New York City Department of Education, Impartial Hearing Decision

NYSED # 543156 / NYC # 199788

FINDINGS OF FACT AND DECISION

Case Number: 199788

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

NYC ID# 241-986-520

Hearing Requested by: REDACTED

(hereinafter referred to as “Parent(s)”)

Dates of Hearing: 5/19/22, 6/10/22

Record Close: 7/20/22

Hearing Officer: Tiffany Hamilton

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/19/2022

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/10/2022

REDACTED

For the Department of Education:

REDACTED

I. Introduction and Procedural History

This matter comes before the undersigned Hearing Officer at Parent’s request, via a due process complaint filed on September 8, 2020 and amended on November 18, 2021. Parent charged that the DOE failed to provide Student with a free appropriate public education (FAPE) under federal and state law for the 2020-2021 school year. Parent requested the instant hearing seeking reimbursement for Student’s enrollment in the REDACTED School, the costs of Special Education Itinerant (SEIT) and Special Education Teacher Support Service (SETSS) hours (1.5 x 60), speech and language therapy (2x45), occupational therapy (1x90x2 + 2x45), ABA (up to 4x60), and counseling (up to 11x60). At the hearing, Parent withdrew the request for occupational therapy (Transcript at 231).

The undersigned was appointed as a Hearing Officer on August 23, 2021. A pre-hearing conference and subsequent status conferences were held, and extensions of the compliance date were entered in the record as appropriate pursuant to regulations.

II. Jurisdiction

This due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), as amended in 2004, codified at 20 U.S.C. §§ 1400, et seq.; the federal regulations implementing IDEA, 34 C.F.R §§ 300.1, et seq.; and Article 89 of the New York State Education Law.

III. ISSUES PRESENTED AND PARTIES’ POSITIONS The issues to be determined in this matter are whether the DOE failed to provide Student with a FAPE for the 2020-2021 school year, and whether the funding of tuition and related services is an appropriate remedy.

Parent contends that the DOE failed to provide Student with a FAPE for the 2020-2021 school years in that no CSE meeting was held, no IEP was developed, and no program or placement was recommended or offered to student prior to the start of the school year. An IEP meeting was eventually held on December 17, 2020, but still no IEP was developed and no placement was offered to Student.

The DOE did not present a case at the hearing but argued that the relief sought should be denied in part. The DOE argues that no objective evidence was presented to show that Student requires at-home ABA services, and that Student did not display problematic behaviors at school. The DOE also argues that the request in the DPC for occupational and physical therapy and counseling be denied, as no evidence was presented in support of these claims. Finally, the DOE argues that it is not required to fund services that go above and beyond what the Student requires to receive an appropriate education.

IV. EVIDENCE

The Parent submitted 39 disclosure documents, all of which were entered into the record. The District did not present any evidence.

V. FINDINGS OF FACT

• • Student is an REDACTED -year-old REDACTED classified as having a speech or language impairment. He has been diagnosed with Autism Spectrum Disorder. Student also suffers from a mitochondrial weakness that leads to frequent illness, and results in periods of significant academic, social, and emotional regression (P. Ex. A - 1).
• • Student first received services through Early Intervention, and later received an IEP for the 2018-2019 school year that was rejected and ultimately deemed inappropriate. No IEP was offered by the CSE for the 2019-2020 school year, and Parents placed student privately at the REDACTED school. Parents filed a due process complaint, and in a decision dated October 26, 2021, a Hearing Officer determined that the placement was appropriate and that tuition should be reimbursed for the 2019-2020 school year, along with all related services. (P. Ex. G-26).
• • The CSE did not convene at the start of the 2020-2021 school year to create an IEP for Student, and Parents continued to enroll Student at REDACTED. The CSE eventually invited Parents to participate in an IEP meeting, which was held on December 17, 2020. Parents did not receive an IEP or a placement recommendation following this meeting (P. Ex. A-2).
• • During the 2020-2021 school year, Student was in a REDACTED first grade classroom. In terms of services, he received 1:1 a special education program, as well as ABA, counseling/floortime, and speech-language therapy on a 12-month basis. Student’s speech services were received outside of school, due to Covid. Student made notable progress during the year, both academically and well as from a social and emotional standpoint. (Parent Exs. M-2, KK-2).
• • REDACTED, Student’s SEIT, began working with Student in 2016. During the summer of 2020, she saw student remotely for fifteen hours per week, due to Covid, and then supported Student fifteen hours per week in the classroom for the 2020-2021 school year. Her work with Student in the classroom included helping him adjust and maintain his focus in the classroom, verbal communication, writing, and drawing. She also helped him to identify triggers, redirect, and remain on task. REDACTED testified that student made progress throughout the 2020-2021 school year. (Parent Ex. JJ 2-4; Transcript at 82-83).
• • REDACTED, Student’s speech pathologist, began working with Student when he was two and a half years old. During the 2020-2021 school year, she saw him once a week after school, for 60 minutes. This differed from previous school years, where she saw him three times a week. His challenges at the beginning of the 2020-2021 school year included deficits in emergent literacy and pragmatic language. Their sessions during the school year therefore focused on language. Remote sessions were not held because Student responded better to in-person learning. (Transcript at 125-126).
• • During the school year in question, Student consistently made progress in reading and writing, although his skills remained below where they should have been at 1st grade. (Transcript at 132).
• • REDACTED worked with Student during the summer of 2020, in person at her office. They worked on language, reading and writing, given that he had a history of regression when not receiving consistent services. (Transcript at 134).
• • REDACTED noted that Student benefits from exposure to the language of typically developing peers, and that he requires intensive, full-time, one-on-one support by a highly trained provider, with services on a 12-month basis. (Transcript at 135).
• • REDACTED has been providing special education services to Student since he was approximately two years old, through her agency, the REDACTED Dream Team. REDACTED also worked with him directly (Transcript at 161).
• • REDACTED provided services to Student during the summer of 2020, opening her offices exclusively for him and one or two other significantly delayed children, in order to prevent him from regressing. (Transcript at 162).
• • REDACTED testified that she has witnessed when Student regresses. She explained that he shuts down, and appears almost “catatonic,” as if he is not present. Student also exhibits tic-like movements, and other behaviors that they worked on eliminating (Transcript at 166).
• • Student made significant progress during the 2020-2021 school year, according to REDACTED. His reading and writing and math skills improved, and he benefited from exposure to other neurotypical children. (Transcript at 202-203).
• • REDACTED, Head of the REDACTED School, observed student at least once per week during the 2020-2021 school year, noting that his SEIT helped him to engage in verbal communication, complete writing and drawing tasks, interact with peers and classroom teachers, and remain focused in the classroom. (P. Ex. MM-2, JJ-2).
• • REDACTED observed Student’s progress throughout the school year, noting that he became more confident, mature, and social, and was able to grow academically. (Ex. MM-3).
• • REDACTED provided ABA services to Student two days per week for two hours at Student’s home, to help address avoidant or self-stimulatory behaviors and to identify issues with completion of tasks. She focused on reading, writing and math, and used positive reinforcement, natural environment teaching, and other methods. She also spent time on communication, following directions, and keeping Student focused (P. Ex. LL-2).
• • REDACTED testified that Student made progress during the 2020-2021 school year. He was more focused, threw fewer tantrums, engaged in less avoidant behaviors, and his reading, writing and language improved. (P. Ex. LL-2).
• • Parent testified via affidavit that he spent the following amounts on tuition and related services during the 2020-2021 school year:
• • $49,940 – tuition for REDACTED
• • $9150 – Speech and Language therapy (REDACTED)
• • $20,425 – ABA (REDACTED)
• • $75,410.00 – SEIT/SETSS (REDACTED).
• • Parents noted that REDACTED services were directly funded.

VI. CONCLUSIONS OF LAW

1. The School District denied Student a FAPE.

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Here, the DOE did not present a case or witnesses and thus has not met its the burden of showing that it provided a FAPE to Student. In addition, the evidence and testimony presented further demonstrate that the DOE failed to provide Student with a FAPE. At the start of the 2020-2021 school year, the DOE did not offer student a placement or hold an IEP meeting. Even after an IEP meeting was held in December 2020, no placement was offered. Therefore, no FAPE was provided.

2. Parent is entitled to tuition reimbursement/direct funding for the 2020-2021 school year.

A school district may be required to pay for educational services obtained for a student by his or her parent, if (i) the services offered by school district were inadequate or inappropriate, (ii) the services selected by the parent were appropriate, and (iii) equitable considerations support the parents' claim. See M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F. 3d 96, 102, 104 (2d Cir. 2000), cert denied, 532 U.S. 942 (2001); see also Walczak, 142 F.3d at 129 (citing Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985)). These three factors are known as the "Burlington factors." i) Appropriateness of School District Program

Given the above determination that the school district denied Student a FAPE for the 2020-2021 school year, Parent has met the first of the three Burlington factors for tuition reimbursement. ii) Appropriateness of Parent Placement

Under the second prong of Burlington, a parent bears the burden of proving the appropriateness of the services sought for a student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a child with a disability. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. Here, Parent must demonstrate that Sterling offered an educational program designed to meet Student’s special education needs. The test is not whether the private placement is perfect, but rather whether it is appropriate. See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999).

I find that in this case Parent has met the burden of demonstrating the appropriateness of Student’s program at the REDACTED School. I credit the testimony of REDACTED, the Head of School, who testified about the effectiveness of the school’s curriculum. She observed Student in the classroom at least once per week during the school year, and indicated that he made progress academically, socially, and emotionally. (P. Ex. MM-3).

Although REDACTED follows a 10-month program, the record demonstrates that is nonetheless an appropriate placement when coupled with SEIT/SETSS, ABA and speech and language services on a 12-month basis. Student’s providers all testified that he made notable progress at the school during the 2020-2021 school year. The provision of additional services during the summer of 2020 enabled Student to avoid regression. Student became a better reader and writer, and grew stronger in math. He also made notable social and emotional progress.

For the reasons noted above, I find Parent has met the burden of demonstrating that the chosen program was an appropriate placement for Student for the 2020-2021 school year. iii) Equitable Considerations The third prong of the Burlington analysis requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if, notwithstanding being advised to do so, a parent neither informs the CSE of his or her disagreement with its proposed placement and his or her intent to place the child in a private school at public expense at the most recent CSE meeting prior to the removal of the child from public school, nor provides the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, there was no evidence that Parent did anything but cooperate with the DOE at all times. Parent participated in each step of the process and raised concerns in a timely manner. The DOE did not present a case, and thus did not argue that the equities did not favor the parent in this case.

I find that Parent has prevailed in proving that the DOE failed to offer Student a FAPE for the 2020-2021 school year, and that the program chosen by the parent (REDACTED program supported by 1:1 classroom support (SEIT/SETTS services), at-home ABA, and speech/language therapy on 12-month basis) was appropriate. I further find that the equities in this case favor Parent.

No evidence was presented that Student received occupational therapy, physical therapy or counseling, so no reimbursement for these services is warranted.

ORDER

• • The DOE shall reimburse Parent, upon receipt of proof of payment, for the cost of the Student’s 2020-2021 school year placement at the REDACTED School, as well as the cost of related services (1:1 classroom support (SEIT/SETTS services), ABA/counseling, and speech/language therapy on 12-month basis).

IT IS SO ORDERED.

Dated: August 3, 2022

Tiffany Hamilton

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 proceedings 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.

EXHIBITS

PARENT’S EXHIBITS

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