Impartial Hearing Decision

Finding of Fact and Decision

Case Number: 195089

Student’s Name: [REDACTED]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: 12/30/20

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a “reimbursement” case.

A pendency hearing was held on July 14, 2020 and I issued a pendency decision. A hearing was held on September 4, 2020; October 22, 2020; and October 23, 2020.

Overview

I will briefly apply a three-prong analysis to this case, examining first whether the District met its burden to demonstrate the appropriateness of their program, second whether the Parents met their burden to demonstrate the appropriateness of the placement at Private School, and third whether equitable considerations favor the District or the Parents in this matter.

Parents’ Position In the complaint notice, dated July 1, 2020, the Parent alleged that the District failed to provide the Student with a free appropriate public education (FAPE) for the 2020 – 2021 school year. The Parent is seeking tuition for the Private School where she unilaterally placed the Student, funding for transportation to and from the school, funding for an independent vocational assessment at a rate not to exceed $2,500; for the District to provide the Student with a transition coach; for the District to pay all evaluations/service provider within 30 days of the order.

Issues

In the complaint notice, the Parent alleged the following violations:

1. The District failed to provide an appropriate school placement.

2. The District failed to recommend a program that utilizes ABA.

3. The District failed to provide the Student with appropriate related services.

4. The District failed to appropriately conduct a vocational assessment or develop an appropriate transition plan for the Student.

5. The District failed to develop measurable goals that appropriately address the Student’s needs.

District’s Position The District submitted evidence but did not call any witnesses to defend FAPE.

Student History

According to the Executive Director of Educational Programming, the Student “presents with weaknesses in his social and communication skills and academic weaknesses in reading and math…” (Ex. S). The Student has a disability classification of Autism. (Ex. B). The Student exhibits disruptive behavior of outbursts and refusing to work with non-preferred students or staff. (Ex. F). The Student has difficulty remaining on task and focusing. (Ex J). The Student is in 9th grade, reading on an 8th grade level, writes on a 6th grade level, and is on a 5th-6th grade level in math. (Ex. J). The Student is friendly and has positive relationships with some peers and staff. (Ex. J).

Background of the Case

An IEP meeting was held for the Student on May 6, 2020. The IEP recommended a special 12:1:1 class, 1:1 counseling 1x30; group counseling 1x30; 1:1 physical therapy 1x30; group physical therapy 1x30; group speech language therapy 2x30; and group parent counseling training once a month for 60 minutes. (Ex. B, Ex. I). The IEP did not include a transition plan or goal; only the transition activity of continuing to participate in “community based outing at the school”. (Ex. B). The Parent testified that the Student needs a vocational assessment and a transition coach. (Ex. P). The Parent sent an email, dated June 2, 2020, to the District requesting the Student’s IEP (Ex. E). The District sent the Parent a school location letter, dated June 8, 2020. (Ex. C, Ex. 11). The Parent testified that she called the assistant principal, a staff member, the parent coordinator, and the school-based support team, and the CSE Chair, to get more information about the recommended placement (T. 74). When she did not hear back from the District staff, she reviewed the placement’s website and did not find it appropriate for the Student. (Ex. P). The Parent sent a letter to the District, on or about June 16, 2020 stating her intention to enroll the Student in the Private School if he was not given an appropriate placement. (Ex. P). She testified that the Student was enrolled in the Private School by the end of June for the school year that started in July (T. 76). The Parent testified that she signed the contract for the Private School on August 27, 2020 (T. 77, Ex. M). When asked if she received anything in writing from the District after sending her letter, dated June 15, 2020, she answered “no” (T. 80).

Prong I The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]).

The District submitted evidence but did not call any witnesses to defend their program. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

I therefore rule for the Parent on Prong I.

Prong II

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“... [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Recommendations The Student’s school counselor, a licensed social worker, recommended that the Student continue to receive 1:1 counseling once a week for 30 minutes and group counseling once a week for 30 minutes, in addition to as needed sessions (Ex. H). The Student’s speech language pathologist recommended that the Student continue to receive speech and language therapy once a week on an individual basis for 30 minutes, and two times per week in a group of two for 30 minutes and that speech language therapy continue during the summer (Ex. I).

The Executive Director of Educational programs at the Private School testified by affidavit that the Private School is for students who are on the autism spectrum. The school teaches students to learn problem-solving and gain independence. During the 2020 – 2021 school year, the Student was enrolled in the extended school year’s summer program and the 10 month school year. The Student is currently placed in a program for students who are average to above average intellectually, which follows the common core curricula, and uses a social thinking curriculum and collaborative problem-solving to address social deficits (Ex. S).

The Student is in a class with eight students, one teacher, and one teaching assistant. All teachers and staff in the school receive extensive ABA training; are taught about autism; how to speak and relate to students on the autism spectrum, and receive training in utilizing discrete trials, collaborative problem-solving, and crisis prevention intervention, (Ex. S). The Student was given a functional behavior assessment and a behavior intervention plan. (Ex. F, Ex. G).

The Student is attending a hybrid model of learning of in person and virtual classes. (Ex. S). The Student is receiving post – secondary advisement from the school’s transition coordinator and is participating in a vocational program within the school building. The Student is in a social skills class (which is required for all students in the school) and has made “significant progress with his ability to socialize with his preferred peers.” The Student has participated in enrichment clubs every Friday afternoon. The Private School offers parent training once a month through their website and also provides individualized training and provides a daily communication log between the school and the parents (Ex. S).

The Student attends the high school at the Private School. The Student is in a program that uses ABA methodologies and collaborative problem-solving techniques to facilitate skill development. The Executive Director at the Private School testified via affidavit. She testified that the Student receives the related services of counseling, speech and language therapy, occupational therapy, and physical therapy at the Private School (T. 50). The Student is receiving counseling one time per week individually and one time per week in a group of three for 30 minutes sessions. The Student has made progress with his counseling and has identified positive coping skills for times of stress and has made improvements in using positive strategies in social conflicts with others (Ex. H). The Student is receiving speech and language therapy one time per week individually for 30 minutes and two times per week in a group of three for 30 minutes. The Student is receiving speech language therapy to improve his receptive, expressive, and pragmatic language skills. The Student has made progress in all his goal areas. (Ex. I). The Student receives 1:1 physical therapy once a week for 30 minutes and in a group of three, once a week for 30 minutes. (Ex. K). She testified that the Student has made great improvement in his ability to control himself when upset, ask her help if he needs it, or clarification from a peer, and is able to have more interactions with other students without facilitation from an adult. The Student has also improved in his ability to be organized. He has made improvement with core strength, stamina and endurance in physical therapy. (T. 52 – 54).

The Private School teaches the New York State core curriculum (T. 60). During the 2020 – 2021 school year, the school used remote learning for the first two weeks because transportation wasn’t available for private schools yet and then following that, they resumed to in person learning (T. 63). The school is following a hybrid model of half remote learning and half in person classes (T. 64).

The Executive Director testified that the Student has made progress in mathematics and currently has two periods of math a day: a Regents level algebra class with the high school math teacher and a math class with the Student’s homeroom teacher to reinforce and pre-teach the lessons in the algebra class (T. 64 – 65).

The Student also has two periods of English each day: a Regents level class and a class with his homeroom teacher for remedial work. (T. 65 – 66). She said the Student has “been making a lot of progress. He’s reading close to grade level…” (T. 66). The Executive Director testified “[The Student] has made significant progress since his enrollment at [the Private School]. [The Student] is now able to add and subtract with regrouping, multiply three – digits by one – digit with regrouping and divide two – digits by one digit.… [The Student’s] reading level has also increased to the eighth-grade reading level.” (Ex. S).

The Parent testified that the Student has made progress, has improved in his ability to advocate for himself, to control and reflect on his behavior, and has developed good relationships with school staff. (Ex. P).

Accordingly, I find that the placement provides educational instruction specially designed to meet the unique needs of the Student. Moreover, the Parents have established that such services as are necessary to permit the Student to benefit from instruction.

Prong III

As a final point, 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 where 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; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition 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 removing the child 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. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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])

The Parent attended the Student’s May 2020 IEP meeting. After the Parent learned of the recommended placement, she attempted to contact District staff to schedule an appointment to visit the school; however, she was unable to reach them. (Ex. P). The Parent sent a ten-day notice letter to the District, dated June 16, 2020, to inform them that she had not received an appropriate placement for the Student and would enroll him in the Private School for the 2020-2021 school year, and seek tuition funding (Ex. D). I find that the Parent cooperated fully with the District.

Summary In closing I summarize: A board of education may be required to reimburse parents for their expenditures for private education 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).

The Parent argues that the District did not provide the Student a FAPE for the 2020-2021 school year by failing to recommend an appropriate program and placement to meet the Student’s needs. The District submitted evidence but did not call any witnesses to defend their program, and failed to demonstrate that they offered the Student a FAPE for the 2020-2021 school year. A\ll of the exhibits submitted by the District (other than the May 6, 2020 IEP (Ex. I) and the school location letter (Ex. 11)), were evaluations conducted by the Private School, which only support the appropriateness of the Private School’s program. I credit the testimony of the Parent and the Executive Director of Educational Programs at the Private School that the Private School offered the Student an appropriate program that met his special education needs and enabled him to make progress. I also find that the Parent cooperated with the District. I, therefore, rule for the Parent.

It is hereby ORDERED:

1. The District shall provide direct payment or public funding of tuition and services at the Private School for the 2020-2021 school year.

2. The District shall provide direct payment or public funding of door-to-door transportation to/from the Private School and the Student’s home with a limited time travel of one-hour each way, as recommended

3. The District shall provide funding for an independent vocational assessment at a rate not to exceed $2,500.

Dated: December 30, 2020

___________________

Martin J. Kehoe III, Esq.

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 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.