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CASE NUMBER: 548346 – NYC: 204807
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 17, 2021
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 21, 2021
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 20, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 17, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 22, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 29, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 21, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 21, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 20, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 19, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 14, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 18, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 15, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 1, 2022
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 6, 2023
For the Student:
REDACTED, Esq. Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 17, 2023
For the Student:
REDACTED, Esq. Parent Attorney
REDACTED Parent/Mother
REDACTED Educational Director at REDACTED
For the Department of Education:
REDACTED DOE District Representative, CSE REDACTED
INTRODUCTION
On November 8, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] ("IDEA") by the parent (Parent) of REDACTED (REDACTED) for the school year 2020/21. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about December 10, 2020. The DPC is carried under New York City ("NYC") Case No: 204807. The impartial hearing was held over a series of dates to complete the record on January 17, 2023. The record officially closed on February 18, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITIONS OF THE PARTIES
REDACTED is student known to the DOE as a student with a disability, classified "Autism" (Exhibit A). She has been diagnosed with Pervasive Developmental Disorder (Not Otherwise Specified), and presents with delays in the areas of academic skills, receptive language, expressive language, pragmatic language, articulation, sensory and auditory processing, social/emotional, attention and concentration, retention, and memory, ocular motor, fine motor, and gross motor skills, reflex integration, and oral motor skills, She also struggles with activities of daily living and presents with behaviors that interfere with her learning and classroom performance, including non-compliance, being self-directive and impulsive and difficulty with attention and concentration (Exhibit A). Parents allege that for the 2018/19 school year the CSE developed an IEP recommending REDACTED attend a 6:1:1 Special Class in a NYC DOE Specialized School, with related services. Parents disagreed, parentally placed REDACTED at the REDACTED (REDACTED), challenged the recommendation and prevailed in the impartial hearing process. For the 2020/21 school year the CSE convened on or about February 11, 2020 and recommended the same program Parents had previously rejected (Exhibit A). The Parents allege the DOE failed both procedurally and substantively to offer REDACTED a FAPE for the 2020/21 school year, particularly in that: (1). the CSE lacked sufficient information on which to base its recommendation as they failed to conduct sufficient evaluations of REDACTED and failed to evaluate her in all areas of suspected disability; (2). the CSE failed to provide adequate notice of the CSE meeting in that the notice of the meeting failed to indicate all of the expected participants, the IEP team was not duly constituted, and the CSE failed to ensure that all team members had access to all materials considered by the team; (3). the team had predetermined decisions regarding its recommendations based on district policy instead of REDACTED's individual needs; and (4). the NYC DOE failed to provide REDACTED with an IEP or placement recommendation in a timely manner for the start of the 12-month 2020/21 school year. The Parents gave notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and gave notice of their intent to unilaterally place REDACTED at REDACTED and seek funding if an appropriate program and placement was not offered by the start of the 2020/21 school year (Exhibit C). The DOE failed to substantiatively respond and as a remedy for the DOE's failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks direct funding/reimbursement for REDACTED's unilateral placement at REDACTED for the 2020/21 school year (Exhibits A and C, T @ 88-89 and 184-185).
In an effort to support their position, the parents presented two witnesses: REDACTED, educational director at REDACTED, and REDACTED, REDACTED's mother, along with a documentary exhibit package consisting of fifteen pieces of evidence (Exhibits A-O).
The DOE asserted that a FAPE was provided to REDACTED for the 2020/21 school year in that the IEP in place provided a very highly, very structured, specialized educational program and that the recommended placement at REDACTED, would be able to provide the special class and the related services. The DOE representative presented REDACTED is a specialized school setting in which the related service providers and the classroom teacher could work very closely together in supporting REDACTED and making progress towards the goals that had been set for her (T @ 84-85). However, the DOE failed to submit any documentary exhibits or present any witnesses (T @ 82) to validate a foundation in support of its recommended program and placement.
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child's strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student's requirements and needs, the team must review and consider evaluations, assessment and information provided by the child's parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's 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. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents' claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. The failed to present any witnesses or evidence in support of its burden to show that the educational program it recommended for REDACTED was appropriate or reasonably calculated to convey meaningful academic and functional benefits to the Student or to overcome the numerous allegations contained in Parent's DPC regarding the sufficiency of the IEP for the 2020/21 school year but merely provided a narrative. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983.
Herein, upon due consideration, I find the DOE failed to meet its affirmative burden of showing that it provided a FAPE to the Student for the 2020/21 school year by providing an appropriate IEP and placement for REDACTED, resulting in a denial of FAPE.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents' unilateral placement of the student at REDACTED. 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 (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction". (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
In the case at hand, the DOE did not provide any witnesses to rationalize its recommended program for REDACTED but merely presented a narrative. The DOE cross-examination of the parent witnesses did not raise material challenge to Parent's contentions as to the appropriateness of the unilateral placement. Contrarily, the evidence and testimony presented by the Parent supports that REDACTED was an appropriate placement for REDACTED during the 2020/21 school year.
As per the submitted documents, REDACTED is described as "a program that uses a therapeutic consultative model to address areas of sensory-motor development, speech and language, academics, behavior and nutrition……Individualized programming is developed based on assessments and each student's unique needs……Through the consultative model, the student is immersed in a therapeutic environment throughout the day which provides intensity and promotes increased progress and generalization of skills…..One-to-one teaching enables each student to receive individualized skillbased instruction as well as the behavior support necessary to participate in small group activities" (Exhibit D).
REDACTED described in detail the program at REDACTED (T @ 94-99) and attested to being very familiar with REDACTED. She stated:
"She struggles a lot with attention span, with sensory processing, with motor planning. She definitely struggles a lot with consistency, with retention of, you know, things that she's learning, of keeping her body calm and in check to actually comply with, you know, specific demand……..And then she really struggles with, you know, learning, you know, abstract concepts, and even concrete concepts really have to be taught in a way that she could really retain it and use it, you know, to build foundation….Any fine motor or gross motor activities really – were really hard for her, and that needed a lot of intense work, a lot of -- and then in addition, she struggled with auditory processing, sensory processing, and those were really addressed throughout the school year" (T @ 100-101).
"ABA was absolutely necessary. The structure of the program, the breaking down of tasks, the data collection, responding correctly by function to her behavior, and breaking down, and academically, those are really things that she really needed in order to make progress and learn and retain those skills" (T @ 105)
"One to one instruction was an important component of her program that year given her profile……the difficulty she has with learning, the difficulty she has with spacing out and attention, the individual style curriculum that she required…….the use of ABA, that can only be done in a one-to-one setting where a teacher can teach her in a non-distracting environment and providing the feedback immediately…..the fact that we individualize the session, provide the sensory input, providing sensory breaks, using the right amount, the language to -- when you're asking those questions, incorporating those pieces together, that was extremely vital for her progress, and that can only be done in a one-to-one setting" (T @ 106).
She opined that REDACTED was appropriately placed REDACTED for the 2020/21 school year and made progress in that setting. REDACTED expressed:
"I believe that our ability to provide an individualized curriculum to address her many, you know, sensory motor, speech and language deficits, her learning issues, her, you know, overall weaknesses, we were able to provide that instruction in a multisensory way, in an individualized manner. Also, we were able to provide her with a functional, socially appropriate peer group and then a balance of, you know, group instruction as well as, you know, individual instruction and -- which all contributed to the progress that she's made" (T @ 133). Review of REDACTED's progress report corroborates her progress throughout the 2020/21 school year at REDACTED (Exhibit G-J).
REDACTED, REDACTED's mother testified that she expressed her concerns to the IEP team that REDACTED requires one to one instruction and ABA support, she testified to not receiving either an IEP meeting or a placement for the 2020/21 school year, she expressed that had she received an appropriate program and placement for REDACTED she would have considered it and sent her, she articulated that she believes REDACTED to be an appropriate placement for REDACTED and that the DOE has funded that program for prior school years, and further testified that her family household income does not afford the opportunity to pay the tuition at REDACTED (T @ 149-166).
The DOE contends that REDACTED is not the student's LRE, particularly stating REDACTED does not present with behavioral issues or academic issues that are of a severe delayed or a profound nature that would warrant the support of having a child in a one to one setting for reading and math instruction (T @ 187). While the restrictiveness of the parental placement may be considered as a factor in determining whether the parents are entitled to an award of tuition reimbursement (Raffeety v. Cranston Pub. Sch Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]]; M.S., 231 F.3d at 105; Schreiber v. East Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 549 [S.D.N.Y. Mar. 21, 2010]; W.S. v. Rye City Sch. Dist., 454 F. Supp 2d 134, 138 [S.D.N.Y 2006]; Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp 2d 477, 482-83 [S.D.N.Y 2007], parents are not as strictly held to the standard of placement in the LRE as are school districts (see Carter, 510 U.S. at 14-15). According to the Second Circuit, LRE is only one factor in the "totality of circumstances" standard.
The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED's needs and that she received a highly individualized instruction that enabled her to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2020/21 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was "specifically designed to meet the unique needs" of the student Frank G, supra and that REDACTED has made progress therein (Exhibits G-J). Prong III:
Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, "the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2020/21 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE's obligation to provide a FAPE for the Student for the 2020/21 school year. REDACTED's Parents put the DOE on notice of REDACTED's unilateral placement and their intent to seek reimbursement (Exhibit C). As per Parent's credible assertion, the DOE failed to address the Parent's concerns or to develop an alternative program or placement recommendations.
This case involves a situation where the Parent's financial circumstances limit their ability to make payment to REDACTED (Exhibits M-N and T @ 156-162, 166-167). REDACTED testified that the family income renders a hardship to pay the annual tuition. Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent's claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:
"By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant "all" disabled children access to needed services could undermine that very goal by making such access dependent upon a family's financial situation."
I find (1). that the DOE failed to offer the student a FAPE for the 2020/21 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was "reasonably calculated" to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents' request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2020/21 school year.
Based upon the foregoing,
ORDER
It is hereby ordered that within thirty (30) days of receipt of this Order,
1. The Department of Education shall directly fund the cost of the student's tuition at The REDACTED for the 2020/21 school year in the amount of $109,000. All payments shall be supported by the presentation of appropriate documentation;
2. The Department of Education shall directly fund/reimburse the cost of transportation for the 2020/21 school year in the amount of $5,400.00.
This Order shall exclude any payment that may have been previously paid by the DOE pursuant to the Pendency Agreement.
Dated: March 4, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 17, 2023
A. Parent: Impartial Hearing Request, 12/10/20 - 7pp
B. Pendency Agreement, 01/25/21 - 2pp
C. Letter from Parent to CSE with Email Confirmation, 06/18/20 - 3pp
D. Private School Program Description, Undated - 4pp E. Remote Learning Plan, 2020/21 - 4pp
F. Class Schedule, 2020/21 - 1pp
G. Educational Progress Report, 06/2021 -6pp
H. Speech Therapy Report, 06/2021 -3pp
I. Occupational Therapy Mid-Year Report, 01/07/21 - 2pp
J. Physical Therapy Mid-Year Report, 12/31/20 - 2pp
K. Enrollment Contract and Addenda, 07/01/20 – 7pp
L. Tuition Affidavit, 06/11/21 – 1pp M. 2021 U.S. Individual Income Tax Return, 2021 -2pp N. 2021 U.S. Individual Income Tax Return,, 2021 -3pp
O. CSE Meeting Notice with Envelope, 11/27/2019 -4pp