New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551421 - NYC: 207659

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED] ("Student")

Date of Birth: [REDACTED]

Home District: REDACTED

Hearing Requested by: [REDACTED] ("Parent(s)")

Request Date/Date Complaint Filed: 4/5/21

Date(s) of Hearing: 6/6/23

Actual Record Closed Date: 7/18/23

Date of Decision: 8/16/23

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

("Parent Representative") [REDACTED] ("Mother" or "Parent")

[REDACTED]

("Unilateral Placement Representative")

For the Department of Education:

[REDACTED]

("District Representative")

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on the Parent's Due Process Complaint filed on April 5, 2020 ("DPC"). (Ex. A) 1 The DPC concerns the Student's special education program for the 2022-21 school year ("School Year"). The IHO was appointed to this case on December 9, 2021.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES AND ARGUMENTS

Parent Case:

The DPC alleges that the District denied the Student a Free Appropriate Public Education ("FAPE") for the School Year by failing to provide an appropriate Individualized Education Program ("IEP") and to recommend an appropriate placement for the Student for the School Year. The DPC seeks funding for tuition and services at [REDACTED] ("Unilateral Placement") for the School Year. Specifically, the Parent presented the following arguments in the DPC and at the hearing: (Ex. A, T 121-26, T 184-85) • For the School Year the Committee on Special Education ("CSE") recommended a monolingual 15:1 special class setting in a community school which is inappropriate for the Student. • The Student requires bilingual Yiddish instruction, a twelve month program, and 1:^[1] support with an Applied Behavior Analysis ("ABA") approach. • The Unilateral Placement is an appropriate placement for the Student for the School Year. • The Parent did not receive a placement offer from the District for the School Year. • The schedule at the Unilateral Placement is 25 percent religious, 75 percent secular. • The District failed to meet their burden of proof for purposes of FAPE.

The Parent presented 10 documents into evidence and the testimony of two witnesses – the Unilateral Placement Representative and the Student's Mother.

District Case:

The District did not present an opening statement at the hearing or any evidence or witnesses. The District Representative did not disagree with the Parent's description of the 2019 IEP. (T 124) The District presented a brief closing statement during which it argued the following: (T 179-81) • The Parent did not meet its burden of proof that the Unilateral Placement is appropriate. • The Parent did not establish that the Student made progress at the Unilateral Placement • The Unilateral Placement Representative's testimony pointed only to the reading and math evaluations, but it's not clear when those were done. • There was not any substantial evidence about the progress that was made. There was some indication about reading and math but no progress reports were produced. • Any funding that is awarded for the Unilateral Placement should include a 25% reduction in the base tuition for religious instruction. This reduction does not apply to amounts charged for related services which do not include religious instruction.

FINDINGS OF FACT

The Student is a bilingual Yiddish student classified by the CSE as a student with a learning disability. The Student was [REDACTED] years old during the School Year. The Student has been diagnosed with autism spectrum disorder and has delays in the areas of academics, language, communication, and social skills. (Ex. A, H, I, June T) In addition, he struggles with anxiety and emotional regulation which affects his classroom performance. (June T) Specifically, the Student has academic delays in reading, writing and math, and struggles with expressive and receptive language, executive functioning, and attention/concentration. (Ex. I)

The Student has had an IEP since elementary school and previously attended small self contained bilingual special education programs. (Ex. H) The Student began attending the Unilateral Placement for the 2018-19 school year. (Id)

On November 21, 2019, an IEP meeting ("IEP Meeting") was conducted for the Student and an IEP was developed for the 2020-21 school year ("2020-21 IEP"). The 2020-21 IEP was not presented into evidence. The Student's Mother testified that she attended the IEP Meeting. (Ex. H)

The 2020-21 IEP recommended a ten month program in a community school in a 15:1 class with ESL instruction.

Following the IEP Meeting, the District offered placement at [REDACTED] for the remainder of the 2019-20 school year. (Ex. H) The Parent testified that they did not receive a subsequent placement offer from the District prior to the start of the 2020-21 school year. (Ex. H)

On June 22, 2020, the Parent issued a Ten Day Notice to the District indicating that the Student will attend the Unilateral Placement for the School Year. (Ex. B) The Parent testified that they did not receive a response to the Ten Day Notice from the District. (Ex. H)

On June 30, 2020, the Parents entered into an Enrollment Agreement with the Unilateral Placement for the School Year. (Ex. C) The Enrollment Agreement states that Base Tuition is $90,000. In addition, there are charges for related services at a cost of $108 per week for a total of $10,368 for 48 weeks. (C-1) The related services are Speech Language, 2x30 and Counseling, 2x30 ("Related Services"). (Id) The Parents have not paid any of the amounts due to the Unilateral Placement pursuant to the Enrollment Agreement. (Ex. D)

The Unilateral Placement Program Description states that it is a high school for children ages 13 and older with academic, social, and behavioral challenges. (Ex. G-1) The Unilateral Placement utilizes a comprehensive behavioral program based on the principles of ABA, which is a research-supported method for helping students develop and maintain pro-social behaviors and decrease problematic behaviors. (Id)

At the Unilateral Placement, the Student was placed in a 10:1+1 class with 10 students, one main teacher and an assistant teacher pursuing their degree in mental health counseling. (Ex. I) The other students in the class had similar needs as the Student. (Id) The Student required a significant amount of individualized instruction and emotional support. (Id)

Witness Testimony: Mother

The Student's mother testified regarding the IEP Meeting, the Student's special education needs and educational history. (Ex. H, June 6 T) I credit the Mother's testimony in this regard. Unilateral Placement Representative

The Unilateral Placement Representative testified primarily regarding the appropriateness of the program at the Unilateral Placement, the Student's special education needs, and the progress the Student has made at the Unilateral Placement. (Ex. I, June 6 T) I credit the Unilateral Placement Representative's testimony in this regard.

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 Residential 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 Residential 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 Residential 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."

ANALYSIS AND DECISION

The first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether it provided the Student a FAPE for the School Year. Based on a preponderance of the evidence standard, I find that the District did not provide a FAPE to the Student for the School Year because the District did not establish that the 2020-21 IEP was appropriate to meet the Student's unique special education needs. At the hearing, the District did not seek to defend the 2020-21 IEP and not dispute the Parent's claim that it did not provide the Student a school placement for the School Year.

By comparison, the Parent presented evidence and testimony indicating that the Student requires a twelve month program in a specialized school with a relatively smaller class size and individualized instruction.

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.

Based on a preponderance of the evidence standard, I find that the Parent has presented sufficient evidence and witness testimony for purposes of establishing that the Student's educational program at the Unilateral Placement for the School Year was appropriate insofar as it offered an educational program designed to meet the Student's unique special education needs, and was reasonably calculated to provide an educational benefit. For example, the Unilateral Placement is a specialized school which offered a smaller class size relative to the 15:1 class recommended by the 2020-21 IEP consisting of a peer group with similar needs, as well as an extended school year and a bilingual program.

The claims set forth in the District's brief closing statement regarding the appropriateness of the Unilateral Placement are not supported by evidence or witness testimony.

The Unilateral Placement Representative and Parent testified regarding the Student's academic progress at the Unilateral Placement in the areas of reading and writing, as well as improvement in his behavior.

The District's cross examination of the Unilateral Placement Representative and Parent is not sufficient to establish that the Unilateral Placement is not appropriate for the Student.

With respect to the third prong of the Burlington/Carter analysis, which considers the equities of the case, the Parent testified that she participated in the IEP Meeting and expressed their disagreement with the proposed educational program. I find that the Mother's decision to unilaterally enroll the Student at the Unilateral Placement was not unreasonable based on the Student's special education needs and prior educational history, including at the Unilateral Placement, and based upon the District's failure to provide a placement offer for the School Year.

In conclusion, based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case favor the Parent.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby: 1) ORDERED THAT, the Student was not provided a FAPE for the School Year; and 2) ORDERED THAT, the District shall pay for 75% of the Base Tuition pursuant to the Enrollment Agreement, and for 100% of the charges for Related Services provided pursuant to the Enrollment Agreement. The Unilateral Placement shall provide an itemization of Related Services provided pursuant to the Enrollment Contract.

SO ORDERED.

DATED: August 16, 2023

/s/ Sebastian A. Weiss, Esq.

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

PARENT DATE DESCRIPTION NUMBER OF

EXHIBIT PAGES

A. Due Process Complaint 4/31/2021 3 pages

B. Parent Letter 6/22/2020 3 pages

C. Contract 20-21 4 pages

D. Payment Affidavit 7/21/2022 1 page

E. Schedule 20-21 1 page

F. Remote Learning Plan 20-21 3 pages

G. Program Description N/A 3 pages

H. Parent Testimony Affidavit 5/24/2023 3 pages

I. School Testimony Affidavit 5/24/2023 7 pages

J. Federal Tax Return 2021 3 pages

DOE EXHIBITS

None.

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.