New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 188660

Student’s Name:

District:

Hearing Requested By: Parents

Date of Hearing: 10/11/19; 1/7/20; 3/19/20; 5/18/20;

6/29/20; 8/3/20; 9/23/20

Record Close Date: 9/25/20

Hearing Officer: L. Almeleh, Esq.

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

-against-

Findings of Fact

The New York City Department of Education Case # 188660

Procedural Context

On September 10, 2019 I was appointed to hear the matter of versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Act, 20 U.J.F. Section 1415 (f)(1).

On October 11, 2019 a hearing on pendency was held and an Interim Order of Pendency issued thereafter.

Thereafter, the matter was continued to January 7, 2020; March 19, 2020; May 18, 2020; June 29, 2020; August 3, 2020 and September 23, 2020. On this latter occasion, the proceedings were closed, and no further testimony taken. As a result, the timeline was duly extended. It is noted that this is a Parental request seeking tuition reimbursement pursuant to a unilateral transfer. Although an Interim Order of Pendency exists, the Department of Education has not reimbursed the child’s providers in full.

Specifically, the Parent asserts that the Department of Education failed to provide an appropriate educational placement for and therefore stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3]. Exhs. A.

Prior to the commencement of the within action, it became clear that the Department of Education would not be producing any witnesses. The last IEP for this child is dated December 13, 2018. Exh. 1. The IEP commences as of January 7, 2019 and an annual review was mandated by December 6, 2019. While the CSE did, in fact, prepare an IEP for , a placement was never identified. Exh. 1. Consequently, the Parent was compelled to re-enroll her child at (hereinafter “ ”).

Under these circumstances, I find that the Department of Education has not met its prong one burden consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985].

Therefore, the only issue in this matter concerns the appropriateness of the Parents’ unilateral placement and the equitable issues related thereto. Relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985], the Parent maintains that the (hereinafter “ ”) was an appropriate placement during the 2019-2020 school year and that there are no equitable factors which would preclude their right to reimbursement.

It should be noted that subsequent to my appointment and consistent 34 C.F.R. Sect. 300.515[a] and 8 NYCRR 200.5[j][5]), several extensions of the timeline were granted. These extensions were based upon considerations of anticipated testimony, scheduling of witnesses and mutually available dates. At the commencement of the 2019-2020 school year, the student was approximately eighteen years old.

A list of persons in attendance and of evidence is appended hereto.

Summary of the Facts

The student has a recent history of psychiatric intervention and has been treated for a generalized anxiety disorder, major depressive disorder and social phobia. Exhs. 7, 8 passim. On occasion, these symptoms are somaticized and the student has experienced panic attacks with shortness of breath as well as abdominal pain. Exhs. C, D. These issues began in ninth grade and as time elapsed, emotional stability deteriorated and his inability to function at school escalated. Ultimately, the student became school phobic, attending classes late or not at all. In December 2017 and June 2018, was evaluated by a psychiatrist who determined that the student was clinically depressed and emotionally fragile. Exhs. 7, 8 passim. At this time, the clinician noted that the student was cognitively intact but presented as nervous and sad. Although is generally cooperative, he becomes frustrated and easily upset when challenged by academic tasks and especially those which are timed. As a result, the child has a poor attitude towards school, feelings of inadequacy and poor self-reliance. Both the psychiatric and psychological evaluations recommend extensive test modifications and emotional support along with a small student-personnel classroom ratio. The Parent noted that, although she agreed with the Department’s IEP and its recommendation, she never received a placement for the 2019-2020 school year. As a result, remained at , a school where he was improving both academically and emotionally.

is the Director of the at . is licensed by New York State as a school psychologist and special education teacher. He presently serves as the Director of the (hereinafter referred to as “ ”) at . He noted that is a program for cognitively intact students who exhibit learning difficulties and require smaller classes and significant support. Support may be provided in pull-out form or inclusively within class. As the Director, described the services offered by the School, noting that there are approximately 200 students in its upper school of which approximately 50 are enrolled in the . The witness testified that most of the students have IEPs although not all. Beyond this, many of the students demonstrate generalized anxiety and school avoidance issues which have resulted in school phobic/ truant behavior. While the students are cognitively intact, they may require additional emotional support, instructional enrichment or executive coaching.

is a co-educational program which includes various academic and psychological supports for its student enrollment. Classrooms are student-centered and provide a variety of learning activities which reflect the needs and strengths of each student. Classes are small and are taught by special educators. In addition, and its personnel receive intense in-service professional development and training. Classrooms generally consist of no more than ten to fifteen students. Tr. at 64-66. When necessary, additional student support services are offered, including tutorials, counseling sessions and ad hoc mentoring. During the 2019-2020 school year, received instructional and testing modifications tailored to his needs and his propensity for perfectionism. noted that was seen by a school psychologist on an as needed basis. On some occasions this occurred frequently throughout his school day. attended additional support periods at lunch or after school on nearly a daily basis. Many of teachers functioned as both academic instructors and emotional therapists. Much of the intervention directed at involved supportive counseling to alleviate the student’s anxiety and ease his ability to function within the classroom. Finally, as the student related positively to music, was introduced to the School’s music teacher and participated in band. This became a strong motivator for the student.

students at are additionally provided with a mentor who addresses, on an individual basis, the development of skills which facilitate organizational and planning activities as a means of coping with academic demands. The witness referred to this as “therapeutic tutoring,” as the purpose of this intervention was to develop strategies which would address anxiety while acquiring control over assignments. In addition, met formally with his mentor three times a week and as needed. The witness noted that frequent collaboration and consultation among personnel occur for each student, a benefit of the small, intimate setting. Beyond this, social struggles were addressed through facilitated social interactions in order to help feel more comfortable with his peers and develop appropriate friendships. As time elapsed, the student’s strengths included his positive participation in class, his strong written expression and higher-level comprehension of materials.

Significantly, had become far more independent in his ability to function appropriately within an academic environment and was now showing greater initiative.

testified that he was familiar with , having been instrumental in the child’s admission to the . The witness was additionally responsible for reviewing the student’s records and developing an educational program which would address emotional and academic needs. As the Director, he has had frequent opportunities to interface with the student’s teachers and therapists.

Reviewing the student’s final report card for the 2019-2020 school year, testified that had made significant academic progress. The student was now attending school full-time, was able to complete Regent’s level courses with excellent grades and had begun to form positive social relationships with his peers.

The witness indicated that, due to the Covid-19 virus, classes for continued remotely in the spring of 2020. The student was very successful with this modality as he had already established positive learning habits and had strong connections to his teachers. Beyond this, was very determined to graduate from high school and begin college. Ultimately the student graduated in June 2020 and began Hofstra

University in September. In sum, opined that was an appropriate setting for Review of the Law

It is clear that the legislative intent of 20 US Code Section l4l5 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-

9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S.

359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel v. State

Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp.

2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). As the Department essentially defaulted by virtue of its lack of witnesses and evidence, I find that they have not established FAPE.

Was an Appropriate Placement for during the 2019-2020 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict'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, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). 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 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 (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "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 only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. 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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the program offered at correlates well with the student’s functional needs. The child’s weaknesses are addressed daily through small group instruction and intensive emotional support. This is entirely appropriate for the student and his clinical depression, anxiety and school phobic behavior. The student, moreover, participates with peers whose functional profiles are consistent with his own and additionally has the opportunity to participate with his mainstream peers when this can be a meaningful experience.

ability to function appropriately in an academic setting is achieved through various accommodations and modifications offered through the . These include small group instruction in which repetition and review occur. Extended time and modification of assignments is also implemented so that perfectionism does not interfere with academic success. Extracurricular support classes are offered at least twice a day in addition to intensive 1:1 mentoring. Even content area personnel are highly trained in the area of special education in order to work more effectively with the student population. In addition to all this, described the social/emotional component of the culture, noting that almost all of its teachers have additional training in psychology and utilize these skills within the context of their classrooms as well as beyond. Intense emotional support is constantly integrated into the fabric of the curriculum, even when not expressly stated. This has resulted in an ”open door” policy of , a policy which enables immediate emotional support as needed. For , this has been instrumental in his ability to attend classes and function through the day successfully.

“[U]ltimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In this respect, testimony regarding the student’s progress is credible and uncontroverted and I find that and its were appropriate education educational setting for during the 2019-2020 school year.

Have the Parents met their prong three burden consistent with Burlington, supra?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 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"]). 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]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y.

Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F.

Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing 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][iii][I]; 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. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Clearly, the Parent attempted to work cooperatively with the Department of Education. She shared private evaluations with the Department and was proactive in seeking a solution when it appeared that no educational placement or referral was forthcoming. The Parent gave due and proper notice that she was re-enrolling at . Exhs. A, E. Indeed, it is likely would have considered a public placement as had long been enrolled in public schools. It was the Department’s deaf ears which ultimately drove the Parent to seek a non-public placement for her son. In view of the above, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Conclusion

For the reasons cited above, I find that the Parent’s request must be granted.

Wherefore, it is hereby ordered that:

The Department of Education shall make direct payment to for all tuition expenses incurred for during the 2019-2020 school year. Direct payment in this matter is consistent with Connors v. Mills, 34 F. Supp. 2nd 795 (N.D.N.Y.) These payments shall represent the Department of Education’s total liability for academic expenses during the 2019-2020 school year. Tuition payment for the 2019-2020 school year shall be reduced by any payments already submitted and paid by the Department of Education.

Dated: September 25, 2020

Leah Botwinik Almeleh, Esq. ___________________________________________

Leah Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on September 24, 2020

For the Parent:

, Esq.

, Parent

, Director of at Prep (via telephone)

For the Department of Education

, District Designee