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FINDINGS OF FACT AND DECISION
Case Number: 185802
Student's Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: 04/17/2020 Pre Hearing Conference
04/28/2020
05/14/2020
06/16/2020
Actual Record Close Date: 07/15/2020
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/17/2020
For the Student:
Advocate (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/28/2020
For the Student:
Advocate (Via Telephone)
Parent (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
Bilingual School Psychologist (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/14/2020
For the Student:
Advocate (Via Telephone)
Advocate (Via Telephone)
Parent (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/16/2020
For the Student:
Advocate (Via Telephone)
Principal, (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
INTRODUCTION
On 05/29/2020, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Pre Hearing Conference was set for 04/17/2020, and Hearing set to commence on 04/28/2020.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Parent filed Due Process Complaint (DPC), dated 12/13/2019. (Ex A)
Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2018-2019 school year. (Ex A 1)
Parent is not in agreement with the IEP, and placement related thereto for the 18-19 school year. (Ex A 1-2, Ex C)
Parent seeks relief that includes reimbursement of tuition for Student attendance at , for the 18-
19 school year, with related services. (Ex A 4)
THE PARENT’S POSITION
Parent Advocate set forth the basic Parent position, via DPC. (Ex A)
Advocate presented two witnesses, including:
, Parent (Via Telephone), whose testimony is detailed below.
Parent was asked when she first became aware of Student’s need for special education services. “He was about -months-old. I noticed him dropping the few words that he did learn. Maybe two or three words that he was saying. Stopped saying them at all and no eye contact from there...That's when I had, you know, asked for services, and he was evaluated. He wasn't diagnosed right away.” (T 67) “He was receiving therapy at home and one of the therapists had mentioned to me that he looked like he might be on the spectrum and that I should have him elevated further, and that's when I contacted Dr. at . And he was the one who initially diagnosed him at about -months.” (T 67-68) Student diagnoses included: PDD-NOS, ADHD and OCD. (T 68)
Student received preschool special education services, including Applied Behavior Analysis (ABA), at home and at school. (T 68) When Student turned , he exited kindergarten from , then attended . At that time he was still receiving ten weekly hours of ABA each week, at home (T 69-70) For the 18-19 School Year, Student attended . (T 71)
DOE held an IEP meeting for the 18-19 school year, and Parent did not agree with the recommendation. Parent believed the ratio was not appropriate. (T 71-72)
Parent believes provided the program the Student needed and progress was made. (T 72) was able to provide redirection in the classroom, and socially Student was able to fit into the classroom where there were models of behavior, where Student can learn. (T 72)
Parent signed a contract with the , and money is owed to them by Parent. (T 73, Ex H, I & J)
, Principal, (Via Telephone) whose testimony is detailed below.
“ is a special education school that services students who can't function in a mainstream setting. We offer small classes with differentiated academics...in addition to teaching academics, we teach social skills and (audio interference) so our students could be independent and contributing members of society once they graduate school. We offer Regents classes and non-Regents classes.” (T 82) provides related services of occupational therapy, speech language therapy, physical therapy and counseling. (T 83) Regarding Student: “I was involved in his intake upon -- when he applied to . observed him formally and informally. I collaborated and supervised his teachers and related service providers, as well, and collaborated with his parents as well.” (T 84) Student needs include: “He struggles with social interactions with peers, typical peers and non-typical peers. He is a very black and white thinker. He very much wants to socialize, but lacks the skills on developing meaningful relationships. He requires a very -- events to be predictable in order to succeed. He need structure in order to manage the daily structures and schedules in order to manage his day. That's all from a social perspective.” (T 84-85) “Academically, he's a capable student, who requires information to be broken down into small pieces of information in order to progress. He requires a lot of visual support and repetition in order to retain information. He requires behavior management plan -- an individual behavior management plan, in order to remain focused and motivated to complete a task...as well as to help him work on goals and social development.” (T 85) For the 18-19 school year Student was in a 10:1:1 Class, both of the classroom teachers had a master’s degree in special education and are New York State certified. (T 85) Class size is important for the Student since he is easily distracted by peers : “He also requires a lot of differentiation and one-on-one support. So class size is important for him to a) remain focused, and b) to make progress in academics.” (T 87-88) Student received vocational opportunities: ‘...we did an assessment with [Student], and we have a conversation with [Student] and his family, and the vocational coordinator, as well as the clinical department. And [Student] expressed an interest in working in the culinary world. So he received training in culinary skills. He went to a class where he learned how to handle food safely, and he learned different techniques that would help him develop these culinary skills.” (T 86) Student academic instruction included: “academic instruction that correlated to the New York State Regents. He worked on acquiring the foundation skills that he needed to access integrated algebra material. He worked on learning the integrated algebra, New York State Common Core content, as well as ELA -- sorry, and moving on to ELA, he worked on reading and understanding and making inferences in non-fiction text. He learned how to read information and find answers to support statements. He learned how to -- he worked on developing his reading -- his writing skills that he is going to need in order to take the New York State English Regents. He learned biology as per the New York State Living Environment Regent Information. And he took the New York State biology Regents and passed.” (T 86-87) Regarding social skills, the Student had a “behavior plan that focused on how he can positively interact with peers during class, as well as how to interact with peers during unstructured time, such as recess and lunch. And it helped him start to establish relationships with peers.” (T 87)
Student made progress during the 18-19 school year in the area of biology, by passing the Regents. He also: “was making progress and he covered half of the integrated algebra curriculum and was ready to take the Regents this school year. He made progress in his writing and started to have the ability to respond to our prompts, stating his opinion on a question and taking content ...from a paragraph and citing it appropriately. And he was showing academic gains in all areas.” (T 88)
DEPARTMENT OF EDUCATION POSITION
DOE Representative appeared at Hearing of 04/28/2020, and presented a witness to support its case.
, DOE Bilingual School Psychologist (Via Telephone), testimony included:
Description of duties and responsibilities: “I am part of a team in which I conduct psychoeducational evaluations. I write individualized educational plans. I conduct meetings. I do classroom observations occasionally. I write functional behavioral assessments, behavioral intervention plan. I consult with parents, schools, et cetera.” (T 24) Attendance at Student IEP meeting, of 02/05/2018 (Ex C). (T 25) Regarding IEP recommendation to a special class: “A recommendation of a special class is not something that is given lightly. In order for us to recommend such a restrictive environment, we basically look at several things. One, what is the child's classification? How does the child function cognitively, as well as how functionally functioning in the academic arena. And what kind of other supports the child may need.” (T 30) Witness recounted Student IEP data, and set forth reason for the recommendation: ‘So the reason why we recommended a special class, 15:1, was because at least he would be able to show what he knows. However, the setting would be smaller. He would be with a special education teacher that would be able to modify and slowly provide him with the academic enrichment that he needs.” (T 31-32) Other programs were considered at the meeting. (T 32-33) IHO asked the witness if the witness, if at the time of the IEP meeting, the Student, was able to meet the promotional criteria of the IEP, which set a promotional criteria for 8 grade of “standard”, considering his instructional and functional level was set at 5 grade for Reading and Math. (T 38-39, Ex C 11) Witness responded, in part: “In order for me to do that, I have to look at his previous IEP because this IEP does not begin until the child begins 9th grade.” (T 38) IHO asked the witness to clarify the need for behavior intervention, since the boxed in the IEP was not checked to indicate whether or not there was a need for behavior interventions. (Ex C 3) Witness states that the “no” box should have been checked, and that Counseling would address Student emotional issues. (T 40) Witness states that Student behaviors did not impede his learning or the learning of others. (T A0-41, 43, 45) Regarding a requested paraprofessional for the Student: “That they asked for a one-to-one paraprofessional. However, we have two guidelines in which the child is able to receive a paraprofessional. One is health. There was nothing that was provided to us during our conference that necessitated a health paraprofessional... And two, a crisis paraprofessional, in which we are only able to provide it if the child is a danger to himself or others. If you go into the IEP (indiscernible) he was distracted. He'd tend to lose his concentration. However, he was not violent. So he does not meet the criteria for those -- for a one-to-one paraprofessional in that manner.” (T 43) Witness believes the Student IEP could address Student academic and social issues. (T 46) Witness confirms that the Counselor Report includes a need for a behavior plan developed and supervised by a mental health team and implemented inside the classroom. (T 50-51) Witness, regarding the Student recommended program, continued that once there is a particular Student school assigned the Parent would need to interact with that School: “There is personnel in the school that have the same responsibility as I as to follow a child and make sure that his programming meets his needs...And at this point, we are not at that point. We are just given the blueprints of what he needs. The next step is actually going into the school.” (T 54)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). '"[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an JEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007)).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E] [ii]; 34 CFR 300.5 13[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an [HO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an JEP that is ‘likely to produce progress, not regression,’ and .. . affords the student with an opportunity greater than mere 'trivial advancement" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.1 14[a][2][i], 300.116[a][2]; 8 NYCRR 200. 1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. 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]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][1], [2][;][A]; 8 NYCRR 200.4[d][2][i1i1]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][i1]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404/1 ][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to retmbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [dl]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"}).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iu|[T]; see 34 CFR 300.148[d][1]). This 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]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
DOE offer of FAPE for the 2018-2019 School Year
DOE sought to defend its 18-19 IEP.
Testimony and review of the IEP itself reveal a variety of flaws, rendering it incapable of offering a FAPE. (Ex C)
Witness contends recommendation was made, in part, in consideration of the types of supports the Student “may need” (T 30)
IEP was assembled on 02/05/2018, to commence for the Student’s 9" grade, 18-19 school year. (Ex C 8)
IHO asked the witness if the witness, if at the time of the IEP meeting, the Student, was able to meet the promotional criteria of the IEP, which set a promotional criteria for 8" grade of “standard”, considering his instructional and functional level was set at 5 grade for Reading and Math. (T 38-39, Ex C 11)
Witness responded, in part: “In order for me to do that, I have to look at his previous IEP because this IEP does not begin until the child begins 9th grade.” (T 38)
Instructional and Functional Level of the Student is set at 5" grade for Reading and Math, for the upcoming 9TM grade school year. (Ex C 11)
No evidence was presented to explain how the Student was expected to get out of 8" grade, let alone function in 9" grade, while being at least four years behind academically, in key areas, OF Reading and Math. (Ex C 11)
This information is also confusing in light of the 03/01/2017 evaluation which shows “Average “functioning in most areas”. (Ex C 11)
IEP also includes that the Student is currently working on a 7" grade Reading textbook. (Ex C 1) This conflicts with the information regarding Student instructional and functional level, of 5TM grade. (Ex C 11)
IHO asked the witness to clarify the need for behavior intervention, since the box in the IEP was not checked to indicate whether or not there was a need for behavior interventions. (Ex C 3)
Witness states that the “no” box should have been checked, and that Counseling would address Student emotional issues. (T 40)
Witness states that Student behaviors did not impede his learning or the learning of others. (T A0-41, 43, 45) Witness confirms that the Counselor Report includes a need for a behavior plan developed and supervised by a mental health team and implemented inside the classroom. (T 50-51)
The IEP includes several indications that behavior was indeed something that impeded the Student’s learning, including:
“difficulty sitting still and tends to wander...obsessive thoughts and easily distracted” (Ex C 2); “requires explicit rewards and consequences to motivate positive behavior” (Ex 2); “benefits from a behavior plan that is developed and supervised by the mental health team and implemented inside the classroom” (Ex C 2). Evidence indicates the Student does indeed require, and in fact already has, a behavior plan. Regarding a requested paraprofessional for the Student, the witness reviewed guidelines which appeared to prevent her from providing a para for the Student. Witness noted: “He'd tend to lose his concentration. However, he was not violent. So he does not meet the criteria for those -- for a one-to-one paraprofessional in that manner.” (T 43) Witness, regarding the Student recommended program, continued that once there is a particular Student school assigned the Parent would need to interact with that School: “There is personnel in the school that have the same responsibility as I as to follow a child and make sure that his programming meets his needs...And at this point, we are not at that point. We are just given the blueprints of what he needs. The next step is actually going into the school.” (T 54) Witness appears to believe that the IEP will be somehow further developed once the Student attends school. IEP must be developed at the time it is delivered to the Parent to offer a FAPE, not upon further development at the school, seven months later. Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2]f[i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][TV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]). State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient (M.W., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9; A.H., 2010 WL 3242234, at *4; see F.B., 2013 WL 592664, at *8-*1; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 269, [S.D.N.Y. 2012]; F.L., 2012 WL 4891748, at *8; K.L., 2012 WL 4017822, at *11; T.M. v. Cornwall Cent. Sch. Dist., 900 F.Supp.2d 344, 354 [S.D.N.Y. 2012]. With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [BIP] for a student with a disability when: (1) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (111) the CSE or CPSE is considering more restrictive programs or placements as a result of the student's behavior; and/or (iv) as required pursuant to" 8 NYCRR 201.3 (8 NYCRR 200.22[b][1]). Once again, "[i]f a particular device or service, including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]). If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify: (1) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (11) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (111) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]). Neither an FBA nor BIP was developed nor presented, in spite of Student’s evidenced need.
DOE failed to address serious Student behaviors in an appropriate manner.
DOE failed to consider a paraprofessional to address Student focusing and behavior.
Student is evidenced to be at an incorrect instructional and functional level, leaving whatever DOE placement was effectuated, to be instructing the Student at the improper level.
I find the DOE IEP (Ex C) failed to offer the Student a FAPE for the 18-19 school years
Placement for the 18-19 School Year
Testimony and documentary evidence support an appropriate Student placement for the 18-19 school year.
Parent witnesses, as outlined above, described Student’s special education needs (T 68, 84-85); services to address those needs (T 82-83, 85, 86, 87-88); and indicated progress (T 72, 86-87, 88). also provided Student needed Behavior Plan. Regarding social skills, the Student had a “behavior plan that focused on how he can positively interact with peers during class, as well as how to interact with peers during unstructured time, such as recess and lunch. And it helped him start to establish relationships with peers.” (T 87)
Documentary evidence submitted supports as an appropriate Student program for the 18-19 school year.
Documentary evidence includes:
A Due Process Complaint, 08/19/2019: Parent alleges the DOE IEP is not sufficient to offer the Student a FAPE for the 18-19 school year, and seeks tuition funding as relief;
B Current program description:
Special needs school with small student teacher ratios, and differentiated instruction, and vocational training; C IEP, 2/5/18: Includes small group instruction (Ex C 3); Counseling, Occupational Therapy, Parent Training and Counseling and Speech Language Therapy (Ex C 7-8); E'18/19 class schedule: Details Student academics and related therapies at ;
F '18/'19 full progress report:
Sets forth Student goals and details any progress in areas of English Language Arts, Reading, Mathematics, Behavior, Counseling, Speech Therapy and Vocational Training;
G Spring progress report, 2018/2019
Sets forth Student goals and details any progress in areas of English Language Arts, Reading, Mathematics, Behavior, Counseling, Speech Therapy and Vocational Training;
K '18/'19 attendance record:
Student attendance at for the 18-19 school year.
Evidence presented at Hearing and via the documents supports as an appropriate placement for the Student for the 18-19 school year.
I find provides an appropriate education and program for the Student for the 18-19 school year.
provides special education services specifically tailored to meet the needs of the Student.
TUITION FUNDING 18-19 School Year
Parent is entitled to funding for the 18-19 Tuition.
Parent provides supportive evidence that includes:
D Ten-day notice, 8/20/18:
Provides proper notice to the District of disagreement with DOE program and intent to unilaterally place the Student and seek DOE funding;
H Parent proof of payment, 2018/2019
Evidences Parent payment of $19,000.00
I Affidavit of payments, 12/9/19:
Tuition amount of $79,000.00, Payments thus far by Parent of $19,000.00, and Balance Due of $60,000.00; J Enrollment contract, 8/28/18: Parent signed a contract with the , $79,000.00 tuition amount, Parent is obligated to payment (T 73);
No evidence is brought forth to indicate the Parent in any way frustrated any DOE attempt to offer the Student a FAPE.
With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs.
A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[wlhere.. parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428).
The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).
Where the Parent(s) select the unilateral placement, it is the Parent(s) financial status at issue. Therefore, Parent(s) has the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of the unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12-132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ. Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).
Parent has evidenced an obligation to pay the Student tuition.
Parent has not evidenced a lack of financial resources to pay the tuition and await reimbursement.
Parent establishes a denial of FAPE and appropriateness of I find the Parent is entitled to reimbursement funding of tuition as Ordered below.
ORDER
l. Department of Education (DOE) failed to offer the Student a FAPE for the 2018-2019 school years.
2. DOE shall reimburse Parent for Student Tuition payments to for the 18-19 School Year, up to the amount of $79,000.00.
3. The DOE shall provide Parent with any documents or forms necessary to facilitate reimbursement of the above within ten days of the date of this Order.
4. This decision is subject to appeal and review by the State Review Officer.
DATED: July 16, 2020
DANIEL AJELLO
DANIEL AJELLO
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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 days after the date of rthe 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 the service of the request for review is complete. The rules of procedure for appeals 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://Awww.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
ENTERED 04/17/2020
A Due Process Complaint, 08/19/2019,[5] pages
ENTERED 04/28/2020
B Current program description, one page
C TEP, 2/5/18, 13 pages
D Ten-day notice, 8/20/18, two pages
E'18/'19 class schedule, one page
F '18/'19 full progress report, six pages
G Spring progress report, 2018/2019, four pages
H Parent proof of payment, 2018/2019, 12 pages
I Affidavit of payments, 12/9/19, one page
J Enrollment contract, 8/28/18, one page
K '18/'19 attendance record, one page
DEPARTMENT OF EDUCATION
ENTERED 04/28/2020
Footnotes
[5] SESIS events log, various dates, three pages IMPARTIAL HEARING OFFICER ENTERED 04/17/2020 I Notice of Appointment, 05/29/2020, four pages ENTERED 06/16/2020 II Order Denying Consolidation, 09/24/2020, 1 page