New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 206523

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

NYC ID# 244-873-568

District: REDACTED

Hearing Requested by: REDACTED

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

Date of Hearing: 8/25/22

Record Close: 9/14/22

Hearing Officer: Tiffany Hamilton

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2022

For the Student:

REDACTED, Attorney

REDACTED, Attorney

REDACTED, Parent

REDACTED, Educational Director, REDACTED

For the Department of Education:

REDACTED, District Representative

I. Introduction and Procedural History

This matter comes before the undersigned Hearing Officer at Parent’s request, via a due process complaint filed on February 4, 2021. Parent charged that the District failed to provide Student with a free appropriate public education (FAPE) under federal and state law and requested the instant hearing seeking funding for Student’s unilateral placement two private schools: REDACTED, for the summer of 2020, and at REDACTED for the 10-month 2020-2021 school year.

The undersigned was appointed as a Hearing Officer on February 4, 2021. A pre-hearing conference and subsequent status conferences were held, and extensions of the compliance date were entered in the record pursuant to regulations. The parties submitted closing briefs subsequent to the hearing.

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 District failed to provide Student with a FAPE, and if so, whether tuition reimbursement/direct funding is an appropriate remedy.

Parent contends that the District failed to provide Student with a FAPE, in that the May 2020 IEP was insufficient and inappropriate to meet Student’s needs. Parent asserts that the unilateral private placements at REDACTED and REDACTED were appropriate and reasonably calculated to meet Student’s unique needs. Parent is seeking reimbursement of tuition for Student’s unilateral placement at REDACTED for the summer of 2020 and REDACTED for the 2020-2021 school year.

IV. EVIDENCE

The District did not submit any disclosure documents. The Parent submitted Exhibits A-W, all of which were entered into the record.

V. FINDINGS OF FACT

• • Student is a REDACTED, classified by the CSE as having a speech and language impairment. He was REDACTED years old at the start of the 2020-2021 school year. He presents with global delays in the areas of academics, speech/language, social emotional skills, and receptive and expressive language. He also demonstrates behavioral and attentional deficits that prevent him from progressing in a classroom setting, and exhibits noncompliant behaviors such as throwing tantrums and whining (P. Ex. A – 1-2).
• • Student first began receiving services in preschool, and his first IEP, developed for the 2019-2020 school year, recommended a 12:1+1 program for four subjects, with placement at P.S. REDACTED Parent disagreed with the recommendations and filed a due process complaint. This Hearing Officer found that the District failed to offer Student a FAPE and ordered the district to pay Student’s tuition at REDACTED for the 2019-2020 school year (Parent Closing Brief).
• • On May 14, 2020, an IEP meeting was held by the CSE to develop an IEP for the 2020-2021 school year. The CSE recommended that Student attend a Special Class 12:1+1 program in a NYC DOE Non-Specialized School (“REDACTED School”) for four subjects, (Math, ELA, Social Studies, and Sciences), with related services of counseling, occupational therapy, and speech and language therapy. Parent contends that the May 2020 IEP is procedurally and substantively flawed in that: it failed to recommend a 12-month program despite substantial and reliable information that a 10-month program would lead to regression; it failed to recommend Applied Behavioral Analysis (“ABA”) despite having information that same was required; did not recommend the appropriate supports, services, strategies and intervention to allow Student to make progress (P. Ex. A-2, 3).
• • On or about August 14, 2020, three months after the May 2020 IEP meeting, Parent received a document entitled “prior written notice,” which Parent alleges failed to provide sufficient written notice of the CSE’s recommendations. On the same date, the CSE recommended a placement at REDACTED (P. Ex. A-3).
• • Parents sought to arrange an on-site visit to learn about the school but were unable to reach anyone at REDACTED, despite numerous attempts. They also tried learning more about the placement via telephone and email but did not receive a response to their inquiries. They were not able to arrange a tour prior to November 2020 (P. Ex. A-3).
• • In letters dated June 18, 2020, August 19, 2020, and November 5, 2020, Parents, through their attorney, contacted the District to address concerns about the May 2020 IEP and to request additional information about the placement. The CSE failed to substantively respond to the concerns articulated or provide more information about the placement. (P. Ex. A-4).
• • Due to the inappropriate IEP and their inability to obtain information about the placement, Parents continued to enroll Student at REDACTED for the summer of 2020, and then placed him at the REDACTED School for the 2020-2021 10-month school year (P. Ex. A-4).
• • REDACTED, Educational Director at REDACTED, testified via affidavit on behalf of Parent. She explained that the school uses a holistic approach to meet its students’ needs, and that 1:1 instruction is provided, utilizing ABA principles. All staff members receive ABA training by the two board certified behavior analysts on site (P. Ex. T-2).
• • REDACTED testified that in the summer of 2020, Student attended the school in person, and was in a class of six students. He exhibited social anxiety and academic aversion, with frequent behavioral outbursts such as tantrums and whining. His behavior interfered with his classmates’ learning as well as his own. REDACTED also observed that he was delayed in receptive and expressive language, as well as articulation. He lacked skills in basic activities of daily life and struggled academically (P. Ex. T-2).
• • REDACTED noted that ABA is effective for teaching Student because it allows information to be presented to him in small segments at his own rhythm (P. Ex. T-2).
• • REDACTED concluded that the May 2020 IEP was inappropriate for Student’s needs. She was particularly concerned about the large group setting, the fact that ABA was not included, and that a 10-month program was recommended instead of a 12-month program (P. Ex. T-4).
• • REDACTED, Educational Director at REDACTED, testified via affidavit that the school is a small educational program mostly with 1:1 instructors for each student. ABA techniques are utilized throughout the day and across academic and social programs. At REDACTED, Student is one of six children in his class, with a lead instructor and six 1:1 instructors (P. Ex. U-2).
• • Ms. REDACTED noted that Student has autistic tendencies, cognitive disabilities, and delays in receptive and expressive language, articulation, and intelligibility. She explained that he requires a program that implements ABA principles with 1:1 instruction, as he is easily distracted and engages in maladaptive behaviors to gain attention from others. She described his academic skills as “very inconsistent,” and noted that he had significant social and behavioral needs as well as struggles with activities of daily living (P. Ex. U-3).
• • REDACTED found the May 2020 IEP to be inappropriate for Student, explaining that he would be overwhelmed in a 12:1+1 program. She noted that it had no behavioral intervention plan, no promotional criteria, no physical therapy, and failed to take into account many aspects of his academic and social profile (P. Ex. U-5).
• • REDACTED concluded that REDACTED was an appropriate program for Student for the 2020-2021 school year, as evidenced by his academic behavioral, and social-emotion progress (P. Ex. U-6).
• • REDACTED, Student’s mother, testified via affidavit that that the District did not respond to her requests to visit PS 226, nor did it her concerns about the IEP’s recommendations. She also noted that Student has benefitted significantly from both the summer program at REDACTED and the 10-month program at REDACTED, and has shown improvements in his social/emotional, behavioral, and academic needs (P. Ex. V-3).
• • REDACTED stated in her affidavit that to date, she has made one payment to REDACTED in the amount of $500.00. She stated that her family is not in a position to pay the entire cost of both tuitions (P. Ex. V-3).

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, I find that the DOE has not meet its the burden of showing that it provided a FAPE to Student. The recommended program does not sufficiently address Student’s needs and was not reasonably calculated to enable Student to make meaningful progress. The recommended class size is too large for Student’s needs; the evidence shows that he requires much more individualized care, such as that provided at REDACTED in the summer of 2020 and REDACTED for the 2020-2021 school year, to address his substantial and well-documented academic and physical challenges.

2. Parent is entitled to tuition reimbursement/direct funding for the 2020-2021 12-month 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 failed to meet its burden of proving that it offered the Student a FAPE for the 12-month 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 REDACTED and REDACTED 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 the program at REDACTED for the 2020 summer and REDACTED for the 2020-2021 school year. The record is replete with evidence that Student requires a 12 -year program. (P. Exs. B-1; Ex. C-1; Ex. D-1; Ex L-4). With respect to the summer program at REDACTED, I credit the testimony of REDACTED concerning the overall effectiveness of the academic program and related services at the school. Of particular note is the fact that the staff at REDACTED receives ABA training, which Parent has demonstrated to be an important mechanism for Student, and which is not offered at the placement offered by the District. I also acknowledge REDACTED’s professional credentials and take note of her assertion that, given Student’s need for constant individualized attention, the 1:1 setting provided at REDACTED, along with its support mechanisms and efforts to place Student with similarly situated peers, is reasonably calculated to provide Student with educational benefit.

With respect to the 10-month program at REDACTED, I find that the testimony presented demonstrates that the program was appropriate. Ms. REDACTED provided testimony via affidavit regarding REDACTED’s small class size, 1:1 instruction, behavioral intervention plans, and multi-sensory and manipulative-based curriculum. I credit her testimony, as well as that of Parent, regarding the progress that Student was able to make at REDACTED with this program.

For the reasons noted above, I find Parent has met the burden of demonstrating that the summer program at REDACTED and the 10-month program at REDACTED were appropriate programs for Student. 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. Parent participated in the May 2020 IEP meeting, raised concerns in a timely manner, and attempted to visit REDACTED when she learned of the placement. The DOE failed to respond to Parent’s concerns and failed to accommodate Parent’s request to visit the recommended school. I find that Parent has prevailed in proving that the unilateral placements for the 12-months 2020-2021 school year was appropriate, and I find that the equities in this case favor Parent.

ORDER

• • The DOE shall fund the cost of Student’s 2020 summer program at REDACTED, by issuing direct payment to the school in the amount of $19,500.00 within thirty (30) days of the submission of invoice or other proof of program cost.
• • The DOE shall fund the cost of Student’s 2020-2021 school year program at REDACTED, by issuing direct payment to the school in the amount of $101,900.00, and reimbursement to the parent in the amount of $500.00, within thirty (30) days of the submission of invoice or other proof of program cost.

IT IS SO ORDERED.

Dated: September 27, 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.

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EXHIBITS

PARENT’S EXHIBITS

• • REDACTED (Case # 206523)

Exhibit Date Title Number of Pages

• • A 02/04/2021 Impartial Hearing Request 4
• • B 6/18/2020 Ten Day Notice Letter and Confirmation 4 C 08/19/2020 Follow up 10 Day Notice Letter 4
• • and Confirmation D 11/05/2020 Follow up Ten Day Notice Letter 4 and Confirmation E 10/19/2020 Parent Email to P.S. 371 1 F Undated REDACTED Summer Progress Report 17 G Undated REDACTED Summer Schedule 1 H Undated REDACTED Summer Attendance 1 I 02/01/2022 REDACTED Affidavit of Cost 1 J 06/25/2020 REDACTED Contract 3 K May 2021 REDACTED OT Annual Assessment 5 L Various REDACTED Speech Therapy Annual Report 4 M 01/05/2021 REDACTED PT Mid-Year Progress 2 N 01/06/2021 REDACTED OT Mid-Year Report 3 O June 2021 REDACTED Educational Progress Report 5 P Undated REDACTED Behavior Intervention Plan 4 Q 09/01/2022 REDACTED Affidavit of Cost 1 R 09/02/2020 REDACTED Enrollment Contract 6 S 2020-2021 REDACTED Transportation Contract 1 T 06/13/2022 Testimonial Affidavit of REDACTED 4 U 06/02/2022 Testimonial Affidavit of REDACTED 6 V Undated Affidavit of REDACTED 3 W 2020-2021 U.S. Individual Income Tax Return 3