New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 185442

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: August 8, 2019

November 6, 2019

December 6, 2019

January 17, 2020

February 14, 2020

April 1, 2020

May 8, 2020

June 12, 2020

July 15, 2020

August 18, 2020

September 30, 2020

October 8, 2020

Actual Record Closed Date: December 17, 2020

Hearing Officer: Judith Schneider, Esq.

On August 8, 2019, November 6, 2019, December 6, 2019, January 17, 2020, February 14, 2020, April 1, 2020, May 8, 2020, June 12, 2020, July 15, 2020, August 18, 2020, September 30, 2020, and October 8, 2020, I conducted an Impartial Hearing at the New York City Department of Education (““DOE” or “the district’) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student’).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated July 19, 2019. (Ex. A) I was appointed Impartial Hearing Officer on July 25, 2019. The parent requested an order concerning the student’s entitlements during the pendency of this matter and by order dated August 12, 2019, the following was ordered: Payment for program (12 month program). (Ex. //)

At a prescheduled prehearing conference on September 13, 2019, I was informed that the district had approved this matter for settlement negotiations and both parties wanted an opportunity to engage in settlement negotiations. (Ex. /) At numerous hearings thereafter that was repeated. Eventually I was informed that an evidentiary hearing was required and that was conducted.

The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.

The current compliance date is December 29, 2020. The record closed on December 17, 2020 when I was informed that the district waived submission of a closing statement. Positions of the Parties

The parent asserts, among other things, that although a CSE review was conducted on June 3, 2019, the district failed to provide an IEP or placement recommendation prior to the commencement of the 2019-2020 SY (ESY program) and therefore failed to provide a FAPE. The parent enrolled the student in ( “the School’) which is asserted to have been appropriate and seeks DOE funding through direct payment, based on parental inability to pay the fees and seek reimbursement. The parent claims that equitable considerations support DOE funding. Further, the parent asserts that the student required at home services during the 2019-2020 SY in addition to the program provided by the School and seeks compensatory services for the district’s failure to provide those services. The parent also claims entitlement to special education transportation. However, the parent acknowledged that transportation was provided and the parent is not seeking that an order provide that.^[1] '(Exs A,. I, T8I)

The district did not concede that it had failed to provide a FAPE but presented no witnesses in this matter. It challenged the appropriateness of the unilateral placement asserted that the request for ancillary services demonstrated that the School was not appropriate. The district did not assert a position with regard to the equities in this matter. (T85-87) Subsequent to the hearing the district waived submission of a closing statement.

Cases Presented

Both parties submitted documents which were admitted into evidence. (A list of documents in evidence is appended.) The district presented no witnesses. The parent presented the testimony of: , Executive Director-Educational Programs for the School and former principal of the school the student attended (“the ED”); the parent.

Findings of Fact and Conclusions of Law

A) Factual Findings

Credible evidence in this matter shows that The student was in the 9" grade in the 2019-2020 SY and had attended the School since September 2016. (Ex. U) Prior to the June 3, 2019 IEP he had been diagnosed with Autism, ADHD, Mixed Expressive/Receptive Language Disorder, Oppositional Defiant Disorder and a Learning Disorder. (Exs. B, U) At the June 3, 2019 review, the parent asserted that the student required after-school services including intensive reading support in view of decoding, phonics and sight words difficulties and those services were not provided. (T116, Ex. U) The CSE informed the parent that a program rejected in prior years, which specified the classification of Autism and provided a 12 month 8:1:1 program with OT, SLT, counseling and parent training and counseling would be recommended, and the classification of Autism. (Exs. T, 1) The IEP and a school placement recommendation was not provided prior to the commencement of the 2019-2020 SY. (T. 116, Ex. T)

On June 7, 2019, the parent executed an enrollment contract with the School for a 10 month program ($75,000) and an additional 6 week summer program ($12,000) for the 2019-2020 SY. (Ex. E)

By letter dated July 29, 2019, the parent requested various IEEs. (Ex. C) A Neuropsychological Evaluation funded by the DOE was thereafter provided.^[2] * The evaluator diagnosed Autism Spectrum Disorder, ADHD, predominantly inattentive (Moderate) and Specific Learning Disorders in reading, written expression and math. She recommended, among other things, a small structured supportive highly specialized language enriched ESY program with 1:1 instruction and OT, SLT and counseling, robust social skills support Her recommendations included transportation with limited time travel (less than 60 minutes) in an air-conditioned vehicle. The evaluator noted the student’s lack of progress since 2012 and recommended additional daily programming to target certain reading, math and executive functioning skills. (Exs. R, U, T118-119) The parent commenced providing tutoring services for a short period during February-March at the rate of $150 per 2 hour session. (T124-125, Ex. U) * Although additional IEEs were specified in the hearing request and in the July 29, 2019 letter, those relief requests were withdrawn at the hearing. (T84-84, Exs. A, ///)

The student received remote learning from the School after the COVID 19 closure. (Ex. U) After the closure the School also funded an online program with which the parent could work with the student at home which had been recommended by the student’s after school tutor and School staff made recommendations as to the what should be worked on, graded the results and provided assistance. (T127-132)

The School is non public school for students on the autism spectrum ages 4-24 which had some 189 students during the 2019-2020 school year. It is not approved by the State Education Department as a facility with which a district may contract for the delivery of special education services The student is in the School’s ( ) program which combines academics with social thinking and vocational opportunities. The approach is individualized but follows state guidelines and the student followed the same curriculum, scope and sequence. The School uses Collaborative Problem Solving to address behavioral challenges and uses ABA methodologies as well as Sensory Integration and provides related services (OT, SLT, PT and counseling.) Professional development is provided for staff and staff work collaboratively and meet regularly in teams to discuss student progress and needs. .The student was provided with modified academic programming, integrated academic services, related services from appropriately licensed providers consistent with CSE recommendations and behavioral and vocational services including community work/internship activities with a job coach. Sensory breaks were provided and the School includes a sensory gym. The student was in classes of no more than 6 with a head teacher and a teaching assistant and his fellow students had similar profiles. In addition to his core academic program which included ELA, the student received a specialized reading program ( ) which as delivered by the ELA teacher, trained in that technique and a certified special educator, 3 times a week and which was utilized by the speech therapist. The student progressed about 6 months during the school year. The student’s math instructor is a certified special educator, the curriculum was modified and the student passed with an 82GPA. The student’s remote learning plan included all core academic subjects and special subject and mandated related services (all delivered 1:1 due to HIPPA requirements.) A variety of technologies were utilized and supplemental work was assigned. Although the student initially had difficulties he adjusted and showed progress. During the 2019-2020 SY the student progressed academically, socially and behaviorally. (T90-95, 97-100. 103-113, Exs., S,

B) Analysis °

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong | and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2" 795 at 806, n.7 (N.D. N.Y. 1998)

Prong 1

In this matter the district presented no witnesses. The district submitted two documents, an IEP and a school location letter/PWN. (Exs. 1, 2) An IEP does not on its own without testimony to explain its appropriateness establish that a FAPE has been provided. See e.g. RE. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Further, the parent claimed and the district did not contest that the neither was received prior to the commencement of the 2019-2020 SY (12 month program.) I note that the school location letter is dated July 12, 2019 and therefore supports the parent’s claim. (Ex. 2)

Accordingly, I find that the district has failed to establish that it provided a FAPE for the 2019-2020 SY.

? Record references not specified below are stated above.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2TM Cir. 2006). ‘It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement...is ‘reasonably calculated to enable the child to receive educational benefits. ’ [internal citations omitted] ...”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Jd. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

The parent presented substantial testimony and documentary evidence in support of the contention that the unilaterally selected program is appropriate and that the student has made meaningful progress in the program. In addition the testimony the parent’s witnesses (which was credible and uncontroverted) and the parent’s documentary evidence established that the placement was appropriate and provided the student with educational instruction that as specifically designed to meet the student’s unique special education needs, supported by such services that were necessary to permit the student to benefit from instruction. I conclude that the evidence shows that that the program provided by the School was reasonably calculated to enable the student to make meaningful progress in light of his unique circumstances. I find that the parent has met her burden with regard to DOE funding for the School for a 12 month program.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A, ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming...that the parents never intended to keep [the student] in public school.”)

The parent participated in the review and provided evaluations and timely informed the CSE of her concerns. (Exs. S, U) I find no basis for denial or limitation of DOE funding based upon equitable concerns. Further, the parent credibly claimed inability to fund the placement and seek reimbursement. (Ex. U)

C) After School Tutoring Services (Extended Day Services) The parent also asserts that the student’s program should have included extended day services. Afterschool services were not provided by the parent during the 2019-2020 SY but for a very limited period for which the parent is not seeking reimbursement. Rather the parent requests a determination that extended day services were required and that the parent is entitled to, in effect, compensatory services for the CSE’s failure to provide them.

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “...[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

I note, however, that the IDEA, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The same considerations apply when considering a parentally requested program/service. Carter. The evidence in this matter shows that meaningful progress could be made in a school based program, and I have concluded that it was made in the parentally selected unilateral placement for which DOE funding is provided. Although the evidence indicates that the student could make more progress if afterschool services were provided that does not support entitlement to those additional services. Further, I note the absence of specific evidence concerning what program would be provided, how it would benefit the student in view of his unique needs and the extent to which it is consistent with the IEE recommendations. In the foregoing circumstances, the parent’s request for extended day services is denied.

ORDER

The DOE shall immediately directly pay the School $87,000 for tuition for the 12 month program provided to the student for the 2019-2020 SY.

Dated: December 29, 2020

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

1. District IEP 22 pgs. 6/3/19 DOE

2. T/A2/19 School location letter/Prior Written Notice 6 pgs. Parent DOE

A. Due Process Complaint (pendency), 7/19/2019 4pgs. B FOFD (pendency), 12/3/2013, 29 pgs.

C. Parent's IEE Request, 7/29/2019, 3 pgs.

D. SCHOOL Program Description, Undated, 2 pgs.

E. SCHOOL Enrollment Contract, 19-20 SY, 2 pgs.

F. SCHOOL Summer Schedule, 19-20 SY, 1 pg.

G. SCHOOL 10-month Schedule, 19-20 SY 1 pg.

H. SCHOOL Academic Annual Review, 19-20 SY 5 pgs. — SCHOOL Speech-Language Annual Review 19-20, SY 3 pgs. SCHOOL Occupational Therapy Annual Review 19-20 SY 4 gs. cHnwmeovozrAs SCHOOL Behavioral Intervention Plan 19-20 SY 6 pgs. SCHOOL Functional Behavioral Assessment 19-20 SY 5 pgs. SCHOOL Social-Emotional Annual Review 19-20 SY 3 pgs. SCHOOL Transition Report 19-20 SY 2 pgs. SCHOOL Final Report Card 19-20 SY 3 pgs. SCHOOL Distance Learning Plan 19-20 SY 6 pgs. Student Distance Learning Supplemental Info 19-20 SY 2 pgs. Neuropsychological Evaluation April 2020 24 pgs. 10-day Notice 6/25/2019 2 pgs. (SCHOOL Staff) Affidavit 9/29/2020 14 pgs. Parent Affidavit 9/29/2020 5 pgs. Impartial Hearing Officer vi Prehearing Conference Summary I Pendency Order TT Parent Closing Memorandum

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Footnotes

[1] The IEE recommendation of limited time travel (60 minutes) in an airconditioned vehicle were not asserted/discussed at the hearing.

[2] Although additional IEEs were specified in the hearing request and in the July 29, 2019 letter, those relief requests were withdrawn at the hearing. (T84-84, Exs. A, III)