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Special Education Law
DECISIONMixed ResultIHO Case No. 206342

New York City Department of Education, Impartial Hearing Decision

September 29, 2022·Sebastian A. Weiss·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 550009 - NYC: 206342

FINDINGS OF FACT & DECISION

Case No.: 206342

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent”)

Hearing Date(s): 2/8/22, 3/29/22, 4/5/22, 5/11/22

Record Close Date: 9/15/22

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Representative”)

[REDACTED]

(“Parent or Mother”)

[REDACTED]

(“Unilateral Placement Supervisor”)

For the Department of Education:

[REDACTED]

(“District Representative”)

[REDACTED]

(“Social Worker”)

BACKGROUND AND PROCEDURAL HISTORY

On January 27, 2021, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The relief sought by the DPC includes direct payment of tuition for the Student’s unilateral placement at [REDACTED] (“Unilateral Placement”) for the ten month 2020-21 school year (“School Year”). (Ex. A).[1]

The undersigned Hearing Officer was appointed to the above matter on December 3, 2021. A prehearing conference was conducted on December 17, 2021. The hearing on the merits was conducted on February 8, March 29, April 5, and May 11, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to provide an appropriate placement for the Student, which forced the Parent to place the Student at the Unilateral Placement. (Ex. A-2)

The Parent’s case is based on the following arguments:

The Student’s last educational program was an IESP created on July 9, 2019. The District failed to have an updated education program in place for the Student at the start of the School Year, and accordingly the Student was denied a FAPE for the School Year. (May 11 T 169)

The District has the burden of proof to show that they created and implemented an appropriate special education program for the Student. (Feb. 8 T 31)

The Individualized Education Services Program (“IESP”) created on July 9, 2019 and the Individualized Education Program (“IEP”) created on December 16, 2020 were inadequate and insufficient to enable the Student to make meaningful academic progress during the School Year in light of the student's significant cognitive, academic, behavioral, and social challenges. (Id 32-3)

For the School Year, the Student required placement in a full-time special education classroom of up to 12 students, one teacher, and one assistant. (Id 19; Ex. A-1) The Student also required the development and implementation of a behavioral plan to address the behaviors that impeded the Student's ability to learn, and the related services recommended for the Student on his IESP. (Id 33)

Although the IEP recognized the Student's need for placement in a 12:1:1 classroom, it was inadequate and inappropriate to meet the Student's needs because it only recommended the placement of the Student in a 12:1:1 class for a total of 15 periods per week. (May 5 T 170)

By letter sent on September 16th, 2020, the Parent requested that the District evaluate the Student and place him in a full-time special education classroom. The Parent also notified the District of their intent to unilaterally place the Student. (Id)

By letter sent on January 1st, 2021, the Parent notified the District that she had not received a proper or adequate placement for the Student and of her intent to unilaterally place the Student and commence proceedings to seek tuition funding and/or reimbursement for the unilateral placement. (Id)

The Unilateral Placement was an appropriate placement for the Student during the School Year. (Id 34) The Unilateral Placement developed a customized plan to address the Student's particular needs and to enable him to make academic and functional progress, and the Student made actual progress at the Unilateral Placement during the School Year. (Id)

There is no indication that the Parents failed to cooperate with the District, or engaged in any conduct that prevented the District from fulfilling its obligation to the student. (May 5 T 172)

The Parents were not required to submit a Ten Day Notice because the Student was not being removed from a public school, and a public school placement was not offered. (May 11 T 162-4) The Parent Representative cited the M.G. v. District of Columbia case as support. (Id)

The Parent is seeking an award of direct payment of tuition at the Unilateral Placement for the School Year in the amount of $95,000, which represents the tuition amount less the portion of tuition that is allocated to religious instruction. (Feb. 8 T 34)

The Parents presented thirteen (13) alphabetically listed documents into evidence. The Parents also presented the testimony of the Unilateral Placement Supervisor and the Student’s Mother. The District Representative objected to the Parent’s Exhibit K, which is labeled as a Ten Day Notice, on the basis that it was not timely. (Feb. 8 T 28) The Parent Representative responded that the Ten Day Notice requirement was not applicable because the Student previously attended a private school and was not being removed from a public school placement. (Id 28-9) Exhibit K is admitted into evidence despite the District’s objection.

DISTRICT CASE:

The District did not present a Prong I case. (Feb. 8 T 19, 30). The District submitted one document into evidence and presented the testimony of one witness. The District Representative also cross-examined the Parent witnesses.

The District presented the following arguments during the hearing:

If tuition reimbursement for this Student is awarded, it should be reduced by the amount of days from the day that the Parent notified the District, which is September 16th. (May 11 T 161)

The District, by law, has 60 days from September 16th to produce the IEP. It is the District's position to reduce the request of reimbursement by that 60 days, and in addition, to reduce it by the amount of religious instruction that is being provided in the school. (Id)

The Social Worker testified that they could not have spoken with the Parent in August, and it was not possible for the parent to have informed the District representative in August that she is unilaterally placing the Student. (Id)

The District was not obligated to provide a prior written notice or placement notice to the Parent because the Student was receiving services paid by the District pursuant to an IESP. (May 11 T 163)

Fair notice from the Parent was required to inform the District of the parent's intentions. (May 11 T 165)

The Student's teacher at the Unilateral Placement was teaching out of license, as her licensure specifically states that she is authorized to teach until 2nd grade. (April 5 T 60)

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 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. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See 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. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. 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. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

FINDINGS OF FACT

At the beginning of the School Year, the Student was a seven year old boy entering the third grade. (Ex. C-1) Born on December 31, the Student is the youngest in his class. (Ex. B-2) The Student is easily distracted and has difficulty following directions. (C-1) The Student cannot regulate his feelings or impulses appropriately (C-3) For example, he cries and throws things when he does not get his way and will cry for an average of 10-minutes each time. (Id) In addition, the Student stutters (C-1)

On July 9, 2019, the District developed an IESP for the Student for the 2019-2020 school year (“2019 IESP”), which sets forth a disability classification of Speech and Language Impairment and recommends the following educational program: (Ex. B-15)

  • • Special Education Teacher Support Services (SETSS), Group Service, five periods per week;
  • • Speech-Language Therapy, Individual Service, three 30 minute periods per week;
  • • Occupational Therapy (“OT”), Individual Service, two 30 minute periods per week;

The Placement Recommendation section of the 2019 IESP states that the Student is “Parentally Placed in a Non-Public School”. (Ex. B-17)

In connection with the 2019 IESP, the Student’s cognitive development was assessed with the Wechsler Intelligence Scale for Children Fifth Edition (WISC-V) (“2019 District Evaluation”). (Ex. B-3) The FSIQ score is derived from seven subtests and summarizes ability across a diverse set of cognitive functions. (Id) This score is typically considered the most representative indicator of general intellectual functioning. Subtests are drawn from five areas of cognitive ability: verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed. (Id) The Student’s FSIQ score was in the very low range when compared to other children his age. (Id)

With respect to verbal comprehension, The Verbal Comprehension Index (“VCI”) measured the Student’s ability to access and apply acquired word knowledge. (Id) Specifically, this score reflects his ability to verbalize meaningful concepts, think about verbal information, and express himself using words. Overall, the Student’s performance on the VCI was lower than most children his age (Id).

With respect to Academic Functioning, the WIAT-III was administered to assess the Student’s level of academic achievement. (Ex. B-6) For reading, the Student performed within the average range on the Basic Reading Composite and in the below average range for the Early Reading Skills subtest. (Id B-8) For mathematics, the Student performed within the low range. (Id) For written language, the Student performed within the below average range on the Alphabet Writing Fluency subtest and the Spelling subtest. (Id)

For the 2019-20 school year, the Student attended [REDACTED], a non-public school (“Prior Placement”).

On October 8, 2020, the Student was evaluated by the District using the Vineland Adaptive Behavior Scales – Third Edition Domain-Level Interview Form, parent interview, and direct observation (“2020 District Evaluation”). (Ex. C-1)

The Vineland-3 assesses the ability to perform daily activities and examines Communication Skills, Daily Living Skills, Socialization, as well as Maladaptive Behaviors. (Id)

The Student’s overall adaptive functioning was in the Moderately Low range, where he performed better than 5% of same-aged peers. (Id)

The Student achieved a Communication standard score in the Moderately Low range, which means he performed better than 5% of same-aged peers. (Id)

The Daily Living Skills domain assesses the Student’s performance of the practical, everyday tasks of living that are appropriate for his age. (Id) His standard score for Daily Living Skills was in the Moderately Low range which is better than 10% of same-aged peers. (Id)

The Socialization domain reflects the Student’s functioning in social situations. (Id) His Socialization standard score is 76 in the Moderately Low range, which is better than 5% of his peers. (Id)

The Maladaptive Behavior domain provides a brief assessment of internalizing (i.e., emotional) and externalizing (i.e., acting-out) problem behaviors. (Id) The Student received an Internalizing Behavior v-scale score in the Average range and Externalizing Behavior v-scale score in the Elevated range. (Id)

On December 16, 2020, the District developed an IEP for the Student with an implementation date of January 2021 and a disability classification of Speech or Language Impairment (“2020 IEP”). (Ex. C) The 2020 IEP recommends the following educational program: (Ex. C-12)

  • • 12:1+1 Special Class with 5 periods per week of math, 5 periods per week of ELA, 3 periods per week of social studies, and 3 periods per week of math;
  • • Occupational Therapy, Individual Service, 2 periods of 30 minutes per week;
  • • Speech-Language Therapy, Individual Service, 3 periods of 30 minutes per week;

The 2020 IEP recommends placement in an NYC DOE Non-Specialized School. (Id C-16)

On August 26, 2020, the Mother entered into a Student Contract with the Unilateral Placement. (Ex. D) The Unilateral Placement tuition amount is $100,000 for the school year of September 10, 2020 to June 14, 2021, or $10,000 per month, with $5,000 attributable to religious instruction. (Ex. D-1, F-1)

The Student’s Curriculum Schedule at the Unilateral Placement includes the following: (Ex. G)

  • • REDACTED;
  • • English Language Arts;
  • • Literacy;
  • • Social Skills/Sports Program;
  • • Social Studies;
  • • Writing Workshop;
  • • Meal Time: Social Integration;
  • • Mathematics;
  • • Specials: Music/Media Art;
  • • Current Events;
  • • Library;
  • • Science;
  • • Occupational Therapy, 2x30, Individual;
  • • Speech Language Therapy, 3x30, Individual;

During the School Year, the Unilateral Placement prepared the following for the Student: (Ex. I)

  • • Functional Behavior Assessment;
  • • Treatment Plan;
  • • Assessment of Current Functioning;
  • • Behavior Intervention Plan;

On December 10, 2020, the Unilateral Placement prepared a Teacher Progress Report of the Student. (Ex. I-17-19)

In June 2020, the Unilateral Placement prepared another Teacher Progress Report, as well as an OT Report and Speech Progress Report. (Ex. I 20-29)

On September 16, 2020, the Mother submitted a letter to the District via fax. (Ex. J) The letter, dated August 31, 2020, states that the Student’s academic, social and behavioral needs are not met in a general education classroom and requests that the District evaluate the Student and place him in a full time special education classroom. (Id) The letter further states that the Parent intends to unilaterally place the Student at the Unilateral Placement. (Id)

On January 21, 2021, the Mother submitted another letter to the District via fax with the heading “Ten Day Notice”, which reiterates the Parent’s intention to place the Student at the Unilateral Placement (“Ten Day Notice”). (Ex. J)

The Parents also presented into evidence the New York State Benefit Identification Card of the Student. (Ex. E)

WITNESS TESTIMONY

Unilateral Placement Supervisor The Parent presented the testimony of the Unilateral Placement Supervisor at the hearing and by affirmation. (Ex. L) A summary of the relevant testimony of this witness includes the following:

The Unilateral Placement Supervisor has the following credentials: (Ex. L-1)

  • • New York State licenses and master's degrees in general education, special education, and literacy;
  • • Master's degree and license as a school building leader, which is a principal’s license;
  • • Master's degree and license as a behavior analyst;
  • • Pursuing a dissertation for a doctorate in educational leadership;

The Unilateral Placement Supervisor has been a professional in the field of education and special education for approximately nineteen years and a behavior analyst since 2007. (Id)

During the School Year, she was the program supervisor at the Unilateral Placement. (Id)

The Student started attending the Unilateral Placement in September of 2020 (April 5 T 68)

The inception of the Unilateral Placement was at the beginning of the School Year. (Id 69)

The Unilateral Placement was created as a result of another general education program, [REDACTED], shutting their preschool program through grade 4. (Id 69) The Student previously attended the general education program. (Id 70)

The Unilateral Placement was opened to accommodate 30 percent of the students who could not fit into general education buildings and had nowhere to go. (Id)

The Unilateral Placement was housed in a separate wing of [REDACTED]. (L-2)

Each class operated by the Unilateral Placement had a corresponding general education class operated by [REDACTED] which allowed the students to have opportunities to integrate with general education peers, including for religious studies, during our social skills program, and during mealtimes. (Id) This afforded the Student the opportunity to engage and benefit from positive peer models, and to maintain and build his confidence and self-esteem by feeling as though he was part of a general education school and environment. (Id)

The Unilateral Placement Supervisor first met the Student at the beginning of the School Year. (April 5 T 77)

The Student entered the School Year with delays in multiple areas, including the cognitive, academic, and social/behavioral domains. (Ex. L-4)

At the beginning of the School Year, the Unilateral Placement conducted a Functional Behavior Assessment of the Student (Ex. L-3)

The Student met with a school psychologist as well as the principal, and was assessed approximately a week before the school year started. (April 5 T 68-9) He was assessed individually and observed in his home setting and the school location. (Id) Based on the direct assessment and direct observation, along with prior reports and communication with his previous school, there was a determination that the Student was an appropriate fit for the Unilateral Placement. (Id)

During the School Year, the Unilateral Placement consisted of approximately thirty-five students in grades K through 4th grade. (Ex. L-2)

The Student was in a self contained special education class with five students and two teachers, one licensed special education teacher and one teacher that is the co-teacher assistant that is not licensed in the State of New York. (Id 70) The other students in the class have IEPs. (Ex. L-6)

The Student’s special education teacher was licensed and certified. (Id 71) It is generally an accepted practice to accept a teacher one grade level above and one grade level below where the licensure is aligned. (Id 71-2)

The Unilateral Placement Supervisor has observed public school classes and has worked in public school as a sub but has not worked in public school administration. (Id 72-3)

As compared to other students in his class, the Student was functioning below grade level in decoding, but was functioning above his ability in the area of writing. (Id 73) His expressive comprehension of understanding what he knew, what he did not know, was a weakness and his learning behaviors as they contribute to the classroom was also a weakness. (Id 74)

The Unilateral Placement Supervisor approximates that religious instruction constitutes five percent of the school week. (Id 74, 85-6) REDACTED instruction only takes half an hour in the morning. (Id 75)

The Unilateral Placement Supervisor described discrepancies in 2019 IESP and 2020 IEP. (Id 78-82; Ex. L-5)

For example, the 2019 IESP describes severe academic deficits and severe behavioral deficits, but only recommends five periods of SETSS. (Id 79) The 2020 IEP only allocated 15 periods per week in a special education classroom which is not sufficient for the Student. (Id) The 2020 IEP did not include a behavior intervention plan. (Id)

The Student meaningful academic and functional progress during the School Year (Ex. L-5-7)

The Unilateral Placement uses the Rethink platform for data collection to monitor the Student’s program, including the behavior intervention plan and treatment plan. (Ex. L-3-4)

Mother The Parent presented the testimony of the Student’s Mother at the hearing. A summary of the relevant testimony from this witness is as follows:

The Mother signed the Tuition Contract on August 26th, 2020. (Id 99) The first day of the Student’s attendance at the Unilateral Placement was September 10th, 2020. (Id 100)

The Mother notified the District that she was placing the Student in the Unilateral Placement within the same week that she signed the Tuition Contract. (Id 100) The notification was sent via fax on September 16, 2020. (Id)

The Mother spoke to the Social Worker by telephone on approximately August 31 regarding the Unilateral Placement. (Id 101-2)

The Mother participated in the Student’s IEP meeting and did not agree with the school recommendation. (May 11 T 103)

The Mother learned about the Unilateral Placement from other parents. (Id 104)

The Unilateral Placement is not in the same building as the Prior Placement. (Id 105)

Religious instruction at the Unilateral Placement consists of music and prayer. (Id)

The Student received religious instruction in the morning from 8:45a-9:15p. (Id 106)

The Mother communicates with the Unilateral Placement weekly regarding the Student’s progress. (Id 107)

The Mother participated by telephone in an IEP meeting in January 2021 and requested a behavior intervention plan which she did not receive. (Id 109-10, 112)

She also requested a public school placement and did not receive a public school placement letter. (Id)

The Mother subsequently received the IEP in February or March and subsequently contacted the Social Worker by telephone twice. (Id 115, 117)

The Mother participated by telephone in the 2019 IESP meeting in July, 2019, which lasted approximately one hour. (Id 121)

She found out in August that the Prior Placement was closing, and had to scramble to find another program. (Id 127)

The Student has not attended public school. (Id 134) The Mother intended to send the Student to a public school. (Id 135)

The Mother chose to send the Student to the Unilateral Placement because they were able to provide the social and behavioral supports that he needed, in the context of a small class size with individualized support, and a curriculum that was customized to his level. (Ex. M-2)

The Student made significant progress at the Unilateral Placement. (Id; May 11 T 137-8)

The Mother is unable to afford the cost of the Unilateral Placement tuition. (Ex. M-2)

Social Worker The District presented the testimony of the Social Worker at the hearing. A summary of the relevant testimony from this witness is as follows:

The Social Worker has a bachelor's of science from Brooklyn College, and a master's in social work from Fordham University, and has been employed by CSE 6 for seven years. (May 11 T 142)

The Social Worker’s responsibilities at CSE 6 include conducting IEP and IESP meetings, conducting classroom observations, and social intakes. (Id 143)

The Social Worker conducted an IESP and IEP meeting for the Student. (Id)

The Social Worker is a ten month employee from September until June, and is not available to speak with parents during August. (Id 143-4) She returns to work the day after Labor Day. (Id 144)

The Social Worker participated in the 2020 IESP meeting on December 16th, 2020, where the teacher presented how the Student was doing throughout the year, the parent presented her concerns, and the recommendations were discussed. (Id 145-6)

As a general practice, the IEP is provided to the parents via email within the next two weeks after the meeting. (Id 147-8)

The Social Worker next had contact with the Mother in the following year, when scheduling the next year's IEP meeting. (Id 148)

When asked on cross examination whether the District is required to provide the parent with an IEP within a year prior to the start of the school, the Social Worker responded that it's on a case-to-case basis. (Id 155-6)

If all of the assessments are current and valid, recommendations would be made based on the teacher's progress reports and parent's concerns. (Id 157)

If there was any outdated testing, then additional testing would be requested to make sure that there's current testing to represent the student's current functioning. (Id 158)

The Social Worker did not participate in the 2019 IEP meeting because it was held in July. (Id 158)

DECISION

For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, primarily because the District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student’s academic and behavioral challenges and indicating that the Student requires a full time special education classroom.

For example, the 2019 and 2020 District Evaluations reveals the Student’s deficits in cognitive, behavioral and academic functioning. In addition, the Unilateral Placement Supervisor testified that the 2019 IESP and 2020 IEP were not appropriate for the Student because they did not recommend a full time special education program and did not include a behavior intervention plan.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The evidence indicates that the Unilateral Placement offers a special education program. However, there are discrepancies in the evidence regarding the details of the Student’s special education program at the Unilateral Placement.

  • • The Unilateral Placement Supervisor’s testimony regarding class size and student-teacher ratio notwithstanding, these figures are not explicitly stated in any of the documents prepared by the Unilateral Placement. The amount of BCBA supervision and counseling services that the Student receives at the Unilateral Placement are also not stated;
  • • The Student’s report card is not dated, and the four columns indicating the Student’s performance levels are not labeled chronologically. In addition, the attendance section is blank;
  • • The Unilateral Placement Supervisor testified regarding integration of special and general education students at the Unilateral Placement during the school day, which may not be consistent with a full time special education program;

Regarding religious instruction at the Unilateral Placement, I find that the Parent’s contention that only five percent of the tuition is attributable to religious instruction is not sufficiently supported by the evidence. For example, the Unilateral Placement Supervisor’s affirmation states that the periods of instruction which were religious in nature are indicated on the Student’s schedule as “REDACTED”. (Id L-8) The Curriculum Schedule includes “REDACTED” Monday through Thursday, but not Friday (Ex. F) By comparison, the Program Description states that “our students pray every day” and that religious instruction is incorporated into the music program. (Ex. D-5) In addition, the Unilateral Placement Supervisor testified that the five percent threshold was an approximation.

In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met its burden of proof regarding the appropriateness of the Unilateral Placement. However, due to discrepancies relating to the description of the Student’s program at the Unilateral Placement, I find that direct payment for the full amount of the tuition is not warranted in this case.

The third prong of the Burlington/Carter analysis considers the equities of the case.

On the one hand, the Mother participated in the 2019 IESP and 2020 IEP meetings and sent correspondence to the District stating her concerns regarding the Student’s educational program. On the other hand, there are certain statements in the Mother’s testimony that are either inconsistent or not supported by the evidence.

For example, the Mother testified that she requested a behavior intervention plan from the CSE for the Student, and that she disagreed with the school recommendations. Although the 2019 IESP and 2020 IEP describe the Mother’s concerns, there is no indication in these documents that the Mother requested a behavior intervention plan, or that the Mother disagreed with the CSE’s recommendations. In addition, the Mother testified that she intended to send the Student to a public school, even though the Student is in the third grade and has not previously attended a public school.

The Mother also testified that she notified the Social Worker by telephone in August 2020 that she was placing the Student at the Unilateral Placement. This is inconsistent with the Social Worker’s testimony that she does not work in August and is not available to speak to parents at that time. The Mother also testified that the Parents are unable to afford the tuition, yet the Parents presented into evidence the New York State Benefit Identification card of the Student instead of the Parents. The Unilateral Placement Student Contract and tuition affirmation states that the tuition amount is 10,000 per month, or $100,000 for the school year of September 10, 2020 – June 14, 2021, without adjustment for the months of September and June.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, but that discrepancies relating to the Student’s educational program at the Unilateral Placement and to the equities of the case do not support an award of direct payment for the full amount of the tuition.

ORDER

Based upon the foregoing, it is hereby:

  • • ORDERED THAT, the Student was not provided a FAPE for the School Year; and
  • • ORDERED THAT, the District shall pay the Unilateral Placement for Seventy Five Percent (75%) of the Student’s tuition for the School Year;

SO ORDERED

DATED: September 29, 2022

/s/ Sebastian A. Weiss

Sebastian A. Weiss

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

PARENT EVIDENCE:

Ex.

Document

Date(s)

Pages

A Request for Due Process Proceeding and Notice of Appearance 01/27/2021 5

B Individualized Education Services Program 2019-2020 SY 07/09/2019 18

C Individualized Education Program to be implemented 01/2021 12/16/2020 18

D Student Contract, Program Description, and Curriculum 08/26/2020 17

E Medicaid Benefit Card 2020-2021 1

F Affirmations regarding Tuition Breakdown and Payments 12/22/2021 2

G Curriculum Schedule 2020-2021 1

H Student Attendance 2020-2021 1

I Assessments, Plans, and Reports Various 43 Functional Behavior Assessment 2020-2021

2-6

Treatment Plan

10/08/2020

7-9

Assessment of Current Functioning

2020-2021

10

Behavior Intervention Plan

2020-2021

11-16

Teacher Progress Report

12/10/2020

17-19

Teacher Progress Report

June 2021

20-22

OT Report

June 2021

23-24

Speech Progress Report

June 2021

25-29

Report Card

2020-2021

30-43

J

Request for IEP and Placement

09/16/2020

2

K

Ten Day Notice from Parent to DOE

01/21/2021

2

L

Affirmation of School Supervisor

03/28/2022

8

M

Affirmation of Parent

03/28/2022

3

DISTRICT EVIDENCE:

Ex.

Document

Date(s)

Pages

A

Certificate Information for New York State Teaching Certificate Holder

3/29/22

1

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.