New York City Department of Education, Impartial Hearing Decision

Case Number: 188434

Student’s Name:

Home District:

Hearing Requested By: Parent

Date of Hearings: February 4, 2020

February 26, 2020

November 12, 2020

Hearing Officer: Ellen Cutler-Igoe, Esq.

Hearing Close date: December 17, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2020

Esq. Parent Attorney — Parents

Parents

PH.D Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2020

Esq. Parent Attorney — Parents

Parents

Admissions Coordinator, (via — Parents

telephone) — Parents

PH.D Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12, 2020

Esq. Parent Attorney — Parents

PH.D Department of Education Representative — DOE

On or about September 17, 2019, I was appointed the Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. 1415(f)(1) in the matter of JY. The parties moved to extend the compliance date during the course of the proceeding. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter.

Accordingly, the request for extensions of the compliance were granted. Appended to the record is a list of documents submitted into the evidence.

A hearing request was filed on September 9, 2019. The parties appeared for hearing on February 4, 2020, February 26, 2020 and November 12, 2020. At hearing, the Department of Education (DOE) conceded the issue of whether a Free Appropriate Public Education was provided and submitted documentary evidence but no witness testimony. The Parent provided evidence including but not limited to the direct testimony by affidavit of Ms. , Coordinator of Admissions at , and of mother, (Parent). The DOE cross examined both witnesses at hearing.

The Parent now seeks direct payment to ( ) of any unpaid tuition and expenses in connection with attendance over school year 2019-2020, as well as reimbursement to the Parent of any amounts paid therefor; an order compelling the DOE to continue to provide the special transportation accommodation of limited time on the bus; and an order compelling the DOE to reconvene a CSE to amend IEP to include any and all transportation accommodation requests presented at that time, including but not limited to limited time on the bus.

Factual Background and Procedural Posture

is years old and is classified by the NYC DOE as having an Other Health Impairment (Ex. 2). He is diagnosed with Sanfilippo syndrome, a rare, terminal neurodegenerative disorder, and exhibits a range of delays and deficits including but not limited to expressive and receptive language delays, articulation deficits, cognitive and developmental delays, and executive functioning deficits (Exs H-1, G-3, G-6 through G-14). received Early Intervention services at 22 months old (Ex. G-3). He attended preschool in a special education class at and transitioned to an ICT classroom at , for kindergarten (Ex. G-3). He remained at through the fifth grade, or school year 2018-2019, but transitioned to a self-contained 12:1:1 classroom before the second grade (Ex. G-3).

On October 5, 2018, the CSE met and recommended a self-contained 12:1 setting for (Ex. 2). That fall 2018, in preparation for transition to middle school the following school year, the Parent applied to the only middle school in their area with a self-contained 12:1 program, , as part of their public school choice program (Ex. H-2). was accepted to the program, but at the end of the school year, in June 2019, the teacher of the program at determined that would not be a good fit after all (Ex. H-3). The Parent called the principal to find out what other options were available at their site, and the principal suggested applying to have placed in the school’s Academic, Career, and Essential Skills (

“ ”) program.

most recent IEP, dated June 25, 2019, continues the same recommendation of a 12:1 special class with the related services of occupational therapy, speech-language therapy, and a group paraprofessional, as well as assistive technology in the form of an iPad (Ex. H-2).

On July 2, 2019, it was determined that did not meet the criteria for the program at (Ex. H-3). Without a public school option for as the start of the 2019-2020 school approached, the Parent privately placed (Ex. H-3).

On August 22, 2019 the Parent by their attorney provided the DOE with a 10-day notice of their intention to place at if the DOE could not provide an appropriate public placement (Ex. B-11). The DOE did not respond to that letter and/or to the Parent’s concerns, so began attending in September 2019 (Exs. H-4, E, I-4). During attendance at , the DOE has continued to provide his assistive technology, consisting of an iPad with communication software for school and home use, and it has provided special transportation to and from consisting of limited time on the bus (Tr. 47, 48, 116-118; Ex. H-2).

On February 4, 2020, the DOE appeared without witnesses, having informed the parties by email the night beforehand that his two witnesses had become unavailable indefinitely (Tr. 6-

7). The DOE was granted the DOE’s request for an adjournment over the Parent’s objection (Tr.

28-29, 31, 33). On February 26, the DOE offered exhibits 1-11 but no witnesses, and the Parent offered exhibits A-I, including the direct testimony by affidavit of Ms. , Coordinator of Admissions at , and of the Parent . (Tr. 43-44). All exhibits were admitted without objection (Tr. 41, 43-44). The DOE stated it would not present a “Prong I case” but reserved the right to challenge the appropriateness of the Parent’s placement and the equities of their requests for relief (Tr. 45). The Parent asserted that the DOE’s offer of documents without witness testimony was a failure to meet its burden and that furthermore its equities assertions the day of hearing were untimely and should not be permitted, as the DOE had not previously raised any concerns or allegations regarding Parent’s failure to cooperate (Tr.

46-47). The Parent engaged in a brief direct examination. The DOE called both Parent witnesses for cross examination.

Legal Framework

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et. seq. (“IDEA”), and related federal and state statutes. “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education ... designed to meet their unique needs ... (and) to ensure that the rights of children with disabilities and parents of such children are protected.’”

M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d. Cir. 2012) (quoting 20 U.S.C. §

1400(d)(1)(A)-(B)).

Where deprivation of FAPE is found, or conceded as it has been in this case, the IDEA allows a hearing officer broad discretion to fashion equitable relief. Florence County School Dist. Four v. Carter By and Through Carter, 510 U.S. 7, 15-16 (1993), citing 20 U.S.C. §

1415(e)(2); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 374 (1985). The IDEA further contemplates the equitable award of private tuition payment where, as here, parents of students covered under the IDEA have unilaterally placed the student privately in response to the DOE’s failures to provide the student with a FAPE. Burlington, 471 U.S. at 373-74 (1985); Carter, 510 U.S. at 14 (1993); 20 U.S.C. § 1412(a)(10)(C). Under the Burlington-Carter three-prong assessment, parents are entitled to reimbursement of private placement if: (1) the DOE failed to offer the student a FAPE; (2) the private schooling obtained by the parents is appropriate to the child's needs; and (3) equitable considerations support the plaintiffs' claim. Forest Grove v. T.A., 557 U.S. 230 (2009); Carter, 510 U.S. 7 (1993); Burlington, 471 U.S. 359 (1985); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006); 20 U.S.C. § 1412(a)(10)(C).

“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, in that

‘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.” SRO No.

12-135, quoting Burlington, 471 U.S. at 370-71, and citing 20 U.S.C. § 1412(a)(10)(C)(ii); 34

CFR 300.148.

More recently, courts have held that substantive inadequacy of a proposed placement

"automatically entitles the parents to reimbursement,” C.F. v. NYC Dept. of Educ., 746 F.3d 68, 78 (2nd Cir. 2014) (quoting R.E. v. NYC Dept. of Educ., 694 F.3d 167, 190 [2nd Cir. 2012]), and that the broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of payment remedies, whether reimbursement, prospective payment, retrospective payment, or any direct payment scheme under which the DOE would make the student’s tuition payments in the place of the parent. E.M. v. NYC Dept. of Corr., 758 F.3d 422, 453 (2nd Cir. 2014). See also Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011), and Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), holding that when a private school enrolls a student in its program prior to receipt of payment by the parent, on agreement that the parent will pay, a parent who fulfills the reimbursement test may be awarded prospective funding to the private school.

The DOE bears the burden of proof for all matters at issue in the hearing other than the appropriateness of the parental placement, for which the burden of proof lies with the parents.

Educ. Law § 4404(1)(c); See M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010). Notably, the DOE’s contention referencing inability to provide a FAPE based on Parent’s request that be provided an assistive device furnished by the DOE is moot. Parent withdraw the aforesaid claim. (Tr. 147-148)

The DOE failed to provide a FAPE to

The DOE stated that it would not be presenting a case with respect to the Burlington- Carter Prong I analysis (Tr. 45). Although it provided documentary evidence, it appears that it did not offer into evidence the IEP at issue, dated June 25, 2019. At hearing on February 26, 2020, the Hearing Officer remarked, “so DOE failed to provide FAPE,” to which the DOE representative replied “Okay” (Tr. 109). The DOE thus conceded that it failed to provide a FAPE to for school year 2019-2020, and no discussion of Prong I is warranted here.

Although the substantive inadequacy of the DOE’s failure to provide any IEP at all to over the time frame at issue "automatically entitles the parents to reimbursement," C.F., 746 F.3d at 79 (quoting R.E., 694 F.3d at 190), the second and third prongs of the Burlington-Carter Test are nonetheless satisfied here.

is Appropriate to Educational Needs

In order for a private placement to be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), the issue ultimately turns on whether the private placement “is ‘reasonably calculated to enable the child to receive educational benefits.’” Frank G. v. Bd. Of

Educ. of Hyde Park, 459 F.3d at 364 (quoting Rowley, 458 U.S. at 207). “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.” Id.

[C]ourts 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.

Id. (citations and internal quotation marks omitted).

The testimony and documentary evidence provided by the Parent establish that their private placement of reasonably served his individual needs over school year 2019-2020, enabling him to receive educational benefits, as follows:

is diagnosed with syndrome, Type C, a terminal neurodegenerative disease (Ex. G-1). He is a generally pleasant, social, and outgoing boy with cognitive, developmental, language, and some behavior delays (Ex. G-13). He wears hearing aids due to hearing loss (Ex. E-7). He exhibits severe expressive language deficits including but not limited to simplistic expression, weak articulation/low intelligibility, slow word finding, and tangentiality in both academic and social expression (Ex. G-6, G-7, G-12 to G-13). His receptive skills are relatively stronger but marked by difficulty understanding complex language and following language-based directions (Ex. G-8). Though he is verbal, he requires an augmentative and assistive communication (“AAC”) device for times when oral communication just isn’t possible for him (Exs. H, ¶ 5. I ¶ 19; Tr. 79-80).

demonstrates significantly stronger visual perceptual reasoning and nonverbal problem solving skills as compared to his language-based skills (Ex. G-7 to G-8, G-11). He struggles with executive functioning weaknesses including attention and concentration, impulsivity, and self-help skills (Ex. G6, G-7, G9 to G-10). Academically, he functions at about a first grade level in both reading and math (Ex. G-11 to G-13). Because of the degenerative nature of his disease, his current needs will continue to deepen, and he will develop new needs over time (Ex. H, ¶ 13; Tr. 82). Specifically, for example, it can be expected that his attention, cognition, speech, hearing, sight, and mobility will continue to decline (Ex. H-1, E-5 to E-6).

Thus, he requires ongoing monitoring and assessment of his needs.

The program and supports offered generally by include the following: A small school setting with 32 total students, all with special needs stemming from diagnoses including but not limited to Down syndrome, autism, ADHD, genetic disorders, speech/language impairments, and seizure disorder, as well as some who are classified as students with multiple disabilities; a specialized and individualized curriculum aligned with New York State Common Core standards; a full range of related therapies; a full-time registered nurse on staff; two Board-certified behavior analysts on staff; assistive communication services; a facility equipped with special features such as sensory spaces, special lighting and sound features, and an elevator; monthly parent workshops; and more (Ex. I, ¶¶ 5-8; Tr. 62-67).

At . is grouped with one to four other students for reading and math, and with nine other students for all other subjects (Ex. I, ¶¶ 12, 16). The groupings are made based on various assessments of individual skill levels; as such, groupings can differ from subject to subject and fluctuate throughout the year according to progress (Ex. I, ¶¶ 11, 12; Tr. 71-72, 73).

classroom has one teacher and two assistant teachers, and many of the students have a one- to-one paraprofessional (Ex. I, ¶ 16). reading and writing teachers are different from his classroom teacher; his reading teacher is a NYS-certified special education reading specialist, and his writing teacher is a NYS-certified special education teacher (Tr. 78). His classroom teacher has a B.S. in speech, language and hearing and has nearly completed her M.Ed. degree in Special and General Education Grades 1 through 6 (Ex. I, ¶ 16; Tr. 76-77). The assistant teachers are Level 3 certified (Tr. 76-77).

receives daily instruction in reading, math, writing, social studies, and science using the Attainment Curriculum, leveled literacy intervention, and GO Math (Ex. I, ¶ 17). He receives weekly instruction in adaptive physical education, art, yoga, music, cooking social skills, and community engagement (e.g., “supermarket” skills) (Ex. I, ¶ 17). In addition to highly individualized special instruction, receives speech therapy three times a week, occupational therapy three times a week, counseling once a week, and hearing education services twice a week (Ex. I, ¶ 18). furthermore does its part to contribute to the close monitoring and assessment of disease progression which he uniquely requires. For example, his hearing specialist helps track possible progression of his hearing loss (Ex. H, ¶ 13). His speech therapist once noticed that his speech was “gurgly” because of “increased oropharyngeal secretions” and recommended a Modified Barium Swallow to “rule out signs or symptoms of aspiration and to instrumentally assess [ ]’s oropharyngeal swallow pattern due to the progressive nature of 's deficits” (Ex. E-6).

As to the last piece of Prong II, the evidence shows that made progress at over school year 2019-2020. A quarterly progress report covering September 2019 to December 2019 provides that he made steady progress in his ability to comprehend the steps to add and subtract with regrouping (Ex. E-1); reading accuracy and fluency (Ex. E-2); activities of daily living and following classroom routine (Ex. E-3); fund of emotional vocabulary, appropriate expression of feelings, and ability to use body-calming techniques when upset (Ex. E-4); and use of his AAC device to repair broken communications (Ex. E-5 to E-6). The Parent testified further that has exhibited greatly improved social skills, increased confidence, improved behavior, a greater ability to regulate his emotions, and increased community and daily living skills (Ex. H, ¶ 13).

As the foregoing plainly describes, the program receives at is appropriate under the Burlington-Carter test, in that it meets the requirements set out in the IDEA and relevant case law and has enabled to make progress.

The Equities Favor the Parents

As to the third prong of the Burlington-Carter analysis, the Parent submits that equitable considerations weigh in their favor.

The DOE conceded Prong I of its case, in part because there is no dispute that the DOE did not locate a school capable of implementing IEP prior to the start of the school year.

If Congress did indeed intend for Districts 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,” as the SRO asserts in No. 12-135, cited above, then a finding or concession of FAPE deprivation necessarily tips the equity of private tuition reimbursement by the DOE in the Parent’s favor.

Thus, once it is found that the DOE has deprived a student of a FAPE and that a parent’s private placement was proper under the Act, a tuition award may not be denied or reduced except under certain limited circumstances, none of which are met here:

1) at least 10 business days prior to the removal of the child from the public school, the parents did not give written notice to the public agency that they were rejecting the placement proposed by the public agency to provide a free, appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense;

2) prior to the parents’ removal of the child from the public school, the school district provided prior written notice to the parents of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or

3) upon a judicial finding that the parents’ actions were unreasonable.

20 U.S.C. §1412(a)(10)(C)(iii) (irrelevant clauses omitted; numbering not as in original). Finally, hearing officers have discretion to reduce tuition awards upon a showing that the cost of the private education was unreasonable. Florence County School Dist. Four v. Carter By and Through Carter, 510 U.S. 7 (1993).

The record demonstrates, the Parent did provide 10-day notice to the DOE describing their dissatisfaction with the IEP and with the DOE’s inability to locate a public school capable of serving and notifying the DOE of their intention to place privately if the DOE did not rectify the situation (Ex. B). The DOE did not respond to that letter to schedule evaluations or for any other purpose (and Parent witness Ms. testified that, if they had, she would have participated) (Ex. H, ¶¶ 12, 14, 15). The Parent made every effort to explore the school and programs recommended by the DOE but was turned away when administrators of the school deemed the programs inappropriate for (Ex. H, ¶¶ 8-10); their actions cannot be found unreasonable. Finally, the DOE did not proffer any argument and offered no evidence in support of the argument that tuition is unreasonable.

There is no cause to reduce any award of tuition based on any of the permissible equitable factors. Further, the Parent Ms. testified that, given the Parents’ limited financial resources, it would be an incredible hardship for them to pay the cost of education and to wait for reimbursement therefor (Ex. H, ¶ 16).

requires a limitation on the duration of his bus ride to and from the school (Ex. H, ¶ 18). The Parent Ms. testified that doctor submitted a medical accommodations form requesting this limitation, but regardless, ride was often up to two hours long each way according to his GPS tracker (Ex. H, ¶ 18; Tr. 132)1. The Parent contacted the CSE in follow-up (Tr. 131-132). By the time of hearing on February 26, 2020 the DOE had begun applying the limitation but without amending IEP (Tr. 48). At hearing, the DOE’s representative objected to the Parent’s request for relief on this issue and provided that he would contact the CSE and effectuate the amendment outside of an order (Tr. 48-53; 107-108); however, as of the November 12, 2020 that has not happened. The Parent thus requests an order requiring the DOE to continue to provide the travel time limitation and to reconvene a CSE to amend IEP to reflect the limited time travel accommodation.

Conclusion and Request for Relief

Therefore, for all the foregoing reasons, upon due consideration of the relevant factual posture as presented from the inception of this matter including and of utmost importance, testimony of Parent’s witnesses, I find the DOE deprived of a FAPE for the school year

2019-2020. The DOE failed to provide a FAPE, placement and services provided to were appropriate and continued to remain as such under the circumstances for which his providers needed to adapt remotely due to Covid-19 during the entirety of the school year 2019 - 2020 and equitable considerations in Parent’s favor.

Accordingly, it is hereby ORDERED that the DOE shall make direct payment to in the amount of $86,918.00 for all amounts due and owing in connection with attendance over the school year 2019-2020, direct reimbursement to the Parent of $500.00 for expensed pain in connection with tuition and attendance at during schedule year 2019-2020 and the CSE is directed to amend IEP to reflect and continue the travel limitations integral to transportation accommodations to and from .

Dated: December 17, 2020

Ellen Cutler-Igoe

__________________________________________

Ellen Cutler-Igoe, Esq.

Impartial Hearing Officer

EXHIBITS MARKED INTO EVIDENCE – FEBRUARY 26, 2020

Parent

Exhibit Description Pages

A Due process complaint, 9/9/19 8 pages

B Ten day notice, 8/22/19 6 pages

C contract, 8/14/19, 5 pages

D Student Schedule page

E Student Progress reports, 12/2019 8 pages

F 2018/2019 1 pages

G Neuropsychological Evaluation, 8/26/16 21 pages

H affidavit, 2/26/20 6 pages

I Affidavit, 2/24/20 3 pages

Department of Education

1 Due Process complaint, 9/9/19 8 pages

2 IEP, 10/5/18 17 pages

3 Psychological evaluation, 10/4/18 3 pages

4 Not Entered into Record (disclosures omits documents)

5 Assistive technology evaluation, 6/18/19 7

6 Augmentative Communication Trial, 4/9/19 2

7 Attendance, 6/18/19 1

8 Assistive Device Referral, undated 7

9 Occupational and Physical Therapy Guide, 10/5/18 1 10 Prior written notice, 6/27/19 4

11 Ten-day notice, 8/22/19 6

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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://www.sro.nysed.gov.

1 Parent’s attorney provided that the form itself was mistakenly excluded from timely disclosure, and DOE’s representative declined to waive the 5-day rule to allow its inclusion despite agreeing to effectuate the IEP amendment (Tr. 48; 49-53, 107-108).