NY IHO #193148: New York City... | Special Education Law

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CASE NUMBER: 536238 - NYC: 193148

FINDINGS OF FACT AND DECISION

Case Number: 193148 Student's Name: REDACTED Date of Birth: REDACTED District: REDACTED

Hearing Requested By: Parent

Date of Hearing: 08/26/2020 Pre-Hearing Conference

09/11/2020

Actual Record Close Date: 09/22/2020 Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/26/2020

For the Student:

REDACTED., Attorney (Via Telephone) For the Department of Education: REDACTED., Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/11/2020

For the Student:

REDACTED., Attorney (Via Telephone)

REDACTED, Parent (Via Telephone)

REDACTED, Director, The REDACTED (Via Telephone)

REDACTED of Education:

REDACTED., Attorney (Via Telephone)

DOCUMENTATION ENTERED INTO THE RECORD PARENT

ENTERED 08/26/2020

A Hearing Request, 03/10/2020, five pages ENTERED 09/11/2020

B Ten-day notice and confirmation, 6/17/19, four pages C Tuition deposit check, 6/27/19, one page

D Progress report, June 2019, 15 pages E Enrollment contract, 7/2/19, six pages

F Class schedule for summer 2019, July 2019, one page G Attendance report, 8/13/19, one page

H Class schedule for 2019/2020 school year, September 2019, one page I Progress report, December 2019, 12 pages

J Affidavit of Parent with attached receipt, 3/6/20, two pages

K Email from REDACTED and attached physical activities packet, 3/13/20, ten pages L Virtual schedule, 3/23/20, one page

M Tips for parents during COVID, Undated, one page

N Home activities from speech and language department, Undated, two pages O REDACTED remote learning information, 6/15/20, one page

P September to June attendance report, 6/18/20, one page Q Progress report, June 2020, 15 pages

R Tuition affidavit, 7/31/20, one page

S NYC DOE meals webpage, 8/6/20, four pages

T Affidavit REDACTED, Senior, 12/3/20, five pages U Affidavit of REDACTED, 9/3/20, eight pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER ENTERED 08/26/2020

I Notice of Appointment, 08/17/2020, four pages ENTERED 09/21/2020

II Parent Closing Brief, 09/21/2020, 6 pages III Newspaper Article, 09/06/23017, one page IV DOE Closing Brief, 09/21/2020, six pages

INTRODUCTION

On 08/17/2020, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing conference was held on 08/26/2020 and Hearing conducted on 09/11/2020. Appended to the record are lists of persons in attendance and the documents received in evidence. Parent filed Due Process Complaint (DPC), dated 03/10/2020. (Ex A)

Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2019-2020 school year. (Ex A 1)

Parent allegation includes neither an Individualized Education Program (IEP), nor placement offer was in place for the 19-20 school year. (Ex A)

“The DOE denied [Student] a FAPE for the 2019-2020 school year. First, the DOE did not conduct an annual Individualized Education Program (IEP) meeting or develop an IEP for [Student] for the 2019-2020 school year. Second, the DOE did not offer [Student] a placement for the 2019-2020 school year.” (Ex A 4)

Parent seeks relief that includes an Order directing the DOE to:

“1. Pay for [Student] to attend the [UP] (Unilateral Placement/UP) for the 12-month 2019-2020 School Year;

• Immediately reimburse [Parent] any tuition already paid to the REDACTED for the 12-month 20 19-2020 school year;
• Provide [Student] with transportation to and from the [UP] throughout the 12-month 2019-2020 School Year;
• Beginning on the first day of attendance, provide [Parent] with reimbursement for the cost of school breakfast and lunch while attending the [UP];
• Provide any other relief deemed appropriate by the Impartial Hearing Officer.” (Ex A 5)

THE PARENT’S POSITION

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent Attorney argues that the DOE denied the Student a FAPE for the 19-20 school year, UP is appropriate, and DOE funding is appropriate relief, inclusive of the cost of meals. (T 29-33)

Parent presented testimony via Affidavit. (Ex T & U)

DOE cross examined the witnesses relative to their Affidavits as reviewed below.

T Affidavit of REDACTED, 12/3/20, five pages Additional testimony included:

A description of the DIR Model (T 49-51); “DIR is…its own methodology, and it's the umbrella of what we use, and yes, there is training in DIR and certifications in DIR and an expectation about how you're going to work with the student…And then, we also incorporate academic curriculums and every discipline, OT, PT, speech, and counseling, also are using their methodologies, just under the DIR umbrella” (T 52); Witness reviewed how the DIR model is implemented to address Student Special education needs, such as slower processing (T 52-55); Student class has nine students and five adults (T 58); Student has a sensory diet throughout the day, for with classroom staff are trained (T 59-60); Witness confirms Student is in eight grade and has significant needs (T 64); Student goals are created by a team via progress reports, goals, and a treatment plan connected to those goals (T 71); Student goals are reviewed and a treatment plan developed for the following year (T 71-72); referring to Student schedule, Witness states that academics are given throughout the day (T 74-75, Ex H); Witness set forth several areas of Student difficulty in Reading (T 76- 77); UP closed in March due to Covid, a schedule was created to deliver remote learning (T 77-78); UP participates in the supplemental schools meals program, to which students need to apply (T 78-79);

U Affidavit of REDACTED, 9/3/20, eight pages Additional testimony included:

A belief that Student classmates are appropriately grouped (T 40); witness has seen teacher modify work for the Student and set forth examples (T 40-43); Student participated in an internship through the UP (T 43-44); Witness has assisted the Student during remote learning (T 44); Witness described modifications which took place during remote learning “in an effort to engage [Student] to some of the live instruction, in which they integrated some of his passions and gave him shoutouts…” (T 45); Student was provided DOE bussing to and from school prior to the Covid Pandemic (T 45); and Parent attended an IEP meeting in April of 2020 (T 46).

Regarding Parent relief sought of funding for Student meals, the Parties made brief arguments on the Record. (T 80-82)

Ultimately, IHO allowed Parties to submit Closing Briefs to address the issues related to funding for Student meals. (T 85)

DEPARTMENT OF EDUCATION POSITION

DOE Representative appeared at Hearing of 09/11/2020, submitted documents, and presented no direct case in defense of the Parent’s allegations contained in the DOE. (T 22)

DOE Representative did make various arguments as reviewed herein.

DOE sought to enter several documents into the record which were found not to be relevant in determining an offer of FAPE for the 19-20 school year. These documents were excluded. (T 27-29)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug.

21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F.

Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch.

Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13- 14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2019-2020 School Year

DOE opted to present no defense to the Parent’s allegations. (T 22, Ex A)

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer the Student a FAPE.

I find the DOE failed to offer the Student a FAPE for the 2019-2020 school year.

UP 19-20 School Year

Testimony and documentary evidence support UP as an appropriate Student placement for the 19-20 school year.

Parent evidence sets forth areas of Student special education need, services to address those needs, appropriateness of Student program, as well as progress. Supportive evidence is set forth below:

A Hearing Request, 03/10/2020, five pages

Parent sets forth allegations of denial of FAPE for the 19-20 school year, and relief sought.

Regarding the UP, Parent contends it is appropriate, arguing that it is: “…a non-approved private school, is appropriate for [Student]. The [UP] has in-depth knowledge in educating students with ASD-related sensory needs, like [Student]. The school provides him with his needed sensory supports and equipment and has staff trained in addressing dysregulation. These interventions help him to maintain regulation or re-regulate so that he is able to access the educational curriculum. The school provides him with the small student to adult ratio that he needs so that he can receive the attention, co-regulation, and curricular support that he needs. The school groups him with similarly functioning peers and teaches him at his level. The school also provides him with all of his needed related services including speech-language therapy, occupational therapy, and counseling. Finally, the school addresses his challenges in functional independence and activities of daily living through its travel training and internship programs. For these and other reasons, the [UP] is an appropriate placement for [Student]: (Ex A4)

Parent also seeks funding for meals, arguing: “[Student] would qualify for school meals were he to attend a DOE public school. The [UP] does not provide school meals to students. Consequently, [Parent] is forced to purchase breakfast and lunch for [Student] this school year. The DOE’s failure to provide or pay for [Student]’s breakfast and lunch while he attends the [UP] because of his disability violates Section 504 of the Rehabilitation Act. Reimbursement to [Parent] for the cost of [Student]’s breakfast and lunch for the 2019-2020 school year is a reasonable accommodation.” (Ex A 4)

D Progress report, June 2019, 15 pages

UP Progress Report from the 18-19 school year, reports Student academic and Related Service areas of need, goals, and progress. For the 19-20 school year this was used to develop goals for the Student. (T 71- 72)

E Enrollment contract, 7/2/19, six pages

Sets forth 19-20 Tuition as: $135,440.00. (Ex E 1) Obligates Parent to payment of Tuition. (Ex E 4-5) Includes Deposit amount of $2,500.00 (Ex E 5)

Includes deferral of Payment, in consideration of Parent financial status, until the conclusion of the Hearing Process. (Ex E 5-6)

F Class schedule for summer 2019, July 2019, one page Student’s Academic and Related Therapy Schedule.

H Class schedule for 2019/2020 school year, September 2019, one page Student’s Academic and Related Therapy Schedule.

I Progress report, December 2019, 12 pages

UP Progress Report from the 19-20 school year, reports Student academic and Related Service areas of need, goals, and progress.

Included in the Report are:

General Program Description of Student services: “a 13.5-year-old student who attends the [UP], which utilizes the Developmental Individual Difference Relationship-based® (DIR®) model. [Student] transitioned to REDACTED class in July 2019. [Student] is in a 9: 1:4 classroom with eight other peers ranging between I 3 to 19 years old. He is in a class with mostly novel peers and staff. [Student] is also in many groups with novel and familiar peers from a neighboring classroom. [Student]'s individualized weekly program consists of Floortime™ sessions, reading, math, social studies, science, health, visual-spatial activities, sensorimotor activities, activities of daily living, and community integration. [Student] also participates in a weekly music group which is facilitated by a music therapist and an art group led by an art therapist. [Student] receives occupational therapy, speech-language therapy, individual counseling, and adaptive physical education as a part of his individualized program. Additionally, [Student] participates in a weekly internship at Adaptive Design. [Student] is a verbal student, and when regulated, he is able to communicate using full sentences. When [Student] becomes dysregulated, his ability to communicate verbally with others decreases, and he uses gestures, vocalizations and facial expressions in order to communicate his wants and needs. [Student] typically functions at Capacity I (regulation and shared attention), Capacity 2 (engagement and relating) and capacity 3 (two-way purposeful communication). At his best, and when engaged in an emotionally meaningful activity or interaction with a preferred peer or adult, [Student] is able to reach Capacity 4 (shared social problem solving), Capacity 5 (creating symbols and ideas), and Capacity 6 (building logical bridges between ideas). Utilizing the DIR® methodology, [Student]'s program continues to focus on strengthening his foundational capacities in order to increase his ability to function at the higher capacities with more consistency across a wider range of people, environment, and activities. Below is a detailed update of his developmental progress.” (Ex I 1)

Student Functional and Emotional Developmental Capacities broken down. (Ex I 1-4)

For example, Student: “has demonstrated progress in his ability to connect his ideas logically while discussing an emotionally meaningful topic with a preferred adult, such as interactions with preferred peers.” (Ex I 4)

Student Curriculum is detailed in areas of:

Literacy “focused on supporting [Student]'s engagement in his literacy group, building comprehension of texts read aloud ( e.g. sequencing, making inferences, compare and contrast, cause and effect reasoning), expanding vocabulary, and promoting symbolic thinking. Since June, [Student] has communicated an increased motivation to learn how to read and is currently being supported to receptively identify sight words of interest or emotional meaning to him (up to 10 words) when presented to him in a field of three” (Ex I 4);

Mathematical and Scientific Thinking: “This curriculum utilizes hands on manipulatives, visual supports, differentiation and structured problem-solving activities to build root math concepts including counting, place value, comparison, computation and number properties. [Student] is currently working on chapter four. Core math concepts in chapter four include solving addition and subtraction sums, exploring two dimensional shape concepts including types of angles and various shapes, and mastering place value” (Ex I 5); “While regulated and with maximal staff support, utilizing the DIR® methodology (e.g., by providing narration, scaffolding, increased processing time), [Student] has been practicing solving simple addition word problems” (Ex I 6);

Travel Training: “[Student] shows a good understanding of community safety. He stays with the group, and can identify and follow pedestrian crossing signals. [Student] is an emerging reader and when this travel trainer asks him to identify the group's current location by reading the street signs he puts his head down and avoids the question” (Ex I 7);

Occupational Therapy: “[Student] will accept the reporting therapist, begin interacting with her, and engage in OT activities (FEDC 1-3). Previously, [Student] would require up to 15 minutes before he was able to interact with the reporting therapist, demonstrating improved regulation and engagement within a new therapeutic relationship (FEDC 2 and 3). [Student]'s occupational therapy program continues to address sensory integration, motor planning and sequencing, fine and gross motor coordination, and visual spatial processing” (Ex I 8);

Speech Language Therapy: “[Student] has progressed in accepting co-regulatory strategies (e.g., sensory input, verbal narration of the interaction) following periods of dysregulation in support of returning to a state of regulation with increasing frequency (FEDC 1 ). He also continues to utilize meaningful relationships, as well as sensory activities to self-regulate across a greater range of emotions (FEDC 1 ). During structured activities ( e.g., math, reading), [Student] has grown in maintaining regulation throughout the duration of the interaction, when provided with moderate sensory support (e.g., seating arrangement, deep pressure input), as well as verbal narration; however, he continues to benefit from verbal supports, in the form of scaffolding and commenting to sustain shared attention and engagement during challenging group activities (FEDC 1-2).” (Ex I 9); and

Counseling: “therapist. Individual counseling predominantly utilizes the Developmental Individual Difference Relationship-based (DIR)®/Floortime ™ approach and play therapy principles to develop and strengthen [Student]'s Functional Emotional Developmental Capacities (FEDC), such as maintaining shared attention, engagement, and two-way purposeful emotional interactions with the therapist, as well as promoting his ability to explore his emotions in a therapeutic context” (Ex I 10);

K Email from REDACTED and attached physical activities packet, 3/13/20, ten pages Remote Learning Activities for the Student.

L Virtual schedule, 3/23/20, one page

Remote Learning Schedule for the Student.

M Tips for parents during COVID, Undated, one page Remote Learning suggestions regarding routine.

N Home activities from speech and language department, Undated, two pages Suggested Speech Language Student activities.

O REDACTED remote learning information, 6/15/20, one page

Remote Learning Plan, and support, for the Student via Zoom platform.

Q Progress report, June 2020, 15 pages

End of Year UP report of progress for the Student in areas of Academics and Related Services, detailed via Capacities For example: “Utilizing the DIRFloortime® methodology, [Student]’s best version of a continuous flow has a combination of non - verbal and verbal circles that are repeated over time, and typically involves a sensorimotor or gross motor game (e.g., chase game or running races), discussions around preferred topics (e.g., baseball, pretend play characters, such as “Chippy,” “Fluffy,” “Hoodman,” etc. ) with preferred indiv iduals, motivating, structured table top games (e.g., Chutes and Ladders, Uno, etc.) or repeated, predictable lessons with familiar classmates (e.g., creating a diorama with peers over the course of multiple reading group sessions). While regulated, [Student] can typically remain within this type of preferred interaction for approximately 25 minutes with minimal adult support, noting progress as compared to December.” (Ex Q 4)

Report also includes efforts to continue implementation of services, such as Mental Health Services, via remote learning: “In mid-March, [UP] transitioned to a virtual learning model, due to the COVID-19 pandemic. Following this transition, the therapist repeatedly reached out to [Student]’s family by email with session reminders and offers to check in about [Student]’s mental health, and provided support to the classroom social worker, teacher, and other related service providers in their attempts to reach [Student]’s family and help him access the virtual learning program. The therapist was able to speak with [Student]’s parent over video chat at the beginning of this transition. During the therapist’s conversation with [Student]’s parent, he reported that [Student] was coping well with the transition, and did not express any mental health concerns. However, the therapist was present on video chat for the duration of all of [Student]’s twice - weekly scheduled sessions, but he did not attend counseling at any point following the transition to a virtual learning model.” (Ex Q 13)

T Affidavit of REDACTED, 12/3/20, five pages

Parent testifies as to Student special education needs (Ex T 1-2); states neither IEP nor Placement was offered for the 19-20 school year (Ex T 2); Student enrolled at UP under Tuition Contract to which Parent is obligated (Ex T 2); Student has made progress at UP, during regular year and through Covid Remote Learning (Ex T 3-4); UP modifies curriculum for the Student (Ex T 5); funding is sought from the DOE for tuition and meals (Ex T 5).

U Affidavit of REDACTED, 9/3/20, eight pages

Testimony includes detailing general characteristics of the UP program and modes of instruction, such as DIRFloortime. (DIR) (Ex U 2)

Details UP staff, communication with Parents, staff training, and curricula. (Ex U 2) Programs are individualized for each Student, via DIR. (Ex U 3)

Students entering UP are assessed, and a program developed. (Ex U 4-5)

For the 19-20 school year, the Student was: in a class with eight other students, a head teacher and four teaching assistants, was part of the Transitions Program which included long term goals for community life with an academic experience; Student program was individualized and consisted of DID, academic and related services of speech language therapy, occupational therapy, counseling, art and music (Ex U 5); program continued remotely from mid March (Ex U 5-6); Student Reading program was multi-sensory and took place with peers of a similar level, supports included scaffolding, reminders and verbal encouragement. (Ex U 6); Student showed improvement in Math (Ex U 6); related service providers and teachers reported progress (Ex U 6-7); schedule was detailed and areas of progress specifically set forth (Ex U 7-8); Witness believes the UP was an appropriate placement for the Student for the 19-20 school year. (Ex U 8)

UP provided special education services specifically tailored to meet the needs of the Student.

I find UP provided an appropriate education and program for the Student for the 19/20 school year.

TUITION FUNDING 19-20 School Year

Parent is entitled to funding for the UP 19-20 Tuition.

Parent is not evidenced to have thwarted any effort by the DOE to offer Student a FAPE for the 1920 school year.

Supportive evidence includes:

B Ten-day notice and confirmation, 6/17/19, four pages

Parent appropriately notifies the District of alleged denial of FAPE for the 19-20 school year, and intent to place Student at UP, and seek DOE funding.

C Tuition deposit check, 6/27/19, one page

Parent evidences tuition deposit in the amount of $2,500.00.

R Tuition affidavit, 7/31/20, one page

Confirms Tuition amount of $135,400.00 for the 19-20 school year, and payment of deposit of

$2,500.00. Present balance $132,940.00.

G Attendance report, 8/13/19, one page

Student Attendance records, summer 2019.

P September to June attendance report, 6/18/20, one page Student Attendance for the 19-20 school year.

T Affidavit of REDACTED, 12/3/20, five pages

Parent testifies as to having to have taken out a loan for the $2,500.00 UP Tuition deposit. (Ex T 3)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs.

A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative. Parent provides information relative to their financial capability.

This includes taking a loan for the initial deposit (Ex T 3) and the Tuition Contract that includes deferral of Payment, in consideration of Parent financial status, until the conclusion of the Hearing Process. (Ex E 5-6)

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of GY and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

Parent establishes a denial of FAPE and appropriateness of UP.

I find the Parent establishes an inability to pay the full tuition and await reimbursement.

Parent entitled to reimbursement of $2,500.00 and direct payment of tuition balance as Ordered below.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks transportation services for the 19-20 school year.

Transportation need arise from the DOE denial of FAPE for the Student relative to the 19-20 school year. year.

Parent testifies that the DOE did indeed transport the Student for the 19-20 school year. (T 46)

I find the Student was indeed entitled to transportation as provided by the DOE for the 19-20 school

FUNDING FOR BREAKFAST AND LUNCH 19-20 SCHOOL YEAR

Parent seeks funding, via reimbursement, for the cost of Student breakfast and lunch while attending the [UP]. (T 29-33, Ex A 5)

Parent Attorney argues: “Parent also seeks funding for meals, arguing: “[Student] would qualify for school meals were he to attend a DOE public school. The [UP] does not provide school meals to students. Consequently, [Parent] is forced to purchase breakfast and lunch for [Student] this school year. The DOE’s failure to provide or pay for [Student]’s breakfast and lunch while he attends the [UP] because of his disability violates Section 504 of the Rehabilitation Act. Reimbursement to [Parent] for the cost of [Student]’s breakfast and lunch for the 2019-2020 school year is a reasonable accommodation.” (Ex A 4)

Parent presents evidence that includes:

J Affidavit of Parent with attached receipt, 3/6/20, two pages

Parent testifies that Student attends the UP, which offers neither school breakfast nor lunch to students. Student would qualify to receive free school breakfast and lunch if attending a public school.

Parent is purchasing and preparing Student food for breakfast and lunch for the 2019-2020 school year costing an average of $8.59 daily.

S NYC DOE meals webpage, 8/6/20, four pages

Submitted by Parent in effort to show free lunch is available to all Students.

“Support School Funding You do not need to apply for your child to receive meals. However, we do ask families to complete, which helps schools receive money for their programs. Your school will send a copy of this form home with your child, or you can get it from your school’s main office.” (Ex S 2)

Parent and DOE also submitted Closing Briefs regarding this issue. (IHO Ex II, III & IV) Seeking to support its argument, Parent Attorney points to C.D. v. New York City Department of Education, No. 05 Civ. 7945, 2009 WL 400382 (S.D.N.Y. Feb. 11, 2009). (IHO Ex II 4-5)

Therein: “In denying the DOE’s motion for judgment on the pleadings, the United States District Court for the Southern District of New York found plaintiffs had stated a claim under Section 504 that failure to provide them with school meals because they were placed at private schools constituted illegal disability discrimination. Id. at *14. The court emphasized that “[d]isabled students should not have to choose whether to learn or to eat, and the law does not require them to choose.” Id. at *7. The Court further found that reimbursement for the cost of meals could be a reasonable accommodation. Id. at *13. Since the court’s decision in C.D., impartial hearing orders have consistently required the DOE to reimburse parents of students with disabilities for the cost of breakfast and lunch when their children attend private school with DOE funding due to their disability.” (IHO Ex 4-5)

Parent argues that: “Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act. Section 504 provides that recipients of federal funds that operate educational programs or activities must “establish and implement... a system of procedural safeguards that includes…an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.” 34 C.F.R. § 104.36. The New York City Department of Education has established the Impartial Hearing process as the manner by which a parent may file a complaint concerning violations of Section 504. NYC Chancellor’s Regulation A- 710(VII)(c)(1)-(2) (January 20, 2011)” (IHO Ex 5)

Parent did advise the DOE of its intent to seek funding for meals via Ten Day Notice Letter, of 06/17/2019: “[Parent] is further requesting that the DOE provide or pay for [Student]’s breakfast and lunch during the 20 19-2020 school year as he would qualify free school meals if he were to attend a DOE school.” (Ex B 3)

Presently, school year has ended and Parent seek reimbursement of $8.59 per day for the cost of school breakfast and lunch while Student attended the UP. (IHO Ex II 6, Ex J)

DOE argues against funding for Student meals at the UP: “An IHO does not have the authority to grant reimbursement for meals. The United States Department of Education, Office of Special Education Programs (OSEP) has opined that an impartial hearing officer has the authority to “grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled” but that the relief must be consistent with a the entitlement to a FAPE and “should not impose obligati ons that would go beyond entitlement” (Letter to Kohn, 17 IDELR 522 [OSEP1991]). The provision of breakfast and lunch costs are unrelated to the student receiving a FAPE. Meals are not a related service or a supplemental aid. SRO Appeal No. 05-033. As such, an IHO may not order a parent be reimbursed for meals.” (IHO Ex IV 5)

I note that in the case referred to by the DOE, SRO Appeal No. 05-033, the issue, in part was whether or not the child’s entitlement to a breakfast and lunch pursuant to a National School Breakfast and

National School Lunch Programs, at no cost to the child in public school, transfers to a UP. The SRO found that the entitlement does not automatically transfer to a unilateral placement in a private school (id. ¶ 14).

Furthermore, DOE argues that the present case distinguishes itself from C.D. v. New York City Department of Education, No. 05 Civ. 7945, 2009 WL 400382 (S.D.N.Y. Feb. 11, 2009). The school therein did not have a cafeteria from which to serve lunch. (IHO Ex IV 5-6)

Additionally, DOE argues that: “In this case even if it is determined the DOE failed to offer E.C. a FAPE the circumstances are different. Here, the [UP] participates in the Supplemental Schools Meals Program (“SSMP”). Tr. 78 Lines 5-10. Free meals are provided to students through this program.

Additionally, there is no evidence in the record that Parent applied to receive meals through the SSMP. Parent’s failure to avail themselves to the SSMP should not be rewarded through reimbursement. If the Parent is awarded reimbursement for lunch it should be capped at $292.” (IHO Ex IV 6)

DOE seeks to limit meals cost based on about $9.00 weekly cost, however, the cost set forth was a daily cost. (Ex J)

This case is somewhat different than those referred to by the Parties.

In this case the free meals program stems from a NYC DOE implemented program. (IHO Ex III, Ex S)

In this case the UP does participate in the supplemental schools meals program. (T 78)

No evidence was presented as to whether or not the Parent applied to the program, to which free meals may have been provided.

Parent Attorney states that, at the beginning of the 19-20 school year, the Parent’s income was above the guidelines. Parent income was reduced later in the year, at which point family may have qualified. (T 80)

Regardless of the application, Parent contends that since the DOE offers free meals for all Students, it would be discrimination to deny the Student free meals. (T 80)

In this case, the Parent could have, at some point, applied for the UP meals program and presumably been qualified to obtain free meals. Neither an application, nor denial, is presented evidencing a denial of the free meal program for the Student.

Parent establishes lack of financial resources to pay the UP tuition, seeking direct funding, as outlined above. (Ex E, T 3)

Evidence does not sufficiently explain how the Parent lacked ability to pay the Tuition Deposit without taking out a loan, yet did not qualify for the free meals program. (Ex T 3)

No attempt is evidenced showing any effort by the Parent to apply for the meal program within the UP.

Meals in this instance are not part of any special education need relating to particular diet, or special education need.

Based upon the above, I do not find the Parent entitled to reimbursement for meals for the 19-20 school year.

ORDER

• Department of Education (DOE) failed to offer the Student a FAPE for the 2019-2020 school year.
• DOE shall fund Student 19-20 Tuition for attendance at REDACTED as follows:

Reimburse Parent $2,500.00 for payment made to REDACTED; and Direct Payment to The REDACTED for Tuition balance of $132,940.00.

• The DOE shall provide Parent with any documents and/or forms necessary to facilitate tuition reimbursement and direct funding within ten days of the date of this Order.
• Student was entitled to DOE transportation, as provided by the DOE, for the 19-20 school year.
• This decision is subject to appeal and review by the State Review Officer.

DATED: September 24, 2020

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 days after the date of rthe decision sought to be reviewed.

An appealing party’s' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after the service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

NOTICE OF RIGHT TO APPEAL

New York City Department of Education, Impartial Hearing Decision

INTRODUCTION

ORDER