New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536627 - NYC: 193502

FINDINGS OF FACT AND DECISION

Case Number: 193502

Hearing Requested By: Parent

Dates of Hearing: November 4, 2020

Record Closed Date: December 7, 2020

Hearing Officer: Diane Ciccone, Esq.

I. Introduction

On September 3, 2020, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("student"); a pre-hearing conference on September 24, 2020, and hearing session on November 4, 2020 via telephone. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadlines were extended in part due to, the unavailability of witnesses and the requirements of due process, in order for the parties to complete their case and receipt of transcripts and closing briefs. Before granting the extension request, this hearing request was for the 2019/2020 school year that had finished prior to my appointment to this case. Therefore, the extension would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties.

II. Background The student is a REDACTED year old classified as a student with a health impairment and a number of delays that affect the classroom performance and academic functioning. A “Turning 5 Meeting” was held on May 9, 2019 and the IEP recommended the child attend a 12:1+1 for four subjects with a full time paraprofessional, occupational therapy 2 x 30 1:1, Physical therapy 2 x 30 1:1, Speech/Language therapy 2 x 30 1:1 and 1 x 30 3:1 (IHO Exh. 1). A placement letter was sent to the parents recommending 22K255: P.S. 255 (Exh.9). After a tour of the school, the parents notified by later dated August 6, 2019 the DOE of their concerns that the placement would not meet their child’s needs (Exh.C). The parent’s attorney followed up with two letters dated August 21 and October 7, 2019 (Exh. C,B) The DOE did not respond, and the student attended a private school for the 2019/2020 school year and are seeking reimbursement of tuition for the 2019/2020 school year.

III. The NYCDOE’s Position The DOE maintains that the May, 2019 IEP recommendations for the 2019/2020 school year of an 12:1 + 1 with related services at a public school was appropriate and provided the student with a free and appropriate education (FAPE). In support of their position, they had two witnesses the special education teacher who attended the IEP meeting and assistant principal for the recommended placement school. The DOE failed to timely exchange their disclosure and their exhibits were not admitted into evidence,

IV. Parent’s Position The parent contends that the IEP was not validly constituted for failing to include the participation of a general education teacher. The IEP did not provide the student with FAPE for the 2019/2020 school year by failing to recommend an appropriate school placement as the recommended program could not adequately address the student’s considerable needs. In support of its position, they presented the testimony of two witnesses and submitted exhibits A-O.

V. The NYCDOE’s case The special education teacher testified (Tr.32-58) who was present at the May 2019, IEP. The witness testified she never met the child and sat in the meeting as the special education teacher to discuss the programs at the school (Tr. 34). She stated she never saw anything but a classroom observation (Tr. 34). She is the 5th grade special education teacher (Tr.35).

In describing the school and program she stated that in a DOE 12:1:1 is a non-specialized school and the student can receive academic instruction and all of the related services in the school (Tr. 39, 40). The student can participate in school assemblies and go on field trips (Tr.41). She stated that the student needed a small class with structure in a more restrictive environment than an ICT or general education classroom would provide but would still be able to have a para and access the education curriculum for the grade that the student was in with the teacher being able to focus on the most import stuff and deliver it to the students in the way that the students need it be delivered (Tr.43).

She stated the basis for the recommendation was the school psychologist conducted a classroom observation and spoke with the classroom teacher and reviewed the related service reports (Tr.42). She did not see any of the service provider reports (Tr. 50). She stated the parent was taken down to the classroom where the student would attend (Tr. 50).

The Assistant Principle for the school testified (Tr. 58-73). She stated that school would have been able to provide a 12:1+1 classroom with a special education teacher for the 19/20 school year (Tr.61). She stated the school has parent support (Tr.63), all related services at the school (Tr.64) both push in and pull out services so the teachers can see what the therapists are doing (Tr. 64,65). All students participate in field trips (Tr. 67). The student enrollment in 19/20 school year pre-COVID was 847 with three floors and no elevator (Tr. 68,69)

VI Parent’s case The parent (Exh. O) and the director of the school (Exh. N) where the student attended provided affidavit testimony and were cross-examined by the DOE. In the affidavit by the director of the school attested that school is a small education program for students ranging in age 5 to 21. Students who attend the program have difficulties in the mainstream setting due to learning disabilities, speech and language delays or behavioral/social-emotional issues. The school offers small class sizes, small group instruction, increased structure, and behavior modification programs tailor made for each student’s behavioral and academic needs (Exh. N Para. 5). The school incorporates multi-sensory, hands-on material, visual aids, music, games and activities during instruction in order to keep students engaged and provides occupation, physical speech/language therapy and counseling (Exh. N para 5).

She knew the student and stated in her affidavit that she observed the child informally every day in her classroom and performed formal observations every two to three weeks (Exh. N para 8). She characterized the student as sweet and cooperative who required a great deal of 1:1 assistance throughout the day, as well as 1:1 instruction presenting with language, cognitive reasoning, social, gross and fine motor delays with a limited attention span and easily distracted by external stimuli (Exh. N para 9). The student was placed in a class with 5:2:1 and also received 1:1 health paraprofessional (Exh N. para 10). The student received speech/language 3 x 30 1:1, occupational therapy 3 x 30 1:1, and physical therapy 4 x 30 1:1(Exh. N para 13).

The student’s skills were assessed during intake, where it was determined that she lacked phonemic awareness skills, basic alphabet recognition, number recognition and counting skills. Goals were developed to address these basic skills (Exh. N para. 17). The student required a hands-on multisensory approach in order to learn skills (Exh. N para 18). The student received small group instruction and use of hands-on activities to keep her focused and motivated, required reading instruction in a group of two students to a teacher and 1:1 instruction for math in order to reduce distractions, keep her focused and provide intensive level of instruction at her level (Exh. N. para 20).

The director in her affidavit opined that the school was an appropriate placement for the student for the 19/20 school year because the student was able to receive the small group and one to one instruction and support, she needed to make progress. Instruction in core subjects, such as reading, math, and writing were provided exclusively in a 1:1 or 2:1 setting, and provided her with continuous feedback, prompting, modeling and sensory tools. The student made significant progress academically, socially and in acquiring appropriate classroom behaviors during the 19/20 school year. The student was able to learn because she was in a structured program that met all of her needs. She also received the related services required to help her learn and make progress (Exh. N para 36). From mid-March until the end of the schoolyear, the student participated in remote learning utilizing Zoom technology. To facilitate learning, two packets of educational material were sent home, one was designed for use during Zoom sessions and the other packet included reinforcement lessons to be completed by the student with the support of the parent (Exh. N. para 37).

In her affidavit she stated she reviewed the IEP that was created for the student and did not believe it was appropriate to meet the student’s needs. A class of 12 students with only one teacher and one assistant even with a health para would not provide the student with the level of 1:1 instruction she required (Exh. N. para 38). She stated the goals were inappropriate, with no behavior/social skills goals, the occupational therapy goals were too vague and not measurable. The speech/language goal was for a different student and was too advanced, lacked any goals for expressive language, the goal of 10 words with up to three sounds, will blend the sounds orally into words was too advanced as the student first had to learn letter/sound correspondence, and this process was very slow for the student. There were many clear areas of need that were missing goals, such as phonemic awareness, identifying and sequencing numbers, following patterns, identifying what number comes next, and money skills (Exh. N para 39). The management needs section is similarly inadequate, as it does not provide for small group instruction, social skills instruction or a structured behavior plan to assist the student in acquiring classroom behavior skills and follow routines (Exh. N para 40).

The parent in her affidavit stated her child had low muscle tone, global speech delays and physical delays and started receiving services at six months of occupational, physical therapy and special education (Exh. O. para 3). In preschool at age 3 was placed in a special education class with 12:1+2 with a 1:1 paraprofessional for safety, mobility and toileting (Exh. O para 4). She attended the May 2019 “Turning 5” meeting that recommended a 12:1+1 for math, ELA, science and social studies. She stated the CSE did not discuss what evaluations could be conducted as part of the review, nor did they conduct any updated testing. She was not provided with a copy of the classroom observation (Exh. para 6). She was concerned that the IEP recommendations could not meet the student’s needs. The IEP provided for 12:1 +1 for four subjects. In pre-school the student had a 12:1+2 and had done well but continued to have delays. She was concerned that kindergarten was more demanding and would not be appropriate to be in a class with less support, she was also concerned that the student required more individualized education support, and the full time paraprofessional recommended was for health reasons. She also pointed out the speech goal reference a different student’s name (Exh. O para. 7). She also stated the physical and occupational therapy mandates were reduced despite that the student continued to have fine and gross motor needs. No physical or occupational therapist participated in the meeting (Exh. O para 7).

She stated that she did make a visit to the recommended school and articulated the concerns she had with the recommended placement. Her concerns were that it would be difficult for the student to focus in such a crowded space, the class would not provide her with an appropriate peer grouping academically and socially, as most of the students were nonverbal and were significantly lower functioning, the program did not have any social skills training. Further the school was very large and posed a safety risk, as it was difficult for the student to navigate multiple floors without an elevator (Exh. O para 8). She advised the district of her concerns in a letter dated August 6, 2019 and did not receive a response to the letter. Her attorney also sent letters with no response (Exh. O par 9). She stated her child made progress during the 19/20 school year at JSCE, she is more social, has learned the sounds of many letters of the alphabet, recognizes numbers 1-10, her sentence structure has improved as well as her ability to repeat information and follow two-step directions (Exh. O para 12).

The parent submitted the school’s remote learning services ( Exh. M). the educational plan outlined skills to mastered indicating either mastered, or ongoing at 50, 60 or 70% (Exh. J).

The physical therapy progress report dated Feb. 2020 demonstrated the student presents with global gross motor delays but had made some progress this year. She has difficulty and cannot functionally participate in classroom activities that require full mobility, she displays extremely low tone, has difficulty lifting her feet and controlling her balance to accommodate challenges. It was recommended that in light of the progress and in consideration for the severe nature of her gross motor delays it is recommended she receive physical therapy at an increased rate to four times a week in school to address her myriad, severe delays (Exh. I).

The report from the occupational therapy dated Feb. 2020 stated the student presents with moderate hypotonicity throughout her trunk and upper and lower extremities. It states her perseverance is a beneficial attribute that has helped her progress, her work is slow paced, secondary to her weakness, she is able to follow simple one-step directions. It was recommended to continue the current mandate (Exh. H).

The speech progress update of Feb. 2020 indicated the student can now give functions of simple items with 75% accuracy. She is working on spatial, temporal and prepositional concepts and has shown improvement. She will sequence a familiar six card story with 60% accuracy after being introduced to the stories previously. She is learning to differentiate between wh questions with 70% accuracy and when questions with 70% accuracy. She is beginning to recognize initial sounds with 60% accuracy. She needs much work on social/lay skills. Therapy is recommended to continue four times weekly to properly address all of her goals (Exh. G).

VII. Findings of Fact and Discussion

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

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

The DOE recommended a 12:1+1 setting in a non-specialized school with related services. The District sent a placement letter and the parent took a tour of the school and between herself and her attorney sent three letters to the District outlining her concerns the school was not appropriate for her child. The district never responded, and the student was enrolled at JCSE for the 19/20 school year.

In the previous school year, while in preschool, the student had a 12:1+2 with related services and a full time paraprofessional. There was no explanation for the reduction of services to 12:1+1. It appears from a review of the testimony proffered by the District that the recommended school believed the 12:1+1 was sufficient without any basis of improvement that would warrant a reduction of services. The IEP did not mention any evaluations or reports from the service providers in its recommendation. The DOE witness testified that the school psychologist made one classroom observation. The testimony from the DOE witnesses were general in nature. The Special Education teacher witness testified that she did not know the student, never saw anything but a classroom observation and was listening to the discussion. She gave very general testimony of what the program at the recommended school would provide without the nexus that the program would be appropriate for this student. Similarly, the Assistant Principle gave general information about the class size for a 12:1 +1 classroom and that all related services could be provided on site. The related services would be both push in and pull out seemingly unaware of the physical challenges this environment would create for this student. Given the size of the student body, a three story building with no elevator and the student’s poor muscle tone that can make it difficult for the student to fully participate in classroom activities or manage to navigate outside of the classroom for pull out services.

The parent raised concerns that the class size was too big, and her child needed a smaller class size, that the paraprofessional provided was for health reasons and there would not be adequate support and individualized attention she would need for the rest of the day. She mentioned that the IEP had inaccurate information including using the wrong child’s name in the goals section. She expressed concerns that the school with a population of 900 students would be overwhelming for her child. The parent noted that the student had problems navigating the classroom and school environment. The parent also raised the concern that the students who would be in her class were mostly nonverbal and would further exacerbate her speech delays (Exh. D).

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

By failing to even acknowledge the parents’ concerns the district undermined the “cooperative process” between parents and districts that the Supreme Court has held constitutes the “core of the [IDEA]” (Schaffer v. Weast, 546 U.S. 49, 53 [2005], citing Rowley, 458 U.S. at 205-06; see also 20 U.S.C. § 1400[c][5] [stating Congress’ finding that the education of students with disabilities can be improved by “strengthening the role and responsibility of parents and ensuring that families of such children at school and at home”]).  Thus, the district’s failure to respond to the parents, where the parents raised concerns regarding the student's placement, significantly impeded the parents' ability to participate in the decision-making process regarding the student's placement and thereby denied the student a FAPE (20 U.S.C. § 1415[f][3][E][ii][II]; 34 CFR 300.513[a][2][ii]; 8 NYCRR 200.5[j][4][ii]).

The parents’ claims about the recommended placement were not speculative. The school site is an important factor that parents rely upon in making their determination regarding the adequacy of a recommended placement (V.S. v. New York City Department of Education, 25 F. Supp. 3d 295 (E.D.N.Y. 6/10/14). See D.C. ex. rel. E.B. v. New York City Department of Education, 950 F. Supp. 2d 494 (S.D.N.Y. 3/26/13) (finding that parents rely on information that was given at time that they were required to make placement decision and not on retrospective testimony by District justifying placement). See also R.E. 694 F.3d at 187-88) [“At the time the parents must decide whether to make a unilateral placement... [t]he appropriate inquiry is into the nature of the program actually offered”]; see Application of the Bd. of Educ., Appeal No. 18-001; Application of a Student Suspected of Having a Disability, Appeal No. 16-011). Since R.E., the Second Circuit has continued to emphasize the importance of limiting a FAPE analysis to include a review only of the information “reasonably known to the parties at the time of the [parents’] placement decision” (R.E., 694 F.3d at 187; see J.C. v. New York City Dep't of Educ., 643 Fed. App’x 31, 33 [2d Cir. Mar. 16, 2016]; M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 220 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F3d 68, 81 [2d Cir. 2014]). The Second Circuit’s reasoning is generally applicable in this context: The parents relied on specific and credible information provided by the District and informed the District of their specific and credible concerns about the information provided, which was related to the District’s inability to safely and appropriately educate their child. (Ex. 10; Tr. 152, 154-55)^[1]; and the district did not respond. The District’s failure to respond impeded the parents’ ability to meaningfully participate in the decision-making process concerning their child’s education; and is at the crux of this case..

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

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gaglirdo, 489 F.3d at 115.

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

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

VIII. Order

IT IS THEREFORE ORDERED THAT:

• • The DOE shall reimburse/fund the parents for the tuition of their child at private school for the 2019/2020 school year.

Diane Ciccone

Diane Ciccone, Esq. IHO

Dated: December 7, 2020

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.

Footnotes

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