New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551985 - NYC: 208193

FINDINGS OF FACT AND DECISION

Case Number:

208193

NYS Identifier Number:

551985

Student’s Name:

STUDENT

Date of Birth:

REDACTED

Region:

REDACTED

Hearing Requested By:

Parents

Date(s) of Hearing:

2/28/22; 4/27/22

Actual Record Close Date:

July 14, 2022

Hearing Officer:

Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding STUDENT The hearing was convened at the written requests of the Parents by letter dated May 4, 2021. (Exhibit A) A hearing was held on February 28, 2022, and April 27, 2022, by video/teleconference, with the presence of a court reporter to create a written transcript. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2019-2020 school year and REDACTED years old at the beginning of the 2020-2021 school year. She has been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a Learning Disability. STUDENT has had the diagnoses of Generalized Anxiety Disorder, Social Anxiety Disorder, and Specific Learning Disorder with impairment in mathematics, Other Specified Neurodevelopmental Disorder with Nonverbal Learning Deficits, Cannabis Use Disorder, Alcohol Use Disorder, and Unspecified Tobacco-Related Disorder (Vaping), Persistent Depression Disorder, Parent Child Relational Conflict, Cluster B Personality Features, Personal History of Trauma. (Exhibits C, D, G)

STUDENT was unilaterally placed by the Parents at SCHOOL (“SCHOOL”) from April 2020 through June 2020 of the 2019-2020 school year, and from July 2020 through January 2021 of the 2020-2021 school year. She was unilaterally placed at SCHOOL (“SCHOOL”) from January 2021 through June 2021 of the 2020-2021 school year. The Parents are seeking funding/reimbursement for the unilateral placements based on the DOE’s failure to offer a procedurally valid and substantively appropriate Individualized Education Program (“IEP”) and placement recommendation for STUDENT for the 2019-2020 and 2020-2021 school years.

The Parents sent letters to the CSE throughout the period at issue, on December 18, 2019, May 7, 2020, June 17, 2020, and January 5, 2021. In the letters, the Parents had requested IEP meetings, appropriate program recommendations, and appropriate placements. The letters also served to notify the CSE of the Parents’ intention to privately place STUDENT in the absence of an appropriate program and placement, and to seek funding for any private placements from the DOE. (Exhibits B, E, Q, O) By letter dated May 4, 2021, the Parents requested an impartial hearing seeking tuition reimbursement for the private placements, based on the DOE’s failure to provide a Free Appropriate Public Education (“FAPE”) to STUDENT for the 2019-2020 and 2020-2021 school years. (Exhibit A)

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE did not offer any documents or witness testimony. At the outset of the hearing, the DOE presented an opening statement that, “The Department of Education will not present evidence to be placed on the record in this matter, nor do we have witnesses to provide testimony in this case. However, we do reserve the right to cross-examine all witnesses proposed by the Parents in this matter.” (T. 14) While the DOE did not concede a failure to offer a FAPE to STUDENT for the 2019-2020 and 2020-2021 school years, it confirmed that it was not defending any actions taken toward providing a FAPE for those school years. (T. 15) The DOE chose to cross-examine one of the two witnesses for the Parents who testified on the first day of hearing. The DOE failed to appear for the second day of hearing. Therefore, there was no cross-examination of the Parents’ third and fourth witnesses, who testified on that date, and there was no closing argument presented by the DOE.

THE PARENTS’ CASE The Parents presented the testimony of four witnesses: REDACTED, Academic Director at SCHOOL; Dr. REDACTED, Primary Therapist at SCHOOL; Dr. REDACTED, Clinical Director at SCHOOL; and PARENT, STUDENT’s mother.

REDACTED is the Academic Director at SCHOOL. She provided her direct testimony through a sworn affidavit and confirmed her affidavit at the hearing. She was available at the hearing for cross-examination, but the DOE did not participate in the hearing on the date on which she appeared. (T. 42-43; Exhibit AF) REDACTED explained that SCHOOL is the academic component of SCHOOL. She described SCHOOL as a “private residential treatment center for adolescent giSCHOOL.” It is located in REDACTED. In her position, REDACTED supervisors and coordinates academic support and serves on the admissions team. She is also a team leader and meets weekly with the therapeutic staff to assess student progress. REDACTED stated that the average class size is 8 students with one teacher and one mentor staff; classes are capped at 12 students. The mentor staff is considered part of the residential staff and assists with behavior management in the classroom. REDACTED described a school day at SCHOOL, which begins with a physical education class, followed by three block periods for core subjects and elective classes. Students with an IEP also attend a Studies Strategies Class, which focuses on executive functioning skills and is run by the Special Education Director. The day ends with an advisory period to work on organizational skills and homework.

REDACTED participated in STUDENT’s admissions process. She described STUDENT’s struggles and how they affect her academic performance. She explained that, when STUDENT first came to SCHOOL, “her greatest areas of need were her lack of executive functioning skills, social/ emotional skills, and attention/concentration.” She described how all of these areas were addressed in the program and stated that, by the end of her time at SCHOOL, she had made great improvements. To address STUDENT’s academic needs, she was provided with “significant 1:1 support and instruction” and improved academically. STUDENT’s clinical and academic teams collaborated often. REDACTED was STUDENT’s team leader for the 2019-2020 and 2020-2021 school years and would meet weekly with her treatment team, including, among others, the school psychiatrist, residential leads, and counselor. They discussed her struggles and successes, as well as what she was working on in her therapy sessions so that the skills could be generalized into the classroom setting.

REDACTED expressed her professional opinion that SCHOOL was an appropriate placement for STUDENT from April 30, 2020, to January 7, 2021, since the program was “equipped to address her social, emotional, and academic needs through its supports and small group instruction.”

Dr. REDACTED is a Primary Therapist at SCHOOL. He provided his direct testimony through a sworn affidavit and confirmed his affidavit at the hearing. He was available at the hearing for cross-examination, but the DOE did not participate in the hearing on the date on which she appeared. (T. 44-45; Exhibit AG) Dr. REDACTED explained that he provides individual, family, and group therapy sessions for students under his care and participates in multidisciplinary treatment team collaboration in support of the students and their families. He described STUDENT when she first arrived at SCHOOL. He stated that she “presented with significant anxiety, depression, and unregulated mood fluctuations.” He added that she has “a history of substance abuse,” and “struggled to maintain a positive relationship with her parents.” Her needs “collectively impacted her ability to make academic progress.” In addition to her academic schedule from Monday through Thursday, her off-campus activities on Friday, and her weekend activities, STUDENT was provided with “individual therapy once a week, family therapy once a week, and group therapy intermittently. These therapy sessions were each 60 to 90 minutes long. In addition, [STUDENT] and her parents participated in intensive family seminars on a quarterly basis.”

Dr. REDACTED explained that, for STUDENT, “the goal was for her to make sufficient progress to be discharged from the program, reconnected with her family, and continue to thrive at home. [STUDENT] and her family were committed to this process and supported her work as an individual and as a family. STUDENT’s parents were open to and actively engaged in the work needed to support her individual and their shared progress. This included practice of skills important to their developing a renewed parenting experience. STUDENT responded increasingly well to these efforts and improving parent-child interactions over time.” The program addressed STUDENT’s needs and “allowed her to make excellent progress.”

Dr. REDACTED is the Clinical Director at SCHOOL. She provided her direct testimony through a sworn affidavit, appeared at the hearing to confirm her affidavit, and was cross-examined.. (T. 22-29; Exhibit Z) She described SCHOOL as a “private therapeutic college-prep school for students with complex needs who have not been able to make meaningful progress in more traditional school settings.” Dr. REDACTED described SCHOOL as providing "a personalized education, intensive advising program, therapeutic support, and collaboration with families and treatment teams.” She described the school as having “approximately 70-80 students enrolled between

12-18 years of age. Approximately 90-95% of students at SCHOOL have IEPs with classifications of Emotionally Disturbed and Other Health Impaired.” The student to staff ratio is 4:1, with classes of 5 to 10 students, on average; there is a cap of 12 students. The staff includes teachers, who are also trained advisors, as well as “five full time clinicians- four licensed doctoral level psychologists and a school psychology intern (doctoral student).” In addition to the school counseling services, therapy outside of school is mandatory for all students and there is collaboration between all providers, faculty, staff, and parents.

Dr. REDACTED was involved in the admissions and intake process for STUDENT for the second half of the 2020-2021 school year and STUDENT began attending the school on January 20, 2021. Dr. REDACTED explained that from a review of the documents regarding STUDENT, she “had a history of anxiety, mood dysregulation, executive functioning weaknesses, and learning disabilities. This is a common student profile at REDACTED. Her evaluators recommended an academic placement that would be able to address her therapeutic needs in a supportive environment.” Dr. REDACTED described how SCHOOL addressed STUDENT’s needs through small classes, with peers who presented with similar cognitive and social-motioning functioning. STUDENT had designated study periods, used a Chromebook to assist with note-taking and organization, worked with a a learning specialist, and utilized the after-school study center. She had an advisor with whom she had a morning check-in, a mid-morning meeting, and an end of the day check-out, in addition to a weekly individual meeting and facilitated group discussions.

Dr. REDACTED testified that there was improvement in STUDENT’s academic performance as well as socially and emotionally. Her grades were high, she was engaged, showed a strong work ethic, and participated well in her classes. She participated in all aspects of advising, effectively used clinical supports, developed meaningful connections with adults and peers, and met her personal goals. Dr. REDACTED’s professional opinion is that SCHOOL was an appropriate placement for STUDENT for the 2020-2021 school year.

PARENT is STUDENT’s mother. She provided her direct testimony through a sworn affidavit and confirmed her affidavit at the hearing. She was available at the hearing for cross-examination.

The DOE did not cross-examine her. (T. 30-31; Exhibit Y) PARENT described STUDENT’s educational history and provided a background of her academic, social and emotional difficulties. During the 2016-2017 school year, in the 7th grade, STUDENT was diagnosed with an eating disorder which caused her to miss half of the school year. In December 2018, during the 9th grade, the Parents obtained a neuropsychological evaluation for STUDENT and the report, completed in February 2019, was forwarded to the CSE. (Exhibit C) In May 2019, the CSE held a meeting, did not explain the options available to STUDENT in a public school, and, as a current private school student, offered her five periods of Special Education Teacher Support Services a week. STUDENT was engaging in inappropriate behavior at the time, which included drinking and vaping, and her grades went down. Her behavior in class was a problem and she was REDACTED. She also failed two classes. By the start of the 2019-2020 school year, STUDENT was REDACTED. The Parents placed STUDENT at a REDACTED.

On December 18, 2019, the Parents wrote to the CSE requesting an IEP and a residential placement. The Parents indicated that, if an appropriate placement were not offered, STUDENT would be placed at the REDACTED School and a hearing would be requested seeking tuition reimbursement. The CSE held a meeting on January 30, 2020. By that time, STUDENT had been discharged from REDACTED and began attending the REDACTED School. Prior to the CSE meeting, the Parents provided the CSE with numerous reports and other documents. They included the discharge plan from REDACTED, which recommended a therapeutic boarding school for STUDENT The CSE told the Parents that STUDENT should see a psychiatrist who can write up her diagnosis so her classification could be changed to Emotionally Disturbed. The Parents received an IEP from the CSE at the end of February. STUDENT had been suspended from the REDACTED School on February 21, 2020, and the Parents returned her to REDACTED on March 2, 2020, where she remained until April 29, 2020. The Parents placed STUDENT at SCHOOL on April 30, 2020, as advised by the team at REDACTED.

On May 7, 2020, the Parents forwarded to the CSE a psychological evaluation conducted on March 31, 2020, and a letter from the REDACTED psychiatrist overseeing STUDENT during her second stay. (Exhibits E, F, G) The Parents informed the CSE that STUDENT had switched schools from the REDACTED School to SCHOOL and that the Parents would be seeking tuition reimbursement from the DOE. The Parents also asked that the IEP recommendation be changed to a residential program. PARENT did not receive a response from the CSE.

PARENT explained that STUDENT continued her placement at SCHOOL on a twelve-month basis. The Parents notified the CSE, through counsel, by letter dated June 17, 2020, that STUDENT would continue there for the 2020-2021 school year and the Parents would be seeking tuition reimbursement. (Exhibit O) On August 24, 2020, the Parents received an offer of a public-school placement for STUDENT The Parents’ twelve calls to the school, beginning on August 25, 2020, and continuing to October 28, 2020, did not go through and the Parents documented their efforts in a call log. (Exhibit P)

STUDENT did well and made progress at SCHOOL. On January 7, 2021, she was discharged from the program. By letter dated January 5, 2021, through counsel, the Parents notified the CSE that STUDENT would be attending the SCHOOL and that they Parents would be seeking tuition reimbursement from the DOE. (Exhibit Q) The cost of STUDENT’s program at SCHOOL from April 30, 2020, through January 7, 2021, was $435 per day, totaling $110,055, plus additional related costs of $7,283.82. The Parents paid these costs in full.(Exhibits L, M, N)

During the remainder of the 2020-2021 school year, STUDENT attended SCHOOL and did very well. SCHOOL offers small classes, individualized instruction and support, and a strong clinical support network. It is also a strong college preparatory program. The prorated cost of tuition at SCHOOL for the portion of the 2020-2021 school year that STUDENT attended, January 20, 2021, through June 16, 2021, was $37,250, which was fully paid by the Parents. (Exhibits T, V) The Parents borrowed money from STUDENT’s grandparents to fund the tuition for the 2019-2020 and 2020-2021 school years. The Parents entered into an agreement with the grandparents for the payment and repayment. They are obligated to repay the money. (Exhibit X)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE participated in only one of the two days of hearing and clearly affirmed that the DOE was not defending its actions. The DOE clearly failed to offer a FAPE to STUDENT for the 2019-2020 and 2020-2021 school years. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.

The Parents have the burden of establishing the appropriateness of the program they have provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with STUDENT, including REDACTED, Dr. REDACTED, Dr. REDACTED, and REDACTED, strongly agree that the programs STUDENT attended in the 2019-2020 and 2020-2021 school years, SCHOOL and SCHOOL, were appropriate for her for those school years. The witnesses provided persuasive testimony and supporting evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the placements and programs and demonstrates that they addressed STUDENT’s individual and complex needs and were reasonably calculated to allow her to make meaningful progress. In fact, she made meaningful progress through her participation in the programs in the 2019-2020 and 2020-2021 school years.

It must be emphasized that the DOE did not raise any challenge to the appropriateness of STUDENT’s placements at SCHOOL and SCHOOL. There has been no aspect of the Parents’ hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE expressed disagreement. The entirety of the Parents’ case for the 2019-2020 and 2020-2021 school years is undisputed. I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parents’ claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude an order in favor of the Parents. The record clearly established the Parents’ continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parents.

ORDER

• • The DOE failed to offer a FAPE to STUDENT for the 2019-2020 and 2020-2021 school years;
• • The Parents’ unilateral placement of STUDENT at SCHOOL was appropriate for the 2019-2020 and 2020-2021 school years, from April 30, 2020, through January 7, 2021;
• • The Parents’ unilateral placement of STUDENT at the SCHOOL was appropriate for the 2020-2021 school year from January 20, 2021, through June 16, 2021;
• • There are no equitable considerations which would reduce or bar an award of reimbursement for the 2019-2020 and 2020-2021 school years; and, therefore,
• • The DOE shall reimburse the Parents for the tuition paid to SCHOOL in the amount of $117,338.82 for the period from April 30, 2020, through January 7, 2021, during the 2019-2020 and 2020-2021 school years. Payment shall be made immediately, since the Parents have already submitted proof of payment to the DOE. (Exhibits L, N); and,
• • The DOE shall reimburse the Parents for the tuition paid to the SCHOOL in the amount of $37,250 for the period from January 20, 2021, through June 16, 2021, during the 2020-2021 school year. Payment shall be made immediately, since the Parents have already submitted proof of payment to the DOE. (Exhibit V)

Dated: July 28, 2022 Amy Lynne Itzla, Esq.

Amy Lynne Itzla, Esq.

Arbitrator

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/ appeals.htm.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2022

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2022

REDACTED

DOCUMENTATION ENTERED INTO THE RECORD

Parents’ Exhibits - REDACTED