Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 186002

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates Of Hearings: November 22, 2019

January 9, 2020

Record Closed Date: February 14, 2020

Hearing Officer: Susan C. Lushing, Esq.

Introduction

I was appointed as the Impartial Hearing Officer pursuant to the IDEA on August 28, 2019 after the parent filed a request for an impartial hearing. The impartial hearing commenced on November 22, 2019 and continued on January 9, 2020. , Esq. appeared for the DOE and , Esq. appeared for the parent. A list of witnesses and exhibits is appended to this decision. The compliance date was extended several times at the joint request of the parties with a current date of March 7, 2020. The record close date is February 14, 2020.

DOE’s Case:

The DOE called two witnesses and presented ten documents in evidence as Exhibits 1-10 in support of its IEP for the 2019-2020 school year. (Ex. 1).

Dr. , the school psychologist and District representative at the IEP meeting on July 9, 2019, testified that the meeting took place after a parental request for evaluation. (T. 23; Ex A).

Also present were the mother and certified special and general education teachers. (T. 25-26). Documents were reviewed at the meeting including the psychiatric evaluation, social history update and independent neuropsychological report (Exs. 3-5) and there was a detailed discussion with the parent. (T. 27-30). The mother reported a number of mental health challenges that made it difficult to get the student to school and that influenced the recommendation for a therapeutic residential school although it was unclear if there would be NYS-approved school expressly for one gender as recommended by Dr. because of the student’s fear of males. (T. 34-38). Such a requirement was not placed on the IEP as it was not within the role of the IEP team, just to decide whether deferral to the CBST was appropriate and to complete the necessary referral documents. (T. 39-42). The team recommended a 12-month school year as that is standard with a residential placement and set the start date as September 3, 2019 so there would be time for the CBST and parent to work together to find a school. (T. 58-60).

, administrator at the CBST, testified that after she received a deferral for this student with a packet of materials (Ex 7), she forwarded it to prospective schools. (T. 195-197). Four were single-sex schools. (T. 201). According to Exhibit 8, after reviewing the information, some of the schools sent a rejection because they had no vacancy or because they could not meet the student’s needs but some asked for an interview with the parent and student. ; ; reported that the parent was not willing to come for an interview. (Ex. 8). In the case of , the parent canceled the interview set for August 13 after Ms. had set up transportation by car service. (T. 199-208).

Parent's Case:

The parent called two witnesses and introduced nine documents in evidence as Exhibits A-I in support of her request for prospective funding of tuition at the ( ) for a denial of FAPE during the 2019-2020 school year.

Dr. , clinical psychologist, performed a neuropsychological evaluation dated March 20, 2019 (Ex. 4). He diagnosed the student as having a disruptive mood dysregulation disorder, generalized anxiety disorder and a persistent depressive disorder. (T. 85). Because of their rapport and the safe space provided, she performed better during the assessment than at school where she was anxious because of bullying by boys. (T. 87, 93). Given her above average IQ, her processing speed on the testing was below expectation.

This might in the classroom require her to take longer to understand what was expected of her and cause frustration leading to an anxiety attack and dysregulation, further impairing her ability to perform. (T. 91-92). Given her fear of boys, he recommended a 12-month all-girls residential school as a safe place where she would be able to learn coping skills for her anxiety. (T. 93-95). He doubted she could make progress currently in a co-ed school. (T. 96).

Two witnesses testified from , , a licensed social worker, provides a weekly therapeutic session of 30-60 minutes for the student as well as a one-hour weekly phone call with her family and group sessions in a group of six four evenings a week. (T. 120-121).

is a therapeutic residential school for teenage girls. Currently there are students, typically ages 14-18, with non-acute anxiety, depression or other mental health concerns. The goal is support them and help them to return to a normal setting. (T. 114-116). The student’s special education needs stem from her anxiety in a classroom setting, leading her to miss class and struggle with her peers.

She benefits at from positive reinforcement, extra time and space to complete assignments and support to maintain focus. A residential setting affords 24-hour supports, helping her to remain organized and to better relate to her peers. (T. 117). She lives in a family unit with — girls with similar emotional needs and one adult residential advisor with a therapist and an academic advisor also assigned. (T. 11/7-119). There is a weekly meeting of her treatment team to gauge progress and come up with a plan to improve her social/emotional regulation. (T.

122-123). When she arrived in August, she was resistant to going to school despite being told to go multiple times a day and avoided her peers to avoid conflicts. Now that she has settled in she is more willing to talk to her peers and communicate issues with them. (T. 126-128).

, the student's academic advisor, also advises other students and teaches history. (T.143). Students are grouped academically based upon grade level with an average class size of and the family unit is grouped by age. (T. 143-144). The teachers have professional licenses from West Virginia or another state and there is one licensed special education teacher who teaches academic learning lab classes for study skills and college preparedness. (T. 145). As the student's history teacher and academic advisor, she participates in weekly team meetings with her other teachers. (T. 146).

Every student upon arrival has an academic instructional plan. One of the issues for this student is a need for recognition that she is doing well by word or facial cues and she can shut down if she does not get it.

Initially she would refuse feedback even if complimentary and become closed off but she has started to be more receptive and accept it as constructive. Also she struggles with getting to school; sometimes she won't get up in the morning, other times she sits on the porch and naps after lunch. (T. 147- 151; 167-168). Students check in daily with their academic advisors to get feedback from their teachers and have access to a special education room. (T. 154).

Each student's plan is individualized to her needs. For this student there is extended time on assignments, access to self-soothing items in the classroom and to the special education teacher’s room to cool off.

(T.155-157). For Spanish and algebra she is in a class of two students, for science six students, for history seven students and for literature ten students — all working on a 9" grade curriculum. (T. 157-159). She has made progress since August: she comes to class more regularly, about

70% of the time; she is participating more in class discussions and is forming some peer connections; the frequency of loud inappropriate comments and jokes has decreased; she recently invited students to do a play or skits despite her vulnerability. (T. 161-162). Her social progress and more openness with peers would not be as likely in a coed program.

(T. 152-153).

The mother testified that until the 7" grade, her daughter was motivated and a high achiever. After that she became highly anxious and had difficulty attending school as well as becoming highly agitated and sometimes aggressive towards her mother and sister. Her father had died when she was eight and with puberty she started reliving the trauma. (T. 220-222). In middle school she was also the subject of bullying by boys. (Ex. |). Her daughter had an IEP for the 2018-2019 school year when she was in the 9"" grade at that only provided for counseling 1x45. (Ex. 9).

In January 2019 after an unsuccessful semester, the mother met with some experts to explore options and was referred to Dr. for an evaluation. (Ex 4). Based upon his recommendation that her daughter needed an all-girls residential setting, she wrote to the principal on May 17, 2019 requesting a new IEP meeting. (Ex A). At the meeting she mentioned her daughter's fear of men and asked for a girls school but was told by Dr. that the programs would likely be coed. (T.

231-236).

On July 22, 2019 on the phone Ms. explained the referral process and said she would try for an all-girls school but it was not guaranteed. The parent was contacted by a number of schools. In three phone calls with , she learned it had a but while the residential portion was girls only, the school was coed. Also there were no other students performing on the same high academic level as her daughter. She never spoke with despite entries in Exhibit 8. She made an appointment to visit with her daughter after phone conversations with limited information though she knew it was a coed school. She subsequently cancelled because of a family emergency. was a school for children with highfunctioning autism and had girls and _ boys in the program.

called on August 12, 2019 and offered only one interview appointment — on August 16 when the family had train tickets to attend a family event near Albany. When asked for another date, she was told the school would be on break until after Labor Day. (T. 239-250).

On August 14, 2019 her attorney sent a ten-day notice of the student’s planned enrollment at . (Ex B). Her daughter has made progress there so that when she was home for Christmas, she was much calmer and not aggressive toward anyone. Also she was able to talk about the future -something she had resisted before. (T. 252-253). The parent is a single parent with two children and cannot afford to pay the $96,250 tuition at pursuant to a contract signed on August 26, 2019. (T. 254-258; Ex E). She has already paid $1149.17. (Ex. H).

Findings of Fact and Decision

The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d)(1)(A). State and local education agencies are required under federal laws to identify children with disabilities and develop annual IEPs for each child. 20 U.S.C. §1414. The IEP is a comprehensive document developed by a team consisting of parents, teachers and other school administrators. It outlines the goals of a student and the special education and related services needed to meet those goals. Id. A FAPE is offered to a student when: (a) the DOE 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 a student to receive educational benefits. Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

The IDEA requires that a FAPE be tailored to the unique needs of the disabled child by means of an IEP prepared at a meeting between a qualified representative of the local educational agency, the child's teacher and the child's parents or guardian. The IEP consists of a written document containing: (1) a statement of the present levels of educational performance of such child; (2) a statement of annual goals; (3) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (4) the projected date for initiation and anticipated duration of such services; and (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 20 U.S.C. §1414(d). In developing a particular child’s IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107- 08 (2d Cir. 2007).

In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either: (1) impeded a student’s right to a FAPE; (2) significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a FAPE; or (3)

caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); See also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415 (S.D.N.Y. 2007); Application of a Child with a Disability, Appeal No. 07-

007. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. 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); Application of a Child with a Disability, Appeal No. 07- 046. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. See, 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415, at 419 (S.D.N.Y. 2007).

A Board of Education may be required to reimburse parents for their tuition costs if it fails to offer a FAPE, the school selected by the parents is appropriate and equitable considerations support the parent's claim. School Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 51.S.Ct. 7 (1993). Under the IDEA 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 is reasonably calculated to enable the student to receive educational benefits. Bd. of Ed. v Rowley, 458 U.S. 176, 206-07 (1982); Cerra v Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2005). Mr. and Mrs. A. ex rel. D.A. v N.Y.C. D.O.E., 769 F.Supp.2d 403 (SDNY 2011), M.F. v N.Y.C. D.O.E. 11-CV-6526 (SDNY June 4, 2013) and D.C. v N.Y.C.

D.O.E. 12 Civ. 1394 (SDNY March 26, 2013) allow for direct payment to a nonpublic school if a family’s financial circumstances so warrant.

The Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression” and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.’ Cerra v. Pawling Cent. Sch. Dist., supra, quoting Walczak v. Florida Union Free och. Dist., 142 F.3d 119, 130 (2d Cir. 1998); in that it is likely to provide some ‘meaningful’ benefit, Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). ). To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances’.

Endrew F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995-96 (2017).

However, a school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability.

Bd. Of Educ. v. Rowley, supra; See, Grim v. Rhinebeck Cent. Sch. Dist., supra; Walczak, supra. The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment. Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).

Turning to prong 1, I find that the IEP prepared on July 9, 2019 met the requirements of the IDEA. The composition of the IEP team and the adequacy of the materials before it have not been challenged as they were clearly appropriate. Nor are the classification of Emotional Disturbance or the recommendation of a residential school in controversy. Rather the parent raises objections to the adequacy of the IEP as it omitted inclusion of goals to address executive functioning and processing speed deficits, reference to self-harming behaviors and most significantly, the need for a girls-only school. Also in dispute were that there was no preparation of an FBA and BIP and no plans to address the gap in grade level after the student essentially missed 9"" grade.

I find none of these parental arguments to be persuasive. The evaluations and the testimony of Dr. indicate that while executive functioning and processing speed were weaknesses compared to her above average and superior performance on other subtests, they were still in the average range. And in any event they were addressed in the management needs section of the IEP. The IEP described the student’s emotional issues and diagnoses in sufficient detail to properly inform of her educational needs without the need for an FBA or a BIP to target specific behaviors. And she was being referred to a therapeutic school where the staff would undoubtedly conduct their own assessments of how to best manage her in a classroom setting - something has provided through a “care plan”. Finally she is being taught a 9" grade curriculum at in recognition of the gap in her academic knowledge.

More significant is the parent’s claim of a lack of FAPE because the IEP did not require a same sex placement even though the student's past history with bullying and fear of males was discussed at the meeting and mentioned in several places on the IEP. The NYC DOE has created a two-tier process whereby placement is separately recommended after the IEP meeting without input by the IEP team or the parent although there is no dispute that a timely and appropriate placement is part of the requirements of FAPE. I find that the record amply supports the appropriateness of a same-sex placement for this student for the school year in question based on the report of Dr. , the testimony of the parent and the letter from her middle-school principal. Thus the DOE could have provided a FAPE, despite the absence of a specific recommendation on the IEP, if its implementation process had led to a timely placement in a same gender school.

Turning now to events at the CBST, It took 12 days, from July 9 to July 21, for the CSE to transmit the necessary documents to the CBST.

Ms. then promptly referred the student to 11 schools on July 23.

(Ex. 8). Many of them responded promptly but unfortunately most were rejections. The parent heard from the few who were potentially interested, largely by the first week of August. She declined to visit as these were co-educational and did not have a functional grouping for her daughter who was in the superior range cognitively in many areas. She canceled a visit to because it was coed and traumatic to bring her daughter. From the record it is unclear if she declined an interview at as the DOE document says one thing and the mother, whom I find to be a credible witness, denied any phone contact from that school. That leads us to consider the circumstances involving the most appropriate school, Exhibit 8 indicates a response date by to the CBST of August 13 but does not give an actual date for the phone contact with the parent According to the mother it occurred on August 13 and she was given only one date for an appointment, on August 16, a date on which it was inconvenient for her and her daughter to attend.

Nothing else was available at the school until after Labor Day in September. Although it was not explored in the record, I note that an appointment date is not the same as a guaranteed acceptance as both the parent and the school after a meeting may determine inappropriateness. The DOE has chosen not to present any witness from to testify as to the specifics of the school, such as the ages and learning characteristics of its students, and the likelihood of an acceptance for this student after an interview. Hence on this record the DOE has not proved that a timely placement in a same-sex school was actually available for the student before September 3, 2019, the date of implementation on the IEP. Thus I find that the DOE has not met its burden of proof as to a FAPE.

Turning next to prong two, the private school must offer an educational program that meets the student's special education needs.

See Gagliardo, 489 F.3d at 112, 115; Frank G., 459 F.3d at 363-64; Walczak, 142 F.3d at 129; Matrejek 471 F. Supp. 2d at 419. A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510 U.S.

at 14. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see also, Gagliardo, 489 F.3d at 112. While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate.

I find that the parent has proved that provided educational instruction specifically designed to meet the unique needs of the student.

Frank G v NYC Bad. of Educ., 459 F 3d 356 (2d Cir. 2006), Hardison v. Bd. of Educ. of Oneonta, 773 F.3d 372, 386 (2d Cir. 2014); C.L. v.

scarsdale Union Free Sch. Dist. , 744 F.3d 826, 836 (2d Cir. 2014). This is a capable student whose academic difficulties stem from her anxiety, depression and resulting unwillingness to attend class. is providing a nurturing therapeutic environment with small classes (from students) and small residential arrangements. She has individual and groups counseling sessions with a licensed therapist as well as academic support from a special educator. The fact that her subject area teachers are not licensed in special education is irrelevant and not a basis for declining tuition funding given the nature of her disability. The record indicates academic and emotional progress since her arrival in September through testimony in early January. Thus I find that the parent has met her burden under prong 2.

The IDEA mandates a cooperative approach to this process of IEP development, requiring that the IEP be developed jointly by appropriate school officials, the child’s teacher, the parents/guardian, and, where appropriate, the child. 20 U.S. C. § 1400 et seq. The IDEA also emphasizes the importance of parental involvement in decision-making regarding the educational needs of the child. See Id. at §1414(d)(1)(B), §

1414(d)(3)(A)(i) and §1414(d)(4)(A). The third prong of the Burlington test requires the parent to demonstrate that the equities favor her claim for reimbursement. To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C., 226 F.3d at 68; Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16.

Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied... upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c) (iii) (II).

As to the balance of equities here, I find that the parent was cooperative after her referral on May 17, 2019 in terms of consenting to new testing and attending and participating in good faith in the IEP meeting on July 9, 2019. The DOE argues, however, that the parent failed to engage in the necessary cooperative process to locate a residential school by unreasonably declining to appear with her daughter for interviews. I find that the parent had good reason to reject schools that were not co-educational, such as . The most troubling issue is her refusal to change the family’s travel plans to accommodate the interview offered by on August 13 to be held on August 16, 2019.

While another parent might have changed plans to appear with three days notice, the reason this parent faced this choice was due to the amount of time taken by the DOE earlier in the process. There were 53 calendar days from referral for reevaluation to the IEP meeting plus 12 calendar days to forward the materials to the CBST on July 21. The schools received the packet on July 23 yet , unlike other schools, did not reach out to parent for 21 additional days. And it could provide no second choice of dates for an interview because of the school’s plans for vacation. Weighing the actions of both sides, I do not find that the equities disfavor the parent’s request for tuition funding under Burlington/Carter.

THEREFORE IT IS FOUND and ORDERED that

1) the DOE did not provide a FAPE for the 2019-2020 school year;

2) the placement at was appropriate as it provided educational benefit to the student.

3) the DOE shall directly pay to the school the balance of the tuition in the amount of $96,250 for the 2019-2020 school year and reimburse the parent for $1149, the amount she has previously paid.

February 17, 2020

/s/ Susan C Lushing

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.

NAMES AND TITLES OF PERSONS WHO

APPEARED ON: November 22, 2019

For the Student:

For the Department of Education:

Attorney, Attorney

Parent, District rep.

Aunt Dr.;

Dr,, Psychologist Psychologist

Therapist

Advisor

NAMES AND TITLES OF PERSONS WHO

APPEARED ON: January 9, 2020

For the Student:

For the DOE:

Attorney, Attorney

Parent, Ed Administrator

Aunt

NYC DOE EXHIBITS

IEP 719/19 14 pgs

Prior written notice 7/21/19 4 pgs

Psychiatric evaluation 6/12/19 8 pgs

Neuropsychological 3/20/19 32 pgs

Social history update 4/9/19 4 pgs

SESIS events log various 10 pgs

Defer to CBST 719/19 5S pgs

NPS tracking document undated 5S pgs

IEP 12/7/ 8 pgs

10 Documents from various 10 pgs.

PARENT’S EXHIBITS

A. Referral letter 9/17/19 2 pgs Ten-day notice letter 8/14/19

OD0W

Mm

TDN response

Due process complaint

Tuition contract

8/28/19

8/27/19 undated

3 pgs

Class schedule 11/14/19 2 pgs Program description 11/15/19 1 pg

Affidavit of payment 11/14/19 1 pg

Letter from Principal 11/14/19 1 pg