New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552078 - NYC: 208284

FINDINGS OF FACT AND DECISION

Case Number: 208284

Student’s Name:^[1] REDACTED (“Student”)

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: August 20, 2021

Date(s) of Hearing: July 28, 2022; August 10, 2022

Actual Record Closed Date: April 2, 2023

Date of Decision: April 16, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

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

For the Student:

REDACTED, Esq., Attorney

REDACTED, Esq., Attorney (Observing)

REDACTED, Program Director, REDACTED (“PRIVATE SCHOOL”)

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2022

For the Student:

REDACTED, Esq., Attorney

REDACTED, Mother

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 Amended Due Process Complaint (“DPC") filed on or about August 20, 2021. (Parent Exhibit A)^[2] The undersigned IHO was appointed to this matter on December 10, 2021, by the New York City Department of Education (“DOE”).

A hearing was held on July 28, 2022, and August 10, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE was represented by REDACTED, District Representative. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on April 2, 2023.

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)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued 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.

BACKGROUND

STUDENT was an almost REDACTED at the beginning of the 2020-2021 school year. She had been classified by the DOE, through its Committee on Preschool Special Education (“CPSE”), as a preschool student with a disability. The CPSE convened on August 20, 2020, to develop an Individualized Education Program (“IEP”) for STUDENT for the 2020-2021 school year.

By letter dated November 12, 2020, the Parent informed the DOE that she was not permitted to visit the proposed placement due to the Covid pandemic but spoke with someone regarding the school and the program. (Parent Exhibit G) The Parent provided the reasons for her determination that the program was not appropriate for STUDENT. The Parent expressed her willingness to consider other DOE placement options, but informed the DOE that, meanwhile, STUDENT was placed at PRIVATE SCHOOL for the 2020-2021 school year and that tuition funding would be sought from the DOE.

The Parent’s position is that the DOE failed to offer a FAPE to STUDENT for the 2020-2021 school year, that PRIVATE SCHOOL was an appropriate placement for her, and that the equities favor the Parent. The Parent is seeking direct tuition funding from the DOE for the tuition due to PRIVATE SCHOOL for STUDENT for the twelve-month 2020-2021 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE waived its opportunity to present an opening statement, did not offer witness testimony, did not cross-examine the Parent’s witnesses, and waived its opportunity to make a closing argument. When the DOE was given an opportunity to present an opening statement, the following exchange occurred:

HEARING OFFICER ITZLA: Ms. REDACTED, would you like to make an opening statement?

MS. REDACTED: No. The District is prepared to concede Prong I and would like to rest its case at this time.

(T. 30)^[3]

The DOE did not challenge the Parent’s position that the unilateral placement of STUDENT at PRIVATE SCHOOL was appropriate, did not raise any equitable considerations that could affect a remedy, and did not offer any disagreement with, or opposition to, any aspect of the Parent’s entire case.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Program Director, PRIVATE SCHOOL; and REDACTED, STUDENT’s mother.

REDACTED described PRIVATE SCHOOL:

PRIVATE SCHOOL consists of five classrooms, two of which are special education classrooms, three are general education classrooms. Our special education classrooms are for students ages -- like, turning three to five years old. Our general education classrooms actually start from age two.

[T]he special ed classrooms are a program that is designed to align with the ABA methodology, follow the Common Core curriculum, and service children that have language and behavioral deficits. Our students are all physically enabled, and all capable -- cognitively intact to some degree and able to make progress as long as their program was properly designed, tailored, modified, accommodated toward their needs.

We also provide within the program multiple opportunities based -- aligned with the ABA methodology for generalization. When skill -- individual skills are mastered one or two students are able to come into the classroom, into the special education classroom in order to probe for generalization, and when social skills are mastered in a social environment, we can also accommodate one or two gen ed kids to be able to make sure that is generalized as well. And so that's, overall, the plan within our program and the way the program operates.

(T. 37-38)

REDACTED (Program Director) explained her familiarity with STUDENT. She has observed STUDENT in and out of the classroom, and has worked with her team and the Parent, She has overseen STUDENT’s individual plan, data collection, and progress. In the 2020-2021 school year, STUDENT was in a class of 11 students with special needs with one licensed special education teacher and at least two assistants. (T. 39-40)

REDACTED described STUDENT’s emotional extremes and the way she would go from being extremely compliant and capable to extremely defiant, incapable, invading boundaries, and totally out of control behaviorally. This included kicking, screaming, tantruming, and other aggressive behaviors. It was “kind of turning a switch on and off.” We had to figure out how to help her so she would have “additional learning time within that classroom and additional ability to socially interact, engage, and continue to develop.” STUDENT entered the school with a general distrust and was constantly going after other children, from grabbing their hair, to going for an item. It was an attention-seeking behavior, which also included grabbing her own hair, in a sensory-seeking and self-injurious way that was very concerning. Other parents requested that she be kept away from their children because, for example, they came home with a scratch. (T. 40-43)

According to REDACTED, academically, STUDENT came into the school with lower background knowledge, ability, and recall. Based on the way she used language, her readiness skills were extremely poor and “inarticulate in nature.” She had more vocabulary and sophistication than what she was using. “Her go-to was an immature, singsong, baby voice of a lot of echolalia, even though she could have communicated.” Following directions and transitioning were challenging for her and her attention and focus were very scattered. “Her distractibility from self or others was intense.” (T. 43-47)

REDACTED stated that she was familiar with the IEP created for STUDENT at the August 20, 2020, meeting. She expressed her opinion that it was not adequate to enable STUDENT to make meaningful progress. She stated that STUDENT required a full-time program and summer program to prevent continued regression. Her home life was not consistent. Her family had entered a shelter and she required carryover of behavioral and academic skills in order for her not to keep regressing. It would’ve been impossible for her to even make any significant, meaningful progress without that summer service.”

REDACTED explained that the 2020-2021 school year:

[B]egan with a functional behavior assessment, addressing all those challenging behaviors, identifying the interfering behaviors, the function of them, moving to a behavior intervention plan which identified the strategies that we would put in place in order to continue to implement adaptations and modifications in a preventative manner, which is our priority, as well as in a consequential response version as well as instructional replacements.

Those instructional, functional communication replacements were created as a plan in order to mitigate those challenging behaviors that were serving the function, and she should be able to achieve that function with the replacement behaviors, which are language-based and opportunity-based within the classroom. Also identified the reinforcers and the programs that we utilize specifically for STUDENT in order to continue driving that instruction in a controlled environment.

Then we moved to a -- we moved to a treatment plan. Our treatment plan included, comprehensive in nature, all of the individualized goals that covered language, communication, social behavior, academic, and all domains, which were inputted into Rethink, our electronic platform that unites both academic and behavioral graphic images display according to the ABA methodology.

So STUDENT had her own individual electronic portfolio that allowed data collection in real time from her teacher or providers or assistant, anyone working with STUDENT at that time in order to develop a stable consistency of progress across all domains in all areas, and that allowed us to be up -- that allowed us to update her plan quarterly and continue to drive instruction based on data collection.

(Parent Exhibit F; T. 47- 50)

REDACTED described the specific academic, behavioral, social, and emotional progress STUDENT made during the 2020-2021 school year. (T. 51-55) STUDENT was provided speech therapy and occupational therapy by licensed and certified professionals at PRIVATE SCHOOL. (T. 55) REDACTED testified that there was no religious component of the program. (T. 56)

REDACTED (mother) testified that she received a public-school placement from the DOE for the 2020-2021 school year, but the school would not allow REDACTED to visit due to the Covid pandemic. REDACTED was able to speak with someone about the school. Based on what she learned, she did not believe the placement was appropriate. Once of the reasons was that students were only attending in-person twice a week, which was not enough for STUDENT. REDACTED informed the DOE that the placement was not appropriate, verbally and in writing, by letter dated November 12, 2020, but did not receive a response or an appropriate placement for STUDENT. (Parent Exhibit G; T. 62-63) REDACTED testified that she did not have any earnings during the 2020-2021 school year, and she was on public assistance. (T. 63)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT. (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE chose not to present a case. The DOE waived its opportunities to present an opening statement and closing argument, and simply conceded its failure to offer a FAPE to STUDENT for the 2020-2021 school year.

The Parent has the burden of establishing the appropriateness of the program 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 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)

I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s placement at PRIVATE SCHOOL. PRIVATE SCHOOL is an early childhood school “established to enable children with special needs to integrate into the social setting of a general education program. Our multi-dimensional program allows students who require individualized services to benefit from the models and social interaction of the typical children.” (Parent Exhibit B) Those who know STUDENT strongly agree that the twelve-month special education program provided to STUDENT by PRIVATE SCHOOL, was appropriate for her. The program was able to address her needs, provide individualized instruction, and otherwise support her academically, socially, and emotionally. She made progress due to the program being tailored to her individual needs. REDACTED (Program Director) and REDACTED (mother) provided persuasive and unrefuted testimony and supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address STUDENT’s individual and complex needs. It was the consensus of the witnesses that the program was reasonably calculated to allow STUDENT to receive educational benefits and make meaningful progress. REDACTED (Mother) and REDACTED (Program Director) both described the progress STUDENT made during the 2020-2021 school year.

It must be emphasized that the DOE did not raise any challenge to the appropriateness of PRIVATE SCHOOL. There was no aspect of the Parent’s hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE disagreed. The entirety of the Parent’s case was undisputed. I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s placement at PRIVATE SCHOOL.

The final criterion for an award is whether the Parent’s 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]). An award may be impacted by a parent’s 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 an award in favor of the parent. (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 or adversely affect an order in favor of the Parent. The record clearly established that the Parent cooperated and communicated with the DOE. The Parent corresponded with the DOE to share their concerns. Unfortunately, there was no response. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to STUDENT for the 2020-2021 school year;

2. The Parent’s unilateral placement of STUDENT at PRIVATE SCHOOL was appropriate for the twelve-month 2020-2021 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

4. The DOE shall directly pay $144,000 to PRIVATE SCHOOL for STUDENT’s tuition for the twelve-month 2020-2021 school year. Proof of the amount due has already been established. (see Parent Exhibits B, C).

SO ORDERED.

DATED: April 16, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla 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.

THIS PAGE SIBMITTED TO THE PARENT AND SCHOOL DISTRICT ONLY.

NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter Description Date Pages

A   Amended Request for Due Process 8/20/2021 4 Proceeding and Notice of Appearance

B   Student Contract, Program Description, 6/29/2020 24 and Curriculum

C   Affirmations regarding Tuition Breakdown 3/24/2022 2 and Payments

D   Curriculum Schedule 2020-2021 2

E   Student Attendance 2020-2021 1

F   Assessments, Plans, and Reports Various 37

G   Ten Day Notice from Parent to DOE 11/12/2020 2

H CPSE IEP 8/20/20 19

Footnotes

[1] Personally identifiable information is attached to this decision as Appendix A, “Redaction Identification Page,” and must be removed prior to public distribution.

[2] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered Into the Record.”

[3] References to the transcript are indicated by “T.” followed by the page number(s).