New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 540410 - NYC: 197098

FINDINGS OF FACT AND DECISION

Case Number:

197098/217078

NYS Identifier Number:

540410

Student’s Name:

STUDENT

Date of Birth:

REDACTED

Region:

REDACTED

Hearing Requested By:

Parent

Date(s) of Hearing:

October 5, 2021; November 22, 2021

Actual Record Close Date:

June 29, 2022

Hearing Officer:

Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding STUDENT The hearing was convened at the written request of the Parent by letter dated August 21, 2020 ( ). (Parent Exhibit A) The request was related to the 2020-2021 school year. The Parent also requested a hearing regarding the 2021-2022 school year, by letter dated September 13, 2021 (Case #: s217078). (Parent Exhibit R) By Consolidation Order dated October 5, 2021, this Impartial Hearing Officer (“IHO”) consolidated and Case #: 217078. All scheduled matters in this case were conducted by video/teleconference, with the presence of a court reporter to create a written transcript. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

On the first day of hearing of Case #: 197098, October 20, 2020, which was prior to the filing of Case #:217078, an Interim Order was issued addressing the pendency entitlement for STUDENT during the pendency of the proceedings for the 2020-2021 school year. The following order was contained therein:

The Parent’s request for pendency, pursuant to the unappealed Findings of Fact and Decision, issued by Amy Lynne Itzla, Esq., dated February 12, 2019, is granted. The DOE shall directly pay for tuition to REDACTED Academy for STUDENT’s enrollment for the 2020-2021 school year during the pendency of this proceeding. Payment shall be made upon the submission of an invoice from REDACTED to the DOE. This order is retroactive to the date of the Parent’s initial hearing request, August 21, 2020, and will continue in effect through the 2020-2021 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.

On the second day of hearing, October 5, 2021, this IHO consolidated the two hearing requests/cases and issued a Consolidation Order. In addition, an Interim Order was issued addressing the pendency entitlement for STUDENT during the proceedings for the 2021-2022 school year, which were now the proceedings for both the 2020-2021 and 2021-2022 school years. The following order was contained therein:

The Parent’s request for pendency, pursuant to the unappealed Findings of Fact and Decision, issued by Amy Lynne Itzla, Esq., dated March 3, 2021, is granted. The DOE shall directly pay for tuition to REDACTED Academy for STUDENT’s enrollment for the 2021-2022 school year during the pendency of this proceeding. Payment shall be made upon the submission of an invoice from REDACTED to the DOE. This order is retroactive to the date of the Parent’s hearing request, September 13, 2021, and will continue in effect through the 2021-2022 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.

BACKGROUND

STUDENT is a boy who has been classified by the DOE as a student with a disability eligible for special education services. He entered the 2020-2021 school year as a REDACTED year-old student in the third grade and the 2021-2022 school year as a REDACTED year old student in the fourth grade. During the 2018-2019 and 2019-2020 school years, STUDENT had been unilaterally placed by the Parent at the REDACTED Academy (“REDACTED”). The Parent had claimed that the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to STUDENT for that school year. By order dated March 3, 2021, this Impartial Hearing Officer found that: “1. The DOE failed to offer a FAPE to STUDENT for the 2018-2019 and 2019-2020 school years; 2. The Parent’s unilateral placement of STUDENT at REDACTED Academy was appropriate for the 2018-2019 and 2019-2020 school years; and 3. There are no equitable considerations which would reduce or bar an award of reimbursement.” (Parent Exhibit S) The DOE was ordered to fund the full tuition for STUDENT at REDACTED for the 2018-2019 and 2019-2020 school years.

By letter to the DOE dated August 17, 2020, through counsel, the Parent raised concerns regarding the DOE’s planning for the 2020-2021 school year. (Parent Exhibit H) The Parent raised procedural and substantive errors in the development process and in the content of an Individualized Education Plan (“IEP”) created by the Committee on Special Education (“CSE”). By letter to the DOE dated August 17, 2021, the Parent raised the same concerns regarding the 2021-2022 school year. (Parent Exhibit P) In both letters, the Parent notified the DOE, in part, that:

In addition, the parents believe that, regardless of any procedural errors it may have committed, the DOE failed to develop a substantively appropriate IEP and offer an IEP and school placement that were adequate and/or appropriate to address all of STUDENT's individual educational needs during the 2020-2021

[2021-2022] school year. The parents are also concerned that the DOE failed to provide STUDENT with a recommendation of a school placement in a suitable environment in which all of his learning needs including, but not limited to his language, health-related, and related services needs could or would be addressed. As a result, in the absence of an offer of a FAPE by the DOE, STUDENT will be placed at the REDACTED Academy, located in Brooklyn, New York, for the 2020-2021

[2021-2022] school year. If the parents are forced to place EB at the REDACTED Academy, they will be seeking reimbursement and/or payment for STUDENT's private school placement from the DOE. A formal request for an impartial hearing will follow.

STUDENT did, in fact, attend REDACTED for the 2020-2021 and 2021-2022 school years.

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE asserted that the evidence would show that a FAPE was offered to STUDENT for the 2020-2021 and 2021-2022 school years. Specifically, the DOE maintained that the CSE conducted IEP meetings on April 29, 2020, and April 7, 2021, for each of the two school years at issue, respectively. It was further asserted that the process, the recommendations contained in the IEP’s developed for both years, and the school placements offered, constituted a FAPE. The DOE did not raise any objection to the appropriateness of the Parent’s unilateral placement or any equitable issues that would affect a potential award in the Parent’s favor, except to state, in its closing argument, that REDACTED was “too restrictive for someone with [STUDENT]’s abilities and potential.” The DOE presented the testimony of REDACTED, school psychologist; REDACTED, Assistant Principal of REDACTED; and, REDACTED, teacher and SESIS liaison for REDACTED.

Ms. REDACTED testified that she is a school psychologist working with the CSE for Region 7 and she participated in the CSE meeting conducted on April 29, 2020, and in the creation of the IEP of that date. She testified that the Parent; Ms. REDACTED, Principal of REDACTED; and REDACTED, STUDENT’s classroom teacher at REDACTED, participated in the meeting. She confirmed that the school representatives were those that worked directly with STUDENT Ms. REDACTED explained that the CSE’s recommendation for the 2020-2021 school year was a special class in a District 75 school, which is for students with significant disabilities; related services; a health paraprofessional, since STUDENT is considered medically fragile; adaptive physical education; and specialized transportation in a small group, with limited travel time, and air conditioning. She stated that the CSE relied upon documents provided by REDACTED and STUDENT’s related service providers. She explained that any psychological evaluations already in the DOE’s system were too old to consider and that a new evaluation was not conducted, because “we did feel that the reports we had were sufficient enough as a form of almost alternate assessment to see how he’s doing.” (DOE Exhibit 1; T. 44-51; 61) Ms. REDACTED confirmed that the CSE did not rely on any information provided by the DOE or otherwise, independent from the information provided by REDACTED. She said, “We based everything on what the school provided and what they said over the phone and the mother’s input as well.” She also acknowledged that all of the information provided was based on STUDENT’s then-current educational program at REDACTED. There was no other information used to determine that the recommended program would be appropriate for STUDENT; the CSE made that determination based on the Parent and school reports and information. (T. 70-72) Ms. REDACTED confirmed that the Parent and the REDACTED staff expressed concern that the placement was not appropriate or supportive enough and did not offer certain programs, such as Applied Behavioral Analysis. Ms. REDACTED could not recall if the Parent raised a concern that STUDENT needs a smaller school environment with a smaller student population, in part, due to his medical condition causing him to be immunosuppressed. The goals contained in the IEP were mostly developed from the REDACTED progress report. (T. 52; 58-59) When asked whether there was any discussion about conducting a Behavior Intervention Plan for STUDENT during the meeting, Ms. REDACTED stated that it was not. She described his behaviors as noncompliant, impulsive, and including things like falling to the floor and refusing to answer questions. She stated that the CSE did not feel that an updated plan was needed, since he has a positive behavior support plan at school. When Ms. REDACTED was asked why there was no mention of the school’s behavior plan in the IEP, she replied that, “I can’t think of anything other than we just didn’t mention it either by mistake or you know.” (T. 62-63) Ms. REDACTED stated that the CSE believed the recommendations were appropriate, since the special class would have a ratio of 6:1+1 and is very supportive, with a small amount of students, and a lot of attention from the teacher. He would receive his related services and the additional support of the health paraprofessional. (T. 53) Ms. REDACTED could not provide information on the specific school that would have been offered to STUDENT, since the actual school placement is handled by a different entity and not the CSE. When asked how many students are generally in a District 75 program, Ms. REDACTED stated that, “It’s hard to say. Some schools are bigger than others. A lot of the time they’re, you know, housed within a general education school as a District 75 program. So it’s really difficult to say how many there would be.” (T. 56-57)

Ms. REDACTED also testified regarding her participation in the April 7, 2021, CSE meeting in preparation for the 2021-2022 school year. Ms. REDACTED and STUDENT’s teacher participated in the meeting. An IEP was created for the 2021-2022 school year. (DOE Exhibit 5) The CSE recommended a District 75 specialized school, in a 6:1+1 class, related services, a health paraprofessional, adaptive physical education, and transportation modifications. The CSE relied on reports from REDACTED to describe STUDENT’s then-present levels of performance and developed the goals based on the goals provided by REDACTED. Ms. REDACTED testified that the strategies contained in the “management needs” section of the IEP were recommended because, “They, you know, the specialized school, highly structured environment is what he needs, environmental modifications, just in terms of the fact that he is a medically fragile student, his related services and multi-sensory approach to learning. Those are all considered things that would help him throughout the school day.” (T. 146-155) Ms. REDACTED acknowledged that the reports from REDACTED were the only reports relied upon and that the reports did not recommend moving STUDENT to a District 75 6:1+1 program. (T. 162) Ms. REDACTED confirmed that the content of the IEP, with the exception of the recommendation, is completely reflective of the information provided by the school and family. She acknowledged that all of that information was accepted by the CSE as credible, valid, and coming from people with direct knowledge of the student. The only thing that the Parent and REDACTED offered that was not accepted by the CSE as appropriate was their opinion on what kind of program and placement he needed. She stated that, “The only thing we didn't use was their disagreement on placement.” (T. 165-166) Ms. REDACTED was asked if, in her opinion, REDACTED was able to support STUDENT and her response was, “Based on what they said, yes, they were.” (T. 164)

REDACTED is the Assistant Principal at SCHOOL. She has never met STUDENT and has not seen any documents regarding him other than the IEP dated April 29, 2020. (T. 75; 90-91) She testified that there would have been availability in a 6:1+1 special class at the school for STUDENT for the 2020-2021 school year. (T. 75-76) She also stated that STUDENT would have been able to receive his related services, adaptive physical education, and have a health paraprofessional at the school. With regard to the recommendation for parent counseling and training four times a year for sixty-minute sessions, she stated that the school provides monthly parent workshops. Ms. REDACTED explained that students are always escorted by a teacher, paraprofessional, or related service provider between classrooms, and other spaces in the school. (T. 78-82; 84-85) On cross-examination, Ms. REDACTED explained that SCHOOL is located in eight different sites throughout Brooklyn, with one of them being SCHOOL. She did not work at the SCHOOL site in the 2020-2021 school year. She also clarified that she was not the supervisor of the teachers at the SCHOOL site during that school year; supervision of that site was provided by another Assistant Principal. (T. 86)

REDACTED is a teacher and a SESIS liaison for 77K. She testified that STUDENT would have been able to be in a 6:1+1 class in her school in the 2021-2022 school year, receive his related services, and have a health paraprofessional. Ms. REDACTED stated that the school has a regular gym and does not have an adaptive physical education program. (T. 172-185)

THE PARENT’S CASE The Parent maintained that there were numerous deficiencies in the IEPs created for the 2020-2021 and 2021-2022 school years. Among them, the Parent noted the lack of sufficient evaluative materials, including the absence of a psychological evaluation and the failure to properly assess STUDENT since preschool. In addition, the Parent claims they were denied the right to meaningfully participate in planning for STUDENT’s education, in that their concerns were not addressed or responded to. The Parent also asserted that the recommended District 75 program is not sufficient to address STUDENT’s needs. It has been argued by the Parent that their placement of STUDENT at REDACTED was appropriate and that the school is providing for all of his needs. The Parent contends that all relevant equitable considerations strong weight in their favor. The Parent presented the direct testimony of its witnesses, REDACTED and REDACTED through their affidavits. (Parent Exhibits BB; CC) The DOE’s representative requested the opportunity to cross-examine the Parent’s witnesses and they appeared for that purpose.

REDACTED is the Principal of REDACTED Academy. Her direct testimony was provided through a sworn affidavit. (Parent Exhibit BB) REDACTED is a full-time special education school, working primarily with school-aged students on the Autism spectrum and others with developmental challenges, located in Brooklyn, New York. She described the various methodologies, including Applied Behavioral Analysis, therapeutic approaches, and philosophies utilized at the school, as well as the manner in which numerous therapies are incorporated into the curriculum. The physical facilities of the school are designed with special attention to the students served. For example, classrooms are well-lit and feature SMART technology, the occupational and physical therapy gyms are state-of-the-art, there is a kitchen for vocational training and teaching activities of daily living, and an outdoor playground. Ms. REDACTED stated that there were 45 children enrolled in the school during the 2020-2021 school year and 49 children enrolled during the 2021-2022 school year. REDACTED aligns its programs with the Common Core Standards of the New York State Education Department. Academic programming blends various methodologies with adapted core curriculum and thematic units. Each student’s program is highly individualized and tailored for the student’s unique profile. She explained how curriculum goals are designed and related services goals incorporated into classroom programming to facilitate carryover and generalization. Students are prepared for independent living and life outside of school, which includes job opportunities and community involvement. Ms. REDACTED described the occupational therapy, physical therapy, speech and language, and creative arts therapies. There is also an adaptive swim program for the students. Students participate in social skills training in various forms. Ms. REDACTED described the variety of after-school programs and community experiences available to the students.

Ms. REDACTED explained the importance of families in the students’ education and the ways REDACTED works with families. These include home visits throughout the year to ensure continuity between the environments, in-service training workshops for families to learn various skills, and an open-door observation policy for families to observe their student at school at any time. Ms. REDACTED described faculty and staff educational requirements, certifications, and licensing, as well as professional development and training requirements.

Ms. REDACTED testified that STUDENT has been a student at REDACTED continuously since the 2017-2018 school year, which was his kindergarten year. Since then, she has interacted with and seen STUDENT on an almost daily basis. She has had opportunities to speak to and meet with his teachers and everyone else who works with him at REDACTED to discuss his learning needs, development, growth, and progress. Additionally, she personally, assists with feeding at his lunch table two times per week.

Ms. REDACTED stated that, “Based on my knowledge of STUDENT and my general knowledge of 6:1+1 classrooms in the DOE's District 75 [the DOE recommended placement for STUDENT for both the 2020-2021 and 2021-2022 school years] I do not believe that the DOE's recommended placement was in any way appropriate for STUDENT nor do I believe it could have met his learning needs during the 2020-2021 school year. Similarly, I do not believe that the DOE's recommended 6:1+1 class in a District 75 for STUDENT’s 2021-2022 school year was in any way appropriate nor do I believe it could have met his learning needs during the 2021-2022 school year.” She explained that she has visited numerous DOE District 75, 6:1+1 programs over the years and has participated in hundreds of CSE meetings in which the recommended placement incudes that program.

The following excerpts were taken from Ms. REDACTED’s affidavit:

• • 1 reviewed REDACTED's file and I have spoken to all of his teachers and other providers from the 2020-2021 and the 2021-2022 school years and thus, feel that I am able to provide an accurate description of STUDENT In addition to the foregoing, I regularly interact with and observe him at REDACTED. Accordingly, I believe that I can provide an accurate portrayal of STUDENT as a student, describe what it is that he needs to learn, and explain some of the ways in which he receives the support he needs at the REDACTED Academy.
• • There were 6 boys and 1 girl, all between the ages of 5 and 8, for a total of 7 students in STUDENT’s class for the 2020-2021 school year.
• • There are 5 boys and 2 girls, all between the ages of 9 and II, for a total of 7 students in STUDENT’s class for the 2021-2022 school year.
• • Throughout the 2020-2021 school year, STUDENT improved in all areas. Although STUDENT made a significant amount of progress during the 2020-2021 school year, he remains a child with significant delays in all areas. He made significant progress throughout the 2020-2021 school year but, still has a long way to go and requires the same kind of support we provided to him at REDACTED during the 2020- 2021 school year to allow him to continue to grow as he remained a student with significant delays in all areas.
• • Although the 2021-2022 school year only recently started, we expect that STUDENT will continue to progress in many of his goals as more fully set forth in the 2020-2021 annual review document that REDACTED provided to the DOE to assist it in planning for REDACTED's 2021-2022 school year.
• • During the 2021-2022 school year, REDACTED plans to provide STUDENT with direct, individual instruction, a quiet setting, multiple teaching strategies, and skills implementations involving a multi-sensory, embedded approach. Using all of the foregoing, we expect that STUDENT will continue to be able to follow familiar classroom routines with moderate to minimal adult support. We further expect him to improve in terms of his ability to interact playfully and to open and close circles surrounding highly motivated activities. As shown by his history with us, we believe that STUDENT will continue to respond positively to his 1:1 ABA sessions to further develop his academic skills as well as his DlR/Floortime-based groups which will focus on his social and emotional growth.
• • Based on my knowledge of STUDENT and the interventions we are using with him at REDACTED, I expect further and significant progress from STUDENT in response to our work with him during the 2021-2022 school year.
• • STUDENT’s success during the 2020-2021 school year and his anticipated success during the 2021-2022 school year is the practical result of the ABA, DIR, sensory integration, individualized program, mental-health and other related services.
• • Based on all of the foregoing, I believe that STUDENT was provided with appropriate educational services and support at REDACTED during the 2020-2021 school year and that we are continuing to provide him with an appropriate program for the 2021- 2022 school year and that all of his needs were met at REDACTED during the 2020- 2021 school year and will be addressed at REDACTED during the 2021-2022 school year.

With regard to the April 29, 2020, CSE meeting, Ms. REDACTED stated that:

• • I participated in the April 29, 2020 CSE meeting with the DOE to plan for STUDENT’s education. Also participating were STUDENT’s parent, his classroom teacher from REDACTED, and individuals representing the DOE, none of whom know were familiar with STUDENT The meeting was held via telephone.
• • Ultimately at that meeting, the DOE recommended a 6:1+1 special class program for STUDENT in its District 75 for STUDENT’s 2020-2021 school year.
• • Neither REDACTED nor STUDENT’s mother agreed with the DOE's recommendation for STUDENT
• • At the meeting I clearly stated that I did not think that a 6:1+1 District 75 program was an appropriate setting for STUDENT
• • Specifically, I remember talking about the methodologies used in District 75 6:1+1 programs and the fact that, based on my experience in the DOE and my observations of District 75 programs, STUDENT would not receive sufficient individual ABA or DIR - both of which he requires in order to learn and make meaningful progress, and all of which he receives at REDACTED. As a result, I advised the DOE-employed members of the April 29, 2020 CSE team that an IEP that did not call for the provision of 1:1 ABA, DIR and TEACCH to STUDENT throughout his school day would not be appropriate and would not allow him to learn. STUDENT’s parent and I emphasized that STUDENT needed a small school in which he would be exposed to a minimal number of other children because his immune system is suppressed as a result of his having a kidney transplant. I also advised the DOE-employed members of the team that continued to require a placement in a school with a small student population, a sensory gymnasium, like we have at REDACTED, and one-to-one support throughout his entire school day across various settings so that he could make meaningful progress.
• • The DOE said it would not and could not provide for the above in STUDENT’s IEP. The CSE members stated that methodologies could not be specified in an IEP and that each individual teacher would determine how to teach the particular class. In fact, the CSE specifically stated that STUDENT would not be provided with DIR methodology because the DOE did not have any school that used DIR in its District 75.

With regard to the April 7, 2021, CSE meeting, Ms. REDACTED stated that:

• • I also participated in the April 7, 2021 CSE meeting with the DOE to plan for STUDENT’s education for the 2021-2022 school year. Also present were STUDENT’s parent, his classroom teacher from REDACTED, and various individuals representing the DOE, who admitted that they were unfamiliar with STUDENT The meeting took place via telephone. Ultimately at that meeting, the DOE again recommended a 6:1+1 special class program for STUDENT in its District 75. Neither STUDENT’s parents nor REDACTED agreed with the DOE's recommendation.
• • Once again, I clearly stated that I did not think that a 6:1+1 District 75 program was an appropriate setting for STUDENT for his 2021-2022 school year. I advised the DOE-employed members of the April 7, 2021 CSE team that an IEP that did not call for the provision of 1:1 ABA and DIR to STUDENT throughout his school day would not be appropriate and would not allow him to learn.
• • STUDENT’s parent and I again emphasized that STUDENT needed a small school in which he would be exposed to a minimal number of other children because his immune system is suppressed as a result of his having a kidney transplant. I also advised the DOE-employed members of the team that STUDENT continued to require a placement in a school with a small student population, a sensory gymnasium, like we have at REDACTED, and one-to-one support throughout his entire school day across various settings for his safety and so that he could make meaningful progress.

Finally, in summary, Ms. REDACTED testified that:

I believe STUDENT is appropriately placed at REDACTED for the 2020-2021 and the 2021- 2022 school years because he has made and he continues to make significant and meaningful gains. His communicative, academic, verbal, OT, PT, social, and other skills are all moving in the right direction. At REDACTED, we've seen improvement in STUDENT’s ability to identify and articulate how he feels, his ability to articulate his wants and needs, his independence, his academic skills, and in his ability to use the coping strategies that we taught and are teaching him to self-regulate and manage challenging situations, such as transitions from one activity or environment to another. REDACTED provides STUDENT with a small school and classroom environment, continuous individual attention across all settings, the specialized methodologies and behavioral systems, equipment and sensory diet STUDENT needs in order to be available to learn and make meaningful progress.

REDACTED is STUDENT’s mother. Her direct testimony was provided through a sworn affidavit. (Parent Exhibit CC) Ms. REDACTED described STUDENT’s disabilities, diagnoses, delays, and needs. The following are excerpts from her affidavit:

• • STUDENT has multiple disabilities and diagnoses, including, but not limited to Global Developmental Delay ("GDD"). In addition, REDACTED.
• • STUDENT has cognitive, communicative, and other delays. He is also impeded in terms of ambulation. REDACTED. Because of all of his learning and health issues, I believe that STUDENT needs, among other things, one-to-one instruction and attention throughout the school day to maintain focus and for safety reasons.
• • STUDENT’s verbal abilities and his expressive language skills are severely limited. He can engage in limited word approximations to communicate some of his wants and needs but does not use language the way his typically developing siblings and peers can. STUDENT is friendly but has little tolerance for frustration. He has a hard time with appropriate social interaction and engages in sensory-seeking behaviors such as mouthing any and all available items including items that are not food. He is easily distracted and cannot focus, especially when in a busy environment in which there are a lot of people, noise, or a lot of visual stimulation.
• • REDACTED
• • REDACTED

Ms. REDACTED described the April 29, 2020, CSE meeting to plan for the 2020-2021 school year.

She explained that she and the professionals from REDACTED asked the CSE to include specific recommendations in the IEP, including a small school to limit exposure to a minimal number of other children (REDACTED), providing STUDENT with a one-to-one instructor for his safety, and teaching him using a combination of the DIR and ABA methodologies, which was allowing him to make slow and steady progress at REDACTED. The CSE rejected the requests without explanation and recommended a program with a much larger population. In June 2020, Ms. REDACTED received an IEP, Notice of Recommendation, and School Location Letter. STUDENT was assigned to “REDACTED.” By letter dated June 15, 2020, the Parent communicated her concerns and objections to the DOE and requested additional information.

(Parent Exhibit G) By letter dated August 17, 2020, Parent’s counsel reiterated the Parent’s concerns and disagreement and notified the DOE of the Parent’s intent to place STUDENT at REDACTED for the 2020-2021 school year and seek tuition payment. (Parent Exhibit H) The Parent did not receive a response to those letters to offer another CSE meeting, another placement offer, evaluations, or otherwise. The only response was to the Parent’s counsel, by letter dated September 9, 2020, stating that the matter would not be settled and that the Parent would have to file a Due Process Complaint if they were to seek tuition at the DOE’s expense for their unilateral placement. (Parent Exhibit I)

Ms. REDACTED explained that, due to STUDENT’s health and learning issues, he “requires a placement in a school that will provide him with one-to-one support in all areas to help him make meaningful progress in his academic, social, communicative, activities of daily living, regulation, behavioral, sensory, and other skills. Specifically, STUDENT needs a small, structured school and classroom environment so he can acquire skills and to learn without risking his health.” During the 2020-2021 school year, STUDENT “improved in terms of his academic, social, self-help, activities of daily living, transitional, communicative skills, eating and other skills. He can now better communicate. His behaviors and ability to attend have improved, and he has progressed in his ability to self-regulate as well as in his gross and fine motor skills.” Ms. REDACTED added that, “My husband and I regularly communicate with STUDENT’s teacher and others who work with him at REDACTED about what he is doing in school and what we can do to support STUDENT’s learning at home. The staff keeps us informed of what is going on in school and tells us how to carry over their instruction at home. At STUDENT’s parent-teacher conferences, we discuss STUDENT’s progress directly with his teacher, therapists, the school nurse, and the principal, REDACTED. We have also observed STUDENT’s classes and instruction in progress.” Ms. REDACTED stated that the tuition for STUDENT to attend REDACTED for the 2020-2021 school year was $112,000.00. (Parent Exhibit C). Ms. REDACTED stated that she cannot afford to pay STUDENT’s tuition, but understands that if she does not prevail in this impartial hearing, she will be responsible for paying any monies owed to REDACTED.

Ms. REDACTED described the April 7, 2021, CSE meeting to plan for the 2021-2022 school year.

She explained that she and the professionals from REDACTED asked the CSE to include specific recommendations in the IEP, including a small school to limit exposure to a minimal number of other children (because of his compromised immune system), providing STUDENT with a one-to-one instructor for his safety, and teaching him using a combination of the DIR and ABA methodologies, which was allowing him to make slow and steady progress at REDACTED. The CSE rejected the requests without explanation and recommended a program with a much larger population. In June 2021, Ms. REDACTED received an IEP, Notice of Recommendation, and School Location Letter. STUDENT was assigned to “REDACTED.” By letter dated June 9, 2021, the Parent communicated her concerns and objections to the DOE and requested additional information. (Parent Exhibit N) By letter dated August 17, 2021, Parent’s counsel reiterated the Parent’s concerns and disagreement and notified the DOE of the Parent’s intent to place STUDENT at REDACTED for the 2021-2022 school year and seek tuition payment. (Parent Exhibit P) The Parent did not receive a response to those letters to offer another CSE meeting, another placement offer, evaluations, or otherwise.

Ms. REDACTED again explained that, due to STUDENT’s health and learning issues, he “requires a placement in a school that will provide him with one-to-one support in all areas to help him make meaningful progress in his academic, social, communicative, activities of daily living, regulation, behavioral, sensory, and other skills. Specifically, STUDENT needs a small, structured school and classroom environment so he can acquire skills and to learn without risking his health.” Ms. REDACTED stated that, “REDACTED can and will be able to address STUDENT’s learning needs during the 2021-2022 school year. Attending REDACTED for the 2021-2022 school year will make it possible for STUDENT to improve in terms of his academic, social, self-help, activities of daily living, transitional, communicative skills, eating, and other skills.” She added that, “My husband and I regularly communicate with STUDENT’s teacher and others who work with him at REDACTED about what he is doing in school and what we can do to support STUDENT’s learning at home. The staff keeps us informed of what is going on in school and tells us how to carry over their instruction at home.” Ms. REDACTED stated that the tuition for STUDENT to attend REDACTED for the 2021-2022 school year is

$117,000.00. (Parent Exhibit X). Ms. REDACTED stated that she cannot afford to pay STUDENT’s tuition, but understands that if she does not prevail in this impartial hearing, she will be responsible for paying any monies owed to REDACTED. Ms. REDACTED testified on cross-examination that, although her testimony was being given on October 5, 5021, early in the 2021-2022 school year, she had already seen “very much” progress in STUDENT’s skills. He has become more verbal and expressive; is more focused; is better at sitting for longer periods, listening to instructions, and carrying them out without having outbursts. (T. 125)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The 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 Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

While the DOE presented a witness who had participated in the CSE meetings for both the 2021-2021 and 2021-2022 school years and in the development of the respective IEPs, her testimony certainly did not establish that the DOE had offered a FAPE to STUDENT for the 2020-2021 and 2021-2022 school years. Ms. REDACTED’s testimony was far from sufficient to demonstrate that the DOE had offered a FAPE to STUDENT She testified that, for both school years, the CSE relied completely on information from REDACTED’s teachers, related service providers, and principal, as well as from the Parent. For both years, the CSE did not conduct any evaluations, assessments, or observations of STUDENT The CSE made absolutely no contribution to the meetings or to the IEPs.

All of the information Ms. REDACTED reviewed, both in reports and verbal representations from the Parent and REDACTED, described STUDENT’s performance, needs, and challenges while in the small, structured, highly attentive, and specialized program at REDACTED. All of the recommendations and opinions of those who work directly with STUDENT and live with STUDENT clearly established that he requires the level of educational support he was receiving in order to make progress. However, and despite there being no documentation or opinions to the contrary, Ms. REDACTED somehow, twice, formed her own opinion that STUDENT would be appropriately placed in a District 75 6:1+1 class, with the other recommended services. This opinion was contrary to the consensus of the educational professionals who actually know and work with STUDENT In preparation for both school years, the CSE completely disregarded the information and very informed opinions provided, although it did not have any other information to the contrary, and then arbitrarily recommended a completely different program with no support for it. Perhaps, as suggested, the DOE faced limitations on what programs it could recommend and had to settle on the one with the most support it had to offer. Notably, the IEPs indicate the less restrictive programs that were considered for STUDENT and rejected, but do not show any more restrictive that were considered.

As described above, STUDENT’s pendency placement for the 2020-2021 school year was based on the unappealed Findings of Fact and Decision, issued by Amy Lynne Itzla, Esq., dated February 12, 2019. (Parent Exhibit B) STUDENT’s pendency placement for the 2021-2022 school year was based on the unappealed Findings of Fact and Decision, issued by Amy Lynne Itzla, Esq., dated March 3, 2021. (Parent Exhibit S) Those two decisions found that the DOE failed to offer a FAPE to STUDENT for a total of three consecutive school years. They also found that the Parent’s unilateral placement of STUDENT at REDACTED was appropriate. The instant matter demonstrates that the DOE has continued to fail in its obligations to STUDENT for another two consecutive school years, despite the findings at multiple impartial hearings.

The DOE’s failure to offer a FAPE was clear from the record based on the CSE’s recommendation. The school placement did not even need to be considered. However, since the DOE presented two witnesses to address the schools offered, it is briefly noted. Ms. REDACTED, is the Assistant Principal at SCHOOL, which consists of eight locations throughout Brooklyn. She is not the Assistant Principal who supervises REDACTED, the placement offered to STUDENT for the 2020-2021 school year. Therefore, while she stated, generally, that STUDENT’s IEP mandates could have been met by SCHOOL, she could not specifically address the location at which he would have been attending. Ms. REDACTED, a teacher and SESIS liaison at P77, testified, generally, that her school would have been able to meet STUDENT’s IEP mandates for the 2021-2022 school year, with the exception of adaptive physical education, since the school does not have an adaptive physical education program.

In addition to the DOE’s failure to establish that a FAPE had been offered, the Parent’s witnesses clearly voiced the inappropriateness of the programs and placements offered. In addition to there being absolutely no evidence presented by the DOE to support its position, the Parent offered evidence that the DOE’s recommendations were completely inappropriate.

Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case. The DOE failed to offer a FAPE to STUDENT for the 2018-2019 and 2019-2020 school years.

The Parent has the burden of establishing the appropriateness of the program they have provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private - is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The 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. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Ms. REDACTED, who is very familiar with STUDENT and has personal and direct knowledge of his learning profile, weaknesses, and educational needs, strongly agrees that REDACTED’s program was appropriate for STUDENT for the 2020-2021 and 2021-2022 school years. Ms. REDACTED and Ms. REDACTED provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program and demonstrates that it was reasonably calculated to allow STUDENT to make meaningful progress and to address his individual needs. In fact, he made meaningful progress through his participation in the program.

The DOE has not made any meaningful challenge to the appropriateness of REDACTED for STUDENT for the 2020-2021 and 2021-2022 school years. The appropriateness of STUDENT’s unilateral placement at REDACTED was only addressed in the DOE’s closing argument, during which it stated that REDACTED was “too restrictive.” The DOE stated that STUDENT was described as child “who gets along with everybody amazingly” and that he has “receptive and expressive language skills that are more towards the higher end of the group in which he has been placed.” That was the entirety of the DOE’s challenge. (T. 199-200)

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

The DOE did not offer any equitable consideration that would preclude or diminish an order in favor of the Parent. The record reflects the Parent’s continuous communication and cooperation with the DOE. There is clearly no basis on which to reduce or modify the remedy for the Parent.

ORDER

• • The DOE failed to offer a FAPE to STUDENT for the 2020-2021 and 2021-2022 school years;
• • The Parent’s unilateral placement of STUDENT at REDACTED Academy was appropriate for the 2020-2021 and 2021-2022 school years;
• • There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,
• • The DOE shall directly pay to REDACTED Academy the tuition for STUDENT for the 2020-2021 school year, in the amount of $112,000. Payment shall be made immediately upon the submission of an invoice from REDACTED Academy to the DOE.
• • The DOE shall directly pay to REDACTED Academy the tuition for STUDENT for the 2021-2022 school year, in the amount of $117,000. Payment shall be made immediately upon the submission of an invoice from REDACTED to the DOE.

Dated: July 6, 2022 Amy Lynne Itzla, Esq.

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2021

REDACTED

Attorney

Parent

REDACTED

Mother

Parent

REDACTED

Principal, REDACTED Academy

Parent

REDACTED

CSE Representative

DOE

REDACTED,

School Psychologist

DOE

REDACTED

Assistant Principal

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2021

REDACTED Esq.

Attorney

Parent

REDACTED

Mother

Parent

REDACTED

CSE Representative

DOE

REDACTED,

School Psychologist

DOE

REDACTED

Teacher

DOE

DOCUMENTATION ENTERED INTO THE RECORD

REDACTED