New York City Department of Education, Impartial Hearing Decision

SED Case Number: 551663 NYC Case Number: 207889

FINDINGS OF FACT AND DECISION

NYC Case Number: 207889

Student’s Name: REDACTED

Date of Birth: REDACTED

School: REDACTED

Request date: 4/16/21

Dates of Hearing: March 28, 2022; July 20, 2022; August 29, 2022; October 19, 2022 and November 23,2022

Actual Record Closed Date: 12/18/22

Date of Decision: 12/18/22

Date of Distribution if Different than Decision Date:

Hearing Officer: Lynn B. Almeleh, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on March 28, 2022 For the Parent:

REDACTED, Esq.

For the School District:

REDACTED, Department of Education Representative

Names and Titles of Persons Who Appeared on Persons in attendance on July 20, 2022 For the Parent:

REDACTED, Esq.

REDACTED, Pre-School Director, REDACTED

For the Department of Education

REDACTED, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on August 29, 2022 For the Parent:

REDACTED Esq.

REDACTED, Parent

For the Department of Education

REDACTED, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on November 23, 2022 For the Parent:

REDACTED, Esq.

For the Department of Education

REDACTED, Esq.

Introduction and Procedural History

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (”DPC”) filed on or about April 16, 2021. Although filed on April 16, 2021, I was not appointed to hear the above-referenced matter, in violation of the Department of Education’s mandate as articulated in the Individuals with Disabilities Education Act, 20 U.R.R. Section 1415 (f)(1) and its implementing regulations, 34 C.F.R. § 300 et seq.in addition to the New York State Education Law, Educ. Law § 4404 et seq. and its implementing regulations, 8 NYCRR § 200.5 et seq.

On September 1, 2021 a pre-hearing conference was held for the purpose of developing a litigation calendar and framing the issues, where possible. It is unclear whether the Department of Education held a resolution meeting. Status conferences were held on October 7, 2021; November 18, 2021; December 20, 2021; January 24, 2022; April 28, 2022 and May 31, 2022. When it became apparent that the parties were unable to arrive at a mutually satisfactory resolution of this matter, hearings were scheduled for March 28, 2022; July 20, 2022; August 29, 2022; October 19, 2022 and November 23, 2022. As a result, the decision date duly extended to December 18, 2022. The is the compliance date, the date of distribution and the date of this Findings of Fact.

Specifically, the Parent asserts that the School District’s educational placement stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A. As a result, thereof, they are seeking tuition reimbursement for the 2020-2021 extended school year in furtherance of a unilateral transfer to the REDACTED (hereinafter referenced as “REDACTED), a non-public school setting.

As a corollary, the Parents have defended the educational program implemented by SCHOOL and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief.

As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. It should further be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and submission of post-hearing documentation. I note that the student is “a pre-school child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

A list of persons in attendance and of evidence is appended hereto.

Background

At the time of these proceedings, STUDENT was a REDACTED-year-old child, classified as a preschooler with a disability. She was attending a program at SCHOOL, pursuant to a unilateral transfer, and receiving all related services as articulated in the March 5, 2020 IEP. The District maintains that the Parent executed a consent to change her placement at the PRIOR SCHOOL from an 8:1:2 paradigm to an integrated 6:1:1 class on March 5, 2020. Consequently, the Department maintains that the PRIOR SCHOOL was an appropriate placement for the child.

Issues

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 5, 2020 reasonably calculated to confer an educational benefit upon the child during the 2020-2021 and school year?

Point II: Was SCHOOL an appropriate educational placement for the child during the 2020-2021 school year?

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Findings of Fact

The Department of Education’s Case The record is very clear in this case. The Department submitted a few perfunctory exhibits including a stale placement letter ostensibly dated July 29, 2019. Exh. D3. The date on this document is defaced and a new date entered into the letter. I find this placement letter utterly unpersuasive regarding the provision of an actual special education seat at the PRIOR SCHOOL (hereinafter “PRIOR SCHOOL”) in a 6:1:1 classroom as recommended within the March 5, 2020 IEP. D2. Even if I found this letter credible, it refers to a placement for a school year not in dispute before me.

Thereafter, the Parent executed a Final Notice of Recommendation Form, prepared the same day as the CSE convene. Exh. D4. This document indicates that the child is recommended for a “6:1:1 class” in an integrated setting. Having said this, the Department of Education presented no witnesses on its direct case, but did present a rebuttal witness, REBUTTAL WITNESS 1, a CPSE Administrator. Ms. REBUTTAL WITTNESS 1 described her duties and responsibilities in her capacity as a CPSE administrator, none of which reflected placement concerns or protocol.

She did, however, testify that she had participated in the CPSE convene STUDENT on March 5, 2020. Exh. D at 2. Ms. REBUTTAL WITNESS 1 noted that the child’s Parent had been seeking a less restrictive environment and an effort was made to accommodate their request. Consequently, the CSE now recommended a 6:1:1 paradigm in an integrated setting as opposed to 8:1:2 in which the child was currently placed. All related services remained in place. This included occupational therapy (1:1; 3x 30); and physical therapy (1:1; 2 x 30). The Parent signed the new recommendation along with the “CAP,”, an authorization to change the nature of STUDENT’s services. Oct. 19, 2022 tr. at 198-204.

Ms. REBUTTAL WITNESS 1 testified briefly as to the child’s educational, physical and emotional needs. She further described the nature of services available and which ones were consistent with meeting these needs. Moreover, everyone present at the March 5, 2020 convene believed STUDENT would benefit from the opportunity to model typically developing peers. As a result, the Committee believed an integrated 6:1:1 classroom would serve the child well by providing her with an opportunity to engage with typically developing peers. Beyond this, Ms. REBUTTAL WITNESS 1 testified briefly about classroom observations, the child’s cognitive capacity, behavior intervention plans and the child’s functional levels.

Most significantly, Ms. REBUTTAL WITNESS 1 testified that she was not involved “at all” in informing the Parent as to the location of a new placement. Ibid. at 212. Rather, she testified that it was ADMINISTRATOR 1’S responsibility to address placement with the Parents, and in any case, Ms. ADMINISTRATOR 1 was employed in a different district. Indeed, even if one agrees that the Parent accepted the new integrated 6:1: 1 placement, as memorialized in the Department’s Final Notice of Recommendation Form, one cannot reasonably assume that this placement was available to the child as of the 2020-2021 school year. S Exh. 4. There was simply no testimony on this issue.

Regardless of whether ADMINISTRATOR or Ms. REBUTTAL WITNESS was responsible, it is clear that the Department presented no placement witness and there is no evidence that an integrated 6:1:1 seat actually existed. In the absence of a placement witness who could confirm the availability of services for this child, one is forced to rely upon “retrospective testimony,” i.e., testimony that certain services not listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement. In the case at bar, the Department has not even presented retrospective testimony. It has wholly ignored the issue. In view of the above and consistent with R.E. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421 (S.D.N.Y. 2014); Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv, I find that the Department of Education has not met its prong one burden consistent with Burlington v. Department of Education of Massachusetts.

The Parent’s Case

Having determined that the Department of Education has not met its prong one burden, pursuant to Burlington, supra, I will now address the issue of whether SCHOOL was an appropriate placement for the child during the 2020-2021 school year. Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

Ms. EDUCATOR 1 testified on behalf of SCHOOL as its Director. Ms. EDUCATOR 1 is licensed in both special and general education from grade birth through high school. She has multiple educational and administrative certifications and is a license behavior analyst in New York. She described the small, intimate nature of SCHOOL, noting that there are only five classrooms in a building which additionally houses a general education school. Students range in age from three to five. SCHOOL is designed to meet the needs of language delayed and behaviorally challenged children. The School follows the general education Common Core curriculum, which is then modified through ABA methodology and a data driven protocol. Data is taken on an hourly basis. July 20, 2022 Tr. at 137.

During the 2020-2021 school year, STUDENT’s classroom was comprised of 8 students, one licensed special education teacher and two assistants at all times. Ms. EDUCATOR 1 testified that she was familiar with STUDENT and described her as a very self-directed child who could not cope with limits. July 20, 2022 Tr. at 113. The witness described STUDENT’s educational profile upon commencing school at SCHOOL.

She noted that the child lacked focus and was generally inattentive. When playing in the classroom, she frequently engaged with toys inappropriately and often broke or “destroyed” the area in which she was playing. STUDENT demonstrated poor social skills, hitting or touching others inappropriately. She functioned in a very “scattered” manner and often provided non-sequitur comments. Ibid. The child was unable to follow directions or participate in group activities. The witness testified that, “relatedness did not exist.” July 20, 2022 Tr. at 114. At times, the child engaged in self-isolative behaviors and refused to verbalize her concerns, notwithstanding her ability to use words functionally. On other occasions, the witness believed the child’s dysfunctional behaviors were dangerous. July 20, 2022 Tr. at 146. Although the child demonstrated many skills and cognitive levels which were within the average range, her management needs precluded her ability to access an education.

Academically, STUDENT did not demonstrate any readiness skills and could not attend to instruction for more than a few seconds. Circle time, focusing on a story, retelling a story coherently, filling in the blanks and activating prior knowledge to add depth to a story were challenging for the student. STUDENT was unable to complete a task or imitate skills demonstrated by her peers was difficult. The child demonstrated poor executive skills and did not organize her desk appropriately. Rather, materials were simply dumped from her knapsack. Ms. EDUCATOR 1 noted that STUDENT exhibited poor retention and recall which frequently resulted in intense frustration and emotional dysregulation. In sum, she opined that STUDENT’s ability to function within a classroom was constrained by her behavior management issues. Specifically, the child required an FBA and a BIP, supports which had not been recommended by the Department of Education. July 20, 2022 Tr. at 119-123; S Exh. 2. Ms. EDUCATOR 1 testified that, given the child’s behavior management issues, her aggression, lack of focus and distracting behaviors, she did not believe an integrated 6:1:1 class was appropriate.

I find, at the outset, that the program offered at SCHOOL correlates well with the student’s functional needs, as identified by credible witnesses. STUDENT is a child with an enormous array of dysfunctional behaviors, accompanied by emotional dysregulation. The child is functionally grouped in a classroom whose students reflect a similar profile. Specific measures are taken to encourage generalization of skills across personnel and environment. Both the Parents and SCHOOL personnel uniformly agreed that the child is making meaningful progress within the SCHOOL paradigm. Its methods and curriculum are based upon empirical research and its personnel are experienced with ABA. The program is data driven, facilitating assessments of the child’s progress and areas of deficit. In this manner, the student’s goals may be individually tailored to meet her needs. All skills are taught with an understanding that no skill is truly meaningful until it can generalize home.

Since the implementation of a BIP, many of the child’s challenging behaviors have become more manageable. STUDENT can now utilize information and store it in long-term memory. STUDENT’s math skills, both abstract and in 1:1 correspondence, have improved as the child is now available for learning. Through constant reinforcement, rotation of materials and repetition across environments, personnel have additionally been able to develop the child’s reading skills to include phonemic awareness and letter identification. programming. SCHOOL has placed an emphasis on developing STUDENT’s attending skills and as a result, she has made progress in many areas. The child requires fewer prompts to respond appropriately and even those prompts have partially faded. Significantly, beyond the provision of ABA, many of the calming and sensory techniques utilized by SCHOOL have been effective for STUDENT Ibid. at 140.

During the 2020-2021, STUDENT continued to receive her mandated related services as articulated in the March 5, 2020 IEP. Given the above, I believe SCHOOL was an appropriate placement for [REDACTED] during the 2020-2021 school year.

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Finally, the evidence indicates that the Parent participated willingly in her daughter’s CSE convenes and communicated at length about her concerns. To their credit, she did so in the absence of hostility and negativism. The Parents authorized assessments and willingly exchanged reports and evaluations from SCHOOL. Beyond this, the Parent contacted many schools recommended by the Department, without success. P Exh. I. By letter dated August 18, 20120 [REDACTED]. provided the District with a 10-day written notice, memorializing their dissatisfaction with the District’s program. P Exh. H. Under these circumstances, I see no factors which would militate against the Parent’s equitable right to recovery.

Conclusions of Law

The Department of Education has not met its burden of providing STUDENT with a FAPE, consistent with Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. In contrast, the Parent has established both prongs two and three, referent to the cases cited, supra.

Order

Based upon the above Findings of Fact and conclusions of Law, it is hereby ordered:

Within forty-five (45) days of the date of this Order, and upon the Parent’s submission of a duly executed Affidavit of Attendance, the Department of Education shall make direct payment of all tuition expenses to SCHOOL incurred by STUDENT during the 2020-2021 school year. This amount shall represent the Department of Education’s total liability pursuant to the Parents’ Due Process Complaint dated April 15, 2021.

SO ORDERED

Dated: December 18, 2022

Lynn B. Almeleh, Esq.

_____________________________________

New York State Certified 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.