the DoE — through brief cross-examination - did not uncover any underlying weakness in their testimony. Consequently, I find the inflated rate charge to be no more than conclusory with regard to all of them, and without evidentiary value.

I will now briefly summarize their three respective presentations regarding the rates that they charged, in tandem with documentary evidence.

1) Ms. was the director of the private services program. She based the rate for it upon what she testified was the Early Intervention program, for which both she, New York City and New York State provide a reimbursement of $115. See Exhibit D

2) After providing a speech-language assessment to guide her work with ; Ms. then gave him 30-minute sessions at $90 per session, which was greater

° All of the witnesses testified over the telephone. than the District rate because without an IEP she was tasked with the additional work of doing her own assessment and establishing goals for him. She also had to provide additional outside paperwork. See Exhibit F

3) , who employed ’$ occupational therapist (“OT”)’, established the rate charged for it. She testified that the “ordinary and customary” rate for OT in a private setting was $40 per 15-minute increments. Thus, for each of the Student’s forty-five minute sessions, the bill came to $120. See Exhibits H and |

As conceded by the District, the program and services provided to were appropriate. Thus, my examination boils down to whether the rates charged by the three providers were set at an appropriate market value for the SY at issue. Significantly, the District failed to offer any written or testimonial evidence of its own to counter the rates charged; nor, did its cross examination of the three parent witnesses serve to buttress their conclusory allegations.

Therefore, based upon what| find to be the credible testimony given by the three providers and through the affidavit of the Student’s mother, and in the absence of any contrary evidence submitted by the DoE at hearing, I find that the record strongly supports the appropriateness of the overall program for 2017-2018 given to , in that it was specially designed with individualized instruction to meet his unique academic and social-emotional needs, and did not do so at an inflated rate. See Frank G., supra

Prong 3 - The Equities

Having found for the parents on both Prongs 1 and 2, I now turn to Prong 3, where | reach a similar finding. With respect to equitable considerations, the IDEIA allows that tuition reimbursement may be reduced or denied when a parent fails to raise the appropriateness of an IEP in a timely manner and inform the school district of their intent to unilaterally place the child in a private school, fails to make their child available for evaluation by the school district, or upon a judicial finding of unreasonableness with respect to the actions taken by the Parent. 20 U.S.C.

7 Who was certified as an OT in NYS. Tr. 75 §1412[a][10][C]iii]; M.C. v. Voluntown Bd. Of Educ. 226 F3d 60, 68 (2d Cir.2000) See, Burlington, supra. That is not the case here. For regarding the proper administration of educational responsibility, the evidence at hearing elicited the opposite - a plethora of DoE deficiencies, which I have noted above, such as not providing the student with an appropriate program and related services, nor contesting the appropriateness of the underlying services contracted and paid for by the parents.^[8] On the other side of the ledger, the parents gave the District 10-Day notice of its plans to cure its above-noted deficiency, for which a cure was not offered. Also, while not necessary for a determination of the appropriateness of privately obtained special education private services for the purposes of reimbursement, the record also reflects that the Student benefitted from them. See Exhibit J; Frank G. and Dianne G. v. Bd. Of Educ. Of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006). Finally, as decided above, I find the rates charged during the 2017-18 school year to have been appropriate. Accordingly, I find that on equitable grounds they should be paid for by the DOE. See 20 U.S.C. § 1415(i)(2)(C) (iii); 34 C.F.R. § 300.516(c)(3), providing that under the 1.D.E.1.A. courts (or hearing officers) “shall grant the relief that the court determines to be appropriate.” See also, Schoo! Committee of Burlington, supra.

Other Issues

I have considered all other requests and claims by the parties and find them to be without merit or insufficiently asserted. See 7.B. v. Haverstraw-Stony Point Cent. Schl. Dist., 2013 WL 118479 (S.D.N.Y. 2013) citing Singleton v. City of Newburgh, 1 F.Supp.2d 306, 312 (S.D.N.Y. 1998), claim abandoned where alleged in the complaint but not raised elsewhere in the record.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT

IS HEREBY ORDERED THAT:

Within thirty (30) days of its receipt of this Order, and upon proper proof of

O-7 actual service by each provider, the New York City Department of Education is directed to reimburse the parents for the cost of S$ program for the entirety of the 2017-2018 school year up to and including the following hours’:

1. 10 hours per week of direct, 1:1 special education teacher support;

2. Speech-Language Therapy; 4x30, 1:1 and 1x30, 3:1; and

3. Occupational Therapy, 2x45, 1:1. Payment shall be made upon appropriate proof of the provision of services and attendance by the student. Proof of the provision of services and attendance for the above is indicated by but not limited to copies of invoices, tuition services contracts, attendance or enrollment documents, money orders, credit card statements, copies of cancelled checks, bank statements, and transportation logs. All questions regarding payment/reimbursement procedures should be directed to the Impartial Hearing Order Implementation Unit (718) 935-3213.

Dated: October 27, 2020 isi Jeffrey Silverson

JEFFREY SILVERSON, ESQ.

Impartial Hearing Officer

* As called for in the DPC. Exhibit A-4

PLEASE TAKE NOTICE

Within 40 days of the date of the decision, the parent and/or the school district has a right to appeal the decision to an SRO under Education Law Section 4404 and the IDEA. If either party plans to appeal the decision, a notice of intention to seek review must be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party's request for review must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party must file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the OSR within two days after service of the request for review is complete. The rules of procedure for appeals before a SRO 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 the Office of State Review website (http://www.sro.nysed.gov). Case ld: District

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT

Exhibits Description Date Page(s) 1 Individualized Education Program 8/22/17 18 2 Attendance Page 8/22/17

PARENTS

Exhibits Description Date Page(s)

A. Impartial Hearing Request 7/19/2019

B|3pwoMSa©N2POB

B. Ten Day Notice 8/22/2017

C. Neuropsychological Evaluation 2/17/2017 OO

D. Rate Letter: Special Education Teacher 1/17/2018

E. Proof of Certification: Special Ed Teacher 9/16/2020

F. Rate Letter: Speech Pathologist 1/9/2018

G. Proof of Certification: Speech Pathologist 9/16/2020

H. Rate Letter: Occupational Therapist 9/28/2017

I. Proof of Certification: Occup. 9/16/2020

J. SEIT Progress Report 1/3/2018 K Speech Language Progress Report 5/14/2018

L. Occupational Therapy Progress Report 3/15/2018

M. Parent Referral Letter 7/10/2017

N. Second Parent Referral Letter 7/19/2017

O. Affidavit of 9/21/2020 P Affidavit of 9/22/2020

IMPARTIAL HEARING OFFICER

| Order extending the Compliance Date 05/07/2020 ll | Order extending the Compliance Date 05/07/2020

Order extending the Compliance Date 05/07/2020

—=_

Order extending the Compliance Date 08/13/2020

Order extending the Compliance Date 08/13/2020

Vi Order extending the Compliance Date 09/23/2020

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Footnotes

[1] Pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C.§1415(f).

[2] New York State has taken the option offered by the IDEA, which is to define special education to include related services. See N.Y. EDUC. LAW Art. § 4401.) See 34 C.F.R. § 300.39(a)(2)(i).

[4] The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law §§ 3602-c; 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602c[2][b][1]). State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.”

[8] 8 “I have paid in full for the SEIT, speech and OT provided to for the 2017-2018 school year.” See exhibit