New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 185491

NYS Case Identifier Number: N/A

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: 9/13/19

10/10/19

12/10/19

1/14/20

2/14/20

3/24/20

5/20/20

6/16/20

7/16/20

Record close: 8-31-20

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 13, 2019

Advocate — Student

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 10, 2019

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 10, 2019

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 14, 2020

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2020

Advocate (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 24, 2020

Advocate (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 20, 2020

Advocate (Via Telephone) — Student

Special Education Teacher (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 16, 2020

Advocate (Via Telephone) — Student

District Representative (Via Telephone) — DOE

Special Education Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 16, 2020

Advocate (Via Telephone) — Student

Parent (Via Telephone) — Student

Principal/Executive Director, (Via Telephone) — Student

District Representative (Via Telephone) — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is a child whose parents and

( , , parents or parent) have brought the instant hearing, arguing that the DOE had failed to provide with a free appropriate public education (FAPE) for the 20 October 7, 2020

17-2018 school year. The due process complaint notice (DPCN) asked for a determination that the child was denied a FAPE for the 2017-2018 school year, seeking funding for the child’s placement at the . Ex. A The hearing convened on October 10, 2019, December 10, 2019, January 14, 2020, February 14, 2020, March 24, 2020, May 20, 2020, June 16, 2020, and July 16, 2020. A series of extension decisions, dated September 13, 2019 through July 16, 2020, were issued in this case, granting extension of the deadline for decision based upon regulatory standards, with a final compliance date of October 7, 2020. The record closed upon receipt of transcript and remaining exhibits on August 31, 2020.

PARTY POSITIONS

The due process complaint notice (DPCN) claims that the district failed to provide a free appropriate public education for in the 2017-2018 school year, arguing that the district convened an IEP/IESP meeting on May 26, 2017 that failed to recommend an appropriate placement for the child, that included insufficient and inappropriate goals, that failed to develop a behavior intervention plan or conduct a functional behavior analysis, and further that the parent was notified of a placement and location at a school site that was inappropriate for the child in that staff did not speak in what was supposed to be a bilingual class, and there were no appropriate peers in the class. As relief, the parents requested reimbursement/perspective pay for the student’s enrollment at ( ) for the 2017-2018 school year. Ex. A. At hearing on March 24, 2020, the district representative indicated that the district was opposed to the parent's request on all parts of a Burlington/Carter analysis. Tr. 40-41.

Motion to Dismiss. At hearing on March 24, 2020, the district made a motion that the case was barred by the statute of limitations due to filing of the DPCN on July 29, 2019. Tr. 33-

34. The case actually was a refile of a previous case challenging the DOE for the 2017-2018 school year. That case, # , was withdrawn without prejudice and an Order of Termination issued on February 20, 2019.

Both parties submitted briefs on the motion. Exs. 6, R. By email on May 5, 2020 and again at hearing on the record on May 20, 2020, I advised the parties that the district's motion to dismiss was denied. In simple terms, the 2017-2018 school year, and the program in effect during that school year, was within the statute of limitations. Although the May 26, 2017 IEP in question was developed more than two years prior to the July 29, 2019 DPCN, it was the IEP that was in effect for the 2017-2018 school year, which is the school year in question in this case. Tr.

67-68.

One further item of note: As stated in the parent's reply to the motion to dismiss, the district's motion incorrectly indicated that the prior case, # , had been dismissed with prejudice. The parent was correct; the district’s statement was inaccurate, and the Order of Termination issued in Case # on February 20, 2019 dismissed the case without prejudice.

Tr. 68.

FINDINGS OF FACT

, currently , was seven years old at the start of the school year at issue in this case. She is primarily speaking, and has a diagnosis of Williams syndrome, described as a genetic syndrome characterized by dysmorphic facial features, short stature, mild to moderate intellectual disability, outgoing social personality or social disinhibition, ADHD, and often cardiac issues. She has delays in ADL skills and adaptive behavior related to her intellectual disability, social communication deficits, and fine and gross motor delays. Ex. 1.

testified that the syndrome delays for educational and physical and social abilities. Tr.

178. According to , Principal and Executive Director of , the school the child attends, presents classically as the child with delays associated with her Williams syndrome diagnosis. She has executive functioning skills delays, daily living skills delays, and academic delays. She has a hard time learning, a low frustration tolerance, and a problem with focus and attention. She also has very weak motor skills, which make it hard for her to write. With low frustration tolerance and low memory, she has a hard time learning because of all the executive functioning skills that hinder her ability to progress. Tr. 143-144. stated that a child with Williams syndrome would have limited cognitive abilities, as well as difficulty with academic skills, and executive functioning skills, as well as toileting issues, and that fits into all the categories. Tr. 151-152.

a special education teacher, testified that she was certified in special education K through 12, ELA 7 through 12, and was also holder of a common branch license. Tr.

81. In her present position at CSE, Region 7, she is responsible for writing IEPs and IESPs, taking part in impartial hearings, conducting meetings and classroom observations. Tr. 83.

stated that she had met , explaining that she did not conduct a classroom observation of her formally, but she was in the classroom with her at and knew who she was. She stated that has a diagnosis of Williams syndrome, which she said not a typical diagnosis the DOE would see, stating that “it would give us an opportunity to research this particular syndrome.” Tr. 84.

She testified about the IEP meeting on May 26, 2017, which resulted in an IEP recommendation for a 12:1:1 bilingual program. She agreed that the CSE meeting used the psychoeducational evaluation to make its recommendation. Tr. 103. She stated that they couldn’t take a recommendation just off the psychoeducational evaluation, but have to consider all the data before them. Tr. 104. was at a below kindergarten level, which would either be nursery or pre-K. She stated that for “her type of delays,” a 12 month 12:1:1 program would be appropriate for her. Tr. 106-108. She cited the psychoeducational evaluation, the classroom observation, the teacher report, and speech report, and the child’s diagnoses, noting that it would be appropriate for her, along with her related services. Tr. 105. Asked why a more restrictive 6:1:1 class was not more appropriate given the child’s classification of intellectual disability, she stated that a 6:1:1 class would generally be for an artistic child, and was not autistic and was very social. Tr. 106. She did not know of any 6:1:1 programs for children who were not autistic, and stated that didn’t present with the type of behaviors that could not be addressed in a public school, stating that they did not see her as someone needing a nonpublic school placement. Tr. 109. She stated that she is familiar with some of the nonpublic schools, but didn’t know whether there were state-approved schools offering small classes, not necessarily profiling children with autism. Tr. 110. She did not know if they were approved nonpublic schools to use speaking students, stating that she has not come across one yet. Asked whether HASC has bilingual students, she stated that she was familiar with the school, but didn’t know if it had bilingual students as the school was “not part of my team.” Tr.

119-120.

At the time of the meeting, was in a class of six students working at a functional kindergarten level, with a teacher and three adults in the class. Ex. 3. There was no consideration in the IEP meeting for giving her a one-to-one paraprofessional to help. Tr. 111-112.

indicated that while was distractible and needing to redirection, she in no way warranted a one-to-one para. Tr. 112. Asked about the parents’ concerns with fine motor delays, and poor ADL skills, as noted on the IEP, stated that of course a para could help with that, and a classroom with a para was provided for teaching of new skills or remediation noted on the IEP if she was having issues with learning a new concept or needed new information explained to her; it would just be “as needed” and not on a daily or hourly basis. Tr.

114-115.

stated her concerns about a recommendation for a 12:1:1 special class, noting that it was much too large for , who gets distracted and needs much more individual attention. Tr. 178-179. She testified that she visited , the recommended placement, at the time, recalling that it was definitely not suitable appropriate for her daughter. She stated that she didn’t think the children were verbal, and is very verbal. She stated that the level of learning didn’t seem at all appropriate. In addition, there were no bilingual personnel on site when she went to see the school. She was told that they might be able to get her a paraprofessional who is bilingual, but there was nobody on site. Tr. 180-181. Her basic objections were first, the fact that there was no bilingual speaker available for RM, and also that the level of students in the class wasn’t appropriate. Tr. 187.

As noted, attended during the 2017-2018 school year. , Principal and Executive Director, stated that in the 2017-2018 school year, had three classes, with seven, four, and six students, respectively. Each class had a licensed special education teacher. The school employs related service providers for occupational therapy, physical therapy, and speech therapy, who are also licensed. All students receive their related service mandates. The school is a secular school, and does not teach religious subjects. Tr. 140-141

In the 2017-2018 school year, was in a class of seven children. There was one special education teacher and three assistant teachers in the class, although ’s “assistant teachers” were actually only high school graduates. stated that she believed the students were of similar cognitive abilities. Tr. 142-143, 166-167.

stated that the school employees a holistic multimodality approach, which she described as looking at the whole child, and implementing various different strategies to assist and target their goals and objectives, and critical thinking skills. She stated the program is highly individualized, using a mixture of Orton Gillingham, and guided reading, ABA style, utilizing visual, auditory, kinesthetic, and tactile strategies. Tr. 146-147. She testified about the child’s schedule, explaining that peer socialization and pragmatics allows the children to interact appropriately among themselves, with the facilitation of either the teacher or speech language pathologist. In small group skills cultivation time, the children are broken up into very small group settings for learning, in literacy, math, or science experiment, to ensure that each step of the lesson is understood, with each child gaining from the experience by working one-on-one or one-to-two with a staff member. Tr. 149-150.

Asked about the child’s diagnosis of Williams syndrome, explained that it was important to know presentation to tailor the approach and target her remediation. Tr. 152.

stated that learns individually, and can only learn when she’s in a small class, and a distraction free environment, with lessons differentiated for her to focus on. In a class of seven children. She has a hard time organizing herself and focusing, stated that she didn’t “really know how she can function in the larger class.” Tr. 145.

She stated that gets frustrated quickly, due to her low frustration tolerance, and has emotional regulation issues. She can tantrum and takes a very long time to self soothe. The school uses a school wide social emotional learning curriculum, ’s Social Thinking in addition to Zones of Regulation. Other strategies include a structured ABA style mode of learning, with procedures and visuals in place of the can visualize and be prepared for any eventuality and try to self-regulate. In the 2017-2018 school year, she was slowly, slowly, incorporating. Tr. 147.

academic knowledge at the time was weak, and the school attempted to assist her in writing skills, learning the letters of the alphabet, learning math concepts, and critical thinking skills. She was able to focus on the task with prompts and cues or redirection, but could only learn if prompted. She needed redirection all the time. Tr. 144-145.

The school conducted informal assessments on a daily and weekly basis, counseling, monitoring progress to help children move ahead and reach their goals, especially academic goals. She cited progress in letter recognition, and possibly reading, probably learning how to read some words. She also made progress in math, in science, social servings, as well as slow progress in executive functioning skills. Tr. 148. The school has a curriculum coordinator, who has SAS certification, as well as a reading teacher monitors children’s progress in reading other strategies. Tr. 149, 165.

She also received her related services at during the school year. Tr. 142-143. In physical therapy reports from January 2017 and January 2018, the goals were the same and the progress was the same. stated that the goals were the same because they are usually broad, and there are a lot of different strengths and weaknesses that the physical therapist was working on with her. She noted the present level of functioning was different in each report. Tr.

169-170; Exs. I, M. She stated that part of the reason, occupational therapy and physical therapy were scheduled one right after the other had to do with the child’s focusing, noting that when she got a focus the therapist could take care of whatever she needs to take care of in the therapy realm. also had a very hard time leaving class. Tr. 171-172. The different year reports for occupational therapy also appeared very similar, which described as a work in progress, noting the child’s slow progress. Tr. 172.

confirmed that has now been at for four years, and that the teacher and the assistants in her class at are bilingual, and she is receiving bilingual services.

Tr. 185-186. She said that the school provides a child with beneficial services, and she made progress during the 2017-2018 school year, which she characterized as slow and steady social and academic and developmental area. She stated that the child needed reinforcement, but they were definitely individualizing her needs. At the time they saw tantrums, which caused concerns about safety, and the child was only somewhat mindful of safety at home during the time. The concern was mostly the she was able to take care of herself in certain situations. She was unable to address herself or feed herself, or toilet appropriately. She needed assistance at least 80 percent of the time. At home, she wears diapers, and during the day she would need to call somebody to help clean her. She also needed help after feeding to wash her mouth and clean away her plate.

Tr. 182-186.

The contract is for a total cost of $144,000 for the full school year, divided into $120,000 for the 10-month session and $24,000 for the summer session. Ex. B. stated that she signed the contract for the 2017-2018 school year, stating that she was obligated to pay the school for the tuition. The parent submitted a copy of a 2017 tax return, noting a family income of approximately $30,000, stating that the family could not afford to pay without borrowing money. Tr. 182; Ex. P. confirmed that the parent had not paid tuition for the 2017- 2018 school year, stating her understanding that the parents are at a very low income level. She stated they are obligated to pay the tuition to the school, and was aware that the parent requested a hearing for the case. Tr. 152-153.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School

Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

In its recent ruling on special education, the United State Supreme Court held that IDEA requires an educational program “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.

Ct. 998 (2017). The Court rejected a "merely more than de minimus" standard providing "some benefit" and held that IDEA demands more.

I find that he district failed to sustain its burden on regard to providing with a FAPE in the 2017-2018 school year.

The district argued that it provided FAPE. The IEP use the psycho educational evaluation and other documents in making its recommendation, citing the 12:1:1 class, as the least restrictive environment. However, I note ’s testimony, which in giving reasons for the 12:1:1 class basically just said it was appropriate, without any specific reasons. Nor was least restrictive environment mentioned by the witness. I note ’s initial testimony that the child’s diagnosis of Williams syndrome was not really known by the school system, offering an “opportunity for research,” and thus find troubling the failure to more completely address the meaning of the diagnosis for this individual child other than just to repeat it in the IEP.

The district also failed to meet its burden concerning the complaint is the DPCN concerning inadequate and insufficient goals in the IEP for There was actually no testimony elicited from concerning goals for the child. In addition, the district failed to address the DPCN claim that the district had not conducted a functional behavior analysis or behavior intervention plan. These are not “throwaway” claims that a district may ignore when defending an IEP.

Finally, despite several days of hearing, the district was unable to secure a witness concerning the recommended placement location. The district also did not submit any evidence concerning the appropriateness of the placement recommended, and the testimony of the parent concerning the school that was recommended was undisputed. The parent visited the placement, and despite the recommendation for a program, the classroom the parent saw had no bilingual teacher or assistants.

For the reasons noted above, I find the district failed to provide a FAPE for Case No. 185491

ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that Winston Prep offered an educational program designed to meet CHASE’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29.

It is well established law that parents are not held to the same standards as public school districts in placing their child. The test for a unilateral placement is whether it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v.

Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I find that the parent has met the burden showing that the program at was appropriate for special education needs. I credit the description of concerning an individualized curriculum conducted by speakers and the slow progress made by the student confirmed by both and . I also note the work and progress noted in reports in physical therapy, occupational therapy, and speech-language. Despite an early declaration of opposition on Prong 2 of a Burlington analysis, the district offered neither nor argument that the school was not appropriate for

For the reasons noted above, I find the program at offered an educational program designed to meet special education needs.

ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The IDEA provides that an award of Case No. 185491 tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C.

§1412(a)(10)(C)(iii).

Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

Despite an early declaration of opposition on Prong 3 of a Burlington analysis, the district offered neither evidence nor argument that the parents were not entitled to a full award based on equities. Under the circumstances, analysis of equities would not prevent an award for tuition at

Direct Payment

The parent has also requested direct funding to the school, citing insufficient ability to pay tuition. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

The contract with was for tuition of $144,000 for the 2017-2018-school year. In Case No. 185491 testimony and by the submission of tax return, the parent noted income unable to pay the costs of tuition without resorting to borrowing money. Exs B, P. I find that the parent offered necessary support for an award of direct funding for the full tuition cost of $144,000.

ORDER

1. The DOE shall pay no more than $144,000 for tuition at for the 2017-2018-school year. IT IS SO ORDERED. Dated: September 13, 2020

___ Nancy M. Lederman________

NANCY M. LEDERMAN

Impartial Hearing Officer

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.

If either party plans to appeal the decision, a notice of intention to seek review shall 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 shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request 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 rules of procedure for proceedings before an 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 http://www.sro.nysed.gov.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 5/26/17, 24 pages

2 Prior written notice and school location, 6/14/17, 6 pages

3 Classroom observation, 4/4/17, 2 pages

4 Due process complaint, 7/29/19, 4 pages

5 Psychoeducational evaluation, 4/4/17, 6 pages

6 Motion to dismiss, undated, 5 pages

PARENT EXHIBITS

A Impartial hearing request, 7/29/19, 3 pages

B Contract, , 2017/2018, 8/6/17, 5 pages

C Affidavit , 11/28/17, 1 page

D Mission statement, , undated, 1 page

E Curriculum and methodologies, , 2017/2018, 1 page

F Schedule for child, 2017/2018, 1 page

G Related services schedule, 2017/2018, 1 page

H Special education teacher report, 5/24/17, 1 page

I Physical therapy report, 1/20/17, 1 page

J Occupational therapy report, 5/2017, 1 page

K Speech and language therapy report, 5/24/17, 1 page

L Educational report, 2/28/18, 3 pages

M Physical therapy report, 1/2018, 1 page

N Occupational therapy report, 1/2018, 1 page

O Speech and language therapy report, 1/22/18, 1 page

P Parent's tax return, 2017, 2 pages

Q Certification documents, various dates, 13 pages

R Parent's response to motion to dismiss, 4/30/20, 4 pages

S Attendance record, 2017/2018, undated, 1 page

T Attendance record, 2018/2019, undated, 1 page

IHO EXHIBITS

None I