Impartial Hearing Decision

FINDINGS OF FACT

Case Number: 186044

NYS Case Identifier Number: Student’s Name: Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: May 4, 2020

Record Closed Date: June 22, 2020

Hearing Officer: Ciccone

L. Introduction

On September 10, 2019, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of XXXXXX XXXXXX ("student"); a pre-hearing conference on October 10, 2019, and hearing session on May 4, 2020. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadlines were extended in part due to, the unavailability of witnesses and the requirements of due process, in order for the parties to complete their case and receipt of transcripts and closing briefs. Before granting the extension request, I found that the child was enrolled in and attending a school program and determined that the extension would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension request was not based on school vacations, or scheduling conflicts of the parties or their representatives.

Il. Background

The studentis an year old with a significantly complex educational profile. The student has been classified as a student with other health impairment. The most recent IEP was held on Nov. 27, 2018 (Exh. 6) for the 2019/2020 school year. The IEP recommended that the student attend a special class in with an 8:1:1 ratio with related services of counseling services (1x 30, 1:1), Adaptive Physical education (3 times a week), Occupational therapy (3 x 30, 1:1), physical therapy (2 x 30, 1:1), Speech and Language Therapy (4 x 30, 1:1) and a 1:1 full-time paraprofessional for toileting. A placement letter was sent to the parents in June 2019 recommending (Exh.9). After a tour of the school, the parents notified the DOE of their concerns that the placement would not meet their child’s needs (Exh. 10). The DOE did not respond, and the student attended (herein referred to as ) for the 2019/2020 school year and are seeking reimbursement of tuition for the 2019/2020 school year.

The student attended for the 2018/2019 school year.

Ill. The NYCDOE’s Position

The DOE maintains that the Nov. 2018 IEP recommendations for the 2019/2020 school year of an 8:1: 1 with related services in a school with a placement at was appropriate and provided the student with a free and appropriate education (FAPE). In support of their position they had two witnesses the school psychologist who attended the IEP meeting and the unit coordinator for and documentary evidence (Exhibits 1-13).

IV. Parent’s Position

The parent contends that the IEP did not provide the student with FAPE for the 2019/2020 school year by failing to recommend an appropriate school placement as the recommended program could not adequately address the student’s considerable needs. In support of its position they presented the testimony of two witnesses and submitted exhibits A-I. V. The NYCDOE’s case

The school psychologist testified (Tr.21-66) who was present at the Nov. 2018, IEP. The witness testified the team relied on the updated cognitive and academic assessments provided by the parent done in March 2018, quarterly progress reports in June and August from the school, with the teacher, occupational, physical therapy, counseling, speech/language progress reports in considering the recommendations (Tr.25). She stated the student had borderline cognitive functioning with academic scores in the kindergarten range (Tr.26,28). She stated the team recommended the same related services that the student was receiving at (Tr.29) and the only concerns raised by the parents at the meeting was the size of the classroom ratio (Tr. 29,34).

The parents had no disagreement with the frequency or duration of the recommendations of the related services (Tr.38).

She stated based on what was presented, the student required a small student, teacher ratio with a highly structured environment, with minimum distractions, and a visual schedule and felt the 8:1:1 ina was appropriate (Tr.39). She further testified that students in an 8:1:1 class would be working on academic skills while a 6:1:1 class would be working on preacademic skills and with the student demonstrating academic skills they wanted to put the student in a class the student could be academically challenged but at the same time supported, exposed to students also working on social skills (Tr. 40,41).

She acknowledged that she was not sure if she had observed this student in the classroom or that any DOE employee had observed the student (Tr. 42,43). She acknowledged that none of the service providers attended the meeting, that while she was involved in articulating the goals another DOE employee wrote the goals in the IEP (Tr.51). The related services in the IEP were the same related services that the student was then receiving (Tr.48). She also did not know the student ratio at (Tr. 53). She acknowledged that the parents had concerns and made a request for an assistive technology evaluation and they were told to make the request which they did (Tr. 56,57).

The second witness was the unit coordinator for . She stated that among her duties were to give tours to prospective parents (Tr.67,68). She stated that the school was located in in a very large building (Tr.68). The building houses which has about

140 students on the first and second floor (Tr.75), has 300 students and on the 3" floor has 500 students (Tr. 75). Each school has staggered starting times for the one entrance to the school outside of a wheelchair entrance (Tr.79). the school does not have an elevator (TR.80). The school had 4 8:1:1 classes for the 2019/2020 school year (Tr.70).

For the 2019/2020 school year the 8:1:1 classes were on the first and second floor, the gym and cafeteria on the first floor and bathrooms were next to the classrooms (Tr. 71), the school has a toilet training protocol (Tr. 73). During the 2018/2019 school year one of the 8:1:1 classrooms was on the 3“ floor (Tr.82).

VI Parent’s case

The parent testified (Tr. 128-162). She stated that once they received the school placement letter, they took a tour of the school (Tr. 150). The vice principal gave the tour and showed them the 8:1:1 classroom on the 3 floor and when they inquired about the bathroom, they were told the bathroom was across the hall (Tr. 151). She stated her child and the struggles with toileting (Tr. 133). They were told there was no elevator and the students took the stairs to use the lunch room and that a therapy room was also on the ground floor (Tr. 151). She stated her child due to his lack of depth perception has difficulty walking up and down stairs (Tr.132). She stated that it would take her child a long time to get down the stairs and would have anxiety on the stairs with other students (Tr. 152). She was also concerned that the students who would be her child’s peers were reading at a higher level and she knew that her child would withdraw in the class (Tr.

154). They wrote the DOE of their concerns after the tour (Exh. 10) and never received a response (Tr. 147).

She stated that her child made progress at during the 2018/2019 school year (Tr.137). There is a strong sense of community at the school and his math teacher from last year is his teacher and he knew all the therapists (Tr.137). She opined that was the appropriate placement for her child for the 2019/2020 school year as it offered a continuation from the previous year, she had the upmost confidence with , they were working very well with her son and had a wonderful plan for phasing him into middle school and he was with the same peers since he was’ (Tr.138). She also testified that he was appropriately grouped academically (Tr.

139) and has made academic progress (Tr. 141) and there was a feeding therapy in place to help him with articulation and to help with actual feeding itself (Tr.139). She also stated that having the bathroom in the classroom has helped with toileting (Tr. 139).

At the IEP meeting they asked for an assistive technology evaluation and never received a response (Tr. 146), they raised that feeding had to be added to his therapy and they did not agree with the speech/language recommendations (Tr. 144,145, 1146). She also stated there was no recommendation for a NYS approved nonpublic school and the IEP team thought that since the student had made progress, he should go to a school (Tr. 149).

The student’s current teacher testified (Tr. 90-128). She described as a private school that provides educational services to students with global disabilities and provides related services (Tr.90). She stated the student is in her class and was first introduced to him during the 2018/2019 school as she was his math teacher (Tr.90,92). She stated the student is a joy to have, eager to learn, always very attentive, ready to learn new skills and works very hard (Tr.93). The student is most challenged in math, writing and reading, struggles to communicate emotion rathe then expressing needs or wants (Tr.93). The student needs reminders to clear the face after eating and struggles with bathroom issues (Tr.94,95).

She stated the student is in a 9:1:1 classroom, and opined it is appropriate for him (Tr.

96,97). He is getting 3:1 instruction and has 1:1 available if he needs direct in math but generally it is 3:1 (Tr.97). She stated he is always placed with other students that are the same academically as well as socially-emotionally (Tr.98). She stated that all instruction is specifically geared to meet his needs (Tr.99).

She stated he is reading on a kindergarten level (Tr.100) and she often pre-teaches to assist him with his learning (Tr.101). His writing instruction is on a 1:1:2 ratio (Tr. 106). She stated that assistive technology is used during writing activity and found that it removes stress and anxiety with his struggle of handwriting due to his gross and fine motor skills (Tr. 108).

He has counseling once a week to support him emotionally to encourage him to voice his feelings (Tr. 109). She stated with the bathroom in the classroom there have been a decrease in bathroom accidents (Tr.110). They use “floor time” with him to give him a lot of socialemotional support to help him through emotional struggles such as bathrooming (Tr.113). She opined that meets his needs and is appropriate program with the small class room, individual academic program, social-emotional curriculum and he is flourishing emotionally (Tr. 113, 114)

VIL. Findings of Fact and Discussion

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R.

§ 300.320). 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). 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).

Under the IDEA, if a procedural violation is 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][i1]; 34 C.F.R. § 300.513[a][2]).

The IDEA directs that, in general, an impartial hearing officer'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]fi]). 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). 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).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement" (Walczak, 142 F.3d at 130). 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 LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R.

§§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

The DOE recommended a 8:1:1 setting in a school and sent a placement letter to the parents in June 2019. The parents went to the school that housed close to 100 students, with no elevator and no in classroom bathroom or a private bathroom. The parents observed that the 8:1:1 class was academically more advanced than their son and were concerned that he would be do well. The parents sent a letter expressing their concerns and the DOE did not respond. The record clearly established that this student has physical limitations and socialemotional issues around toileting and feeding issues that upon a tour of the school the parents were concerned those specific issues would be addressed. In their letter sent after touring the school rejecting the placement (Exh.10) they were very clear in outlining why they believed the placement would not work. The DOE never responded.

The concerns outlined by the parents after touring the recommended placement were not minor concerns as the DOE would suggest but would have had a profound effect on the social emotional needs and health of their child in addition that there was no evidence of how the placement would meet the academic needs of this child as well. Furthermore, the parents were ready and willing to meet with the DOE to discuss alternate placements.

By failing to even acknowledge the parents’ concerns the district undermined the “cooperative process” between parents and districts that the Supreme Court has held constitutes the “core of the [IDEA]” (Schaffer v. Weast, 546 U.S. 49, 53 [2005], citing Rowley, 458 U.S. at 205-06; see also 20 U.S.C. § 1400[c][5] [stating Congress’ finding that the education of students with disabilities can be improved by “strengthening the role and responsibility of parents and ensuring that families of such children at school and at home”]). Thus, the district’s failure to respond to the parents, where the parents raised concerns regarding the student's placement, significantly impeded the parents' ability to participate in the decision-making process regarding the student's placement and thereby denied the student a FAPE (20 U.S.C. § 1415[f][3 J[E] [i (11); 34 CFR 300.5 13[a][2][ii]; 8 NYCRR 200.5[)][4][i1]).

The parents’ claims about the recommended placement were not speculative. The school site is an important factor that parents rely upon in making their determination regarding the adequacy of a recommended placement (V.S. v. New York City Department of Education, 25 F.

Supp. 3d 295 (E.D.N.Y. 6/10/14). See D.C. ex. rel. E.B. v. New York City Department of Education, 950 F. Supp. 2d 494 (S.D.N.Y. 3/26/13) (finding that parents rely on information that was given at time that they were required to make placement decision and not on retrospective testimony by District justifying placement). See also R.E. 694 F.3d at 187-88) [“At the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered”; see Application of the Bd. of Educ., Appeal No. 18-001; Application of a Student Suspected of Having a Disability, Appeal No. 16-011). Since R.E., the Second Circuit has continued to emphasize the importance of limiting a FAPE analysis to include a review only of the information “reasonably known to the parties at the time of the [parents’] placement decision” (R.E., 694 F.3d at 187; see J.C. v. New York City Dep't of Educ., 643 Fed. App’x 31, 33 [2d Cir. Mar. 16, 2016]; WO. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 220 [2d Cir.

2014]; C.F. v. New York City Dep't of Educ., 746 F3d 68, 81 [2d Cir. 2014]). The Second Circuit’s reasoning is generally applicable in this context: The parents relied on specific and credible information provided by the District and informed the District of their specific and credible concerns about the information provided, which was related to the District’s inability to safely and appropriately educate their child. (Ex. 10; Tr. 152, 154-55)’; and the district did not respond. The parents’ reliance on specific and credible information told to them by the school’s

Assistant Principal was reasonable, and the District’s failure to respond impeded the parents’ ability to meaningfully participate in the decision-making process concerning their child’s education; and is at the crux of this case.

I find, the DOE failed to provide this student with FAPE for the 2019/2020 school year.

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is “appropriate” under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents’ private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gaglirdo, 489 F.3d at 115.

I find that the student’s parents met the Carter requirements. The Department of Education did not offer the student an appropriate program or placement for 2019/2020 school year. I find that is an appropriate program for the student, even though it is not a SED-approved program. offers a supportive, structured environment, and small group instruction designed to meet the specific needs for the student, and appropriate supports and accommodations. The student is in a class with students of similar needs and abilities. The program at effectively addresses the student’s academic and social deficits. The record indicates that the student has made academic progress at , "$s program seems reasonably calculated to ensure that the student benefits educationally and makes academic and social progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition/fees. I find that the parents fully cooperated and communicated with the CSE, and that they made a timely hearing request. Therefore, I conclude that the student’s parents are entitled to tuition reimbursement.

Vill. Order

IT IS THEREFORE ORDERED THAT: a) The DOE shall reimburse the parents for the tuition of their son at for the 2019/2020 school year.

/s/Diane Ciccone

Diane Ciccone, Esq. IHO

Dated: June 23, 2020

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.

Present at the Hearing on May 4, 2020 (remotely)

For the District:

Dr. - District Representative

- School psychologist

- Unit Coordinator at

For the Parents:

Esq- Attorney for parents

- father

- mother

- teacher at

Exhibits

For the District

#1- Due Process Complaint- dated 8/28/19- 6 pages

#2- Neuropsychological Evaluation Update- dated 3/16/18- 35 pages

#3- Report of Progress- dated 6/2018- 18 pages

#4- CSE Meeting Notice dated 11/01/18-3 pages

#5- CSE Meeting Minutes dated 11/27/18- 4 pages

#6- Individualized Education Program dated 11/27/18- 36 pages

#7- Prior Written Notice dated 1/7/19- 4 pages

#8- School Location letter dated 1/7/19- 2 pages

#9- School Location letter dated 6/11/2019- 2 pages

#10- Parent Letter Denying Placement dated 6/26/19- 2 pages

#11- Notice of Unilateral Placement dated 6/17/19- 4 pages

#12- Prior Written Notice dated 6/11/19- 4 pages

#13- Assessment Planning dated 10/18/18- 1 page

For the Parent

#A- Due Process Impartial Hearing Request dated 8/28/19-5 pages

#B- Notice of Placement (10 Day Notice) dated 6/17/19-4 pages

#C- Enrollment Contract dated 5/28/19- 4 pages

#D- Daily Schedule dated 2019/2020- 1 page

#E- Quarterly Report of Progress dated 1/19/19- 9 pages

#F- Letter to CSE-COPY dated 6/2019-2 pages

#G- Neuropsychological Evaluation- dated 1/24/18,

2/7/18

2/14/18, 2/28/18

3/7/18, 3/16/18- 35 pages

#H- Oral Motor Program Plan dated 6/18- 4 pages

#1- Oral Motor/Speech/Feeding Re-Evaluation dated 11/14/19-4 pages

For the IHO

#1- Parent Closing Brief- dated 6/1/20- 16 pages

#2- DOE Closing Brief- undated- 10 pages