New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552517 - NYC: 208688

FINDINGS OF FACT AND DECISION

Case No. 208688

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parents

Record Close Date: May 7, 2022

Hearing Officer: Harriet Gewirtz, Esq.

On June 7, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on June 10, 2021.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a REDACTED student who is classified as a student with a disability. His classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at the REDACTED School for the 2020-2021 school year. The Parents now seek tuition reimbursement for the cost of the REDACTED for the 2020-2021 school year placement. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2020-2021 year, and thus failed to offer the Student a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED placement is appropriate and that equitable factors support the tuition reimbursement claim.

The DOE asserts that it provided the Student with a FAPE, Parents submitted a documentary evidence package, which included the affidavit testimony of three witnesses, and a closing brief.

The Parents submitted a documentary evidence package, which included the testimony of two witnesses, and a closing brief.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's 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. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

MARCH 2020 IEP

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE presented testimony or evidence to support a finding that it offered the Student a FAPE for the 2020-2021 school year up until the December 2020 IEP. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

Here the School Based Support Team (“SBST”) held a timely IEP meeting in advance of the 2020-2021 school year and the parent participated. At the conclusion of the meeting, the SBST developed an IEP narrowly tailored to meet the Student’s educational needs and offered an appropriate program and anticipated that the student would continue placement at PS 84 for his recommended program. The student had two IEP’s during the 2020-2021 school year. The Department defended the IEP in place at the start of the 2020-2021 school year. The parent requested a re-evaluation of the student on October 15, 2020 and the DOE had until January 22, 2021 to comply with the parent’s request for a re-evaluation. 34 § 300.323 provides when IEPs must be in effect. It states: (a) General. At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in § 300.320. DOE Ex. 7 is an IEP that was in effect from March 13, 2020 through March 9, 2021. Therefore, the DOE complied with its obligation under 34 § 300.323, and, had an IEP in effect at the start of the 2020-2021 school year. See, Appeal No. 19-114: “The IDEA requires a CSE to review and, if necessary, revise a student's IEP at least annually. See, 20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]). Additionally, the IDEA requires districts to have an IEP in effect at the beginning of each school year for every student with a disability in the district's jurisdiction See, 20 U.S.C. § 1414[d][2][A]; 34 CFR 300.323[a]); 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81; B.P., 841 F. Supp. 2d at 614). … The district's decision to conduct a student's annual review around an "anniversary date" on a yearly basis meets the statutory and regulatory mandates requiring that a CSE must review and revise, if necessary, the student's IEP, at least annually. See 20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f] [emphasis added]). … [N]either the IDEA or its implementing regulations, nor State law or regulations, requires that a district must hold an annual review for the express and sole purpose of developing a student's IEP or entire program for the upcoming school year. See 20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]).” See, Appeal No. 21-243, p. 10: “Accordingly, review of the December 2019 IEP should have been undertaken as it was the operative program at the time the parents "decide[d] whether to make a unilateral placement . . . [and] [t]he appropriate inquiry is into the nature of the program actually offered." R.E. v. New York City Dept of Educ., 694 F.3d 167 (2012) at 187-88.

The DOE presented three witnesses to defend the recommendation for the ASD REDACTED program at the Student’s community school PS 84. The program hosts a small teacher to student ratio in an ICT setting with both a general education and special education teacher, both well versed and trained to work specially with students on the autism spectrum. DOE Ex. 13 & 20. The Student would have received social developmental curricula (“SDI”) implemented by speech pathologists trained in the area to assist with pragmatic and emotional difficulties that ASD children display. SDI was developed by REDACTED and is an evidence-based program that supports the social/emotional development of ASD REDACTED students. SDI is taught in small groups and reinforced throughout the day. DOE Ex. 13. His ASD/REDACTED classroom was conducive to learning styles of that of ASD students, such as fewer distractions on the walls, movement breaks, priming for changes in routine, and overall extensive time devoted to case-by-case management where teachers and service providers work together to case conference students. DOE Ex. 20.

The IEP was held on March 9, 2020 and the SBST classified the Student as a student with autism and recommended that the student enroll in the ASD/REDACTED program designed for students with autism spectrum disorder (“ASD”). In the ASD/REDACTED program, the teachers are specifically trained through REDACTED as to how to instruct and maintain a classroom for children with ASD. This includes understanding brain functioning and assisting with social and academic interactions for Students like this DOE Ex 13 and 20.

The DOE established through testimony and evidence that the DOE created an IEP uniquely tailored to the Student’s needs and the placement was the least restrictive environment.

This includes their appraisal of a problem, ability to find solutions, cognitive flexibility, difficulties with routines, etc. The services are provided while in an integrated co-teaching setting with two teachers however a smaller teacher to student ratio than a typical ICT classroom. Moreover, summer services are also provided to ensure there is no regression of learned skill, and to assist in maintaining continuity and routine. DOE Ex. 13 & 20, TR 137.

Mr. REDACTED testified via affidavit and provided clear and cogent testimony about his clinical perspective. He noted that the March 9, 2020, IEP team recommended that the Student enroll in the ASD REDACTED program. This included speech therapy, occupational therapy, and the Student parent counseling/training. DOE Ex. 20. Mr. REDACTED opined that this program was appropriate because, among other things, the Student met the criteria required for entry into the program and presented as an ideal fit. He explained that the Student was able to do grade level academic work via standard NYC curriculum, but he struggled with social developmental challenges due to ASD. The Neuropsychological evaluation revealed significant areas of cognitive strength in verbal and listening comprehension, visual spatial abilities and fluid reasoning, but a personal weakness in executive functioning such as working memory and processing speed. He presented with a high IQ overall and academic strengths in writing and math, but low average performance in reading. DOE Ex. 4 & 20.

The speech/language evaluation revealed age appropriate expressive and receptive language skills, with noted awareness of pragmatic skills, though he had difficult regulating his emotions; this prevented him from responding in a pragmatically appropriate fashion on an everyday basis. Teachers reported similar concerns, as the Student had a history of making negative comments, became frustrated with making mistakes and had difficulty matching reactions to situations and appraising the severity of situation. DOE Ex. 7 & 20. In Mr. REDACTED ’s opinion the Student fit the criteria for ASD, performed well academically but struggled with social skills . He stated that the Student would benefit from the REDACTED program.

Ms. REDACTED s, who participated in the Student’s IEP and testified for the DOE that in her professional opinion, the ASD/REDACTED Program was most appropriate for the Student because it best addressed his Autism. The ASD REDACTED program is designed for students with autism who could benefit learning alongside their typically developing peers, gen ed students, while still receiving supports for their autism. Tr 136. She went on to testify that the Student was a perfect fit for the ASD/REDACTED program TR 136-142.

There was concern that the student was unable to self-regulate and had problems with touching himself in class. Per Mr. REDACTED ’ and Ms. REDACTED ’s testimony, the behavior was not so severe as to be an issue that needed to be addressed in the IEP, specifically, rather than addressed with the many self-regulation methodologies in the classroom and identified in the IEP. Tr. 80. Additionally, this was not an issue so severe that the parent or teachers raised the concern at the IEP meeting. Tr. 81; 199; 236.The Student’s providers were aware of the occasional issue, identified what triggered the behavior and established techniques to address the behavior. Tr174-175. The behavior was not something that interfered with the Student accessing the curriculum, nor interfered with the other students. Tr. 163; 176; 197.The providers utilized behavior techniques that targeted the Student’s specific behaviors. Tr. 165,178. These techniques included, “he could always use the break area within the classroom that was available to all the students. And he had movement breaks, and he had other sensory tools that might also help him. Tr 232. Mr. REDACTED , Ms. REDACTED s and Ms. Stauffer affirmed that masturbation is a sensory matter for the Student and that the IEP addressed sensory concerns. Ms. REDACTED s stated that the teachers were aware and handled the situation in various manners.

MS. REDACTED S: We started with a -- a social story which allowed him to understand that it was okay that he had those feelings and highlight, you know, that that's normal to want to engage in that behavior, but also highlighting where you could go to engage in that behavior and times it was appropriate. So that was where we started.

We were also anticipating times he was feeling excited, or before those transition times, before a break, we would remind him and say things like, okay, if you're feeling excited or you're feeling like you might want to touch yourself, you can, you know, ask us to use the bathroom. And that would be an appropriate place to do that. Tr 142-144.

The team devised the management needs after trying out different supports and seeing what worked for the Student best in the classroom. These management needs included, but were not limited to, preferential seating close to the board. His OT identified this need after she noticed he got distracted by his surroundings and peers and stayed most connected when he sat near the board. DOE Ex. 7 & 22. Another management need was the flexible seating, he had various seating options to help his stay alert and allow him movement while sitting. Supra. Chewing gum, because the Student tended to put non-food items in his mouth that were intended as hand fidgets, writing tools or math manipulatives. Supra. Providing breaks as needed, all of his providers would identify when the Student could use a break and offering him strategies. Per Ms. Stauffer and Ms. REDACTED s, movement breaks were always welcomed throughout the day, and a helpful management need for the Student DOE Ex. 21 & 22.

The Student’s goals were addressed in the IEP in all areas. goals addressed his challenges in writing in planning his ideas, revising, and drafting. These were measured during independent writing and writing conferencing with a teacher. The team assessed his goal progress in his writing pieces. Supports provided included daily checklists or goals for writing. The IEP goal regarding solving multi-step math word problems accounts for his challenges breaking down the math problem solving process. This goal was measured during independent math work time on worksheets and exit slips (with 1-2 math problems where the teacher could quickly assess student understanding and progress). Task analyses were also provided to break down multi-step mathematical processes such as 3-digit addition. His GoMath! chapter assessments were also used to monitor his progress. DOE Ex. 21. The goal of decoding developmentally appropriate monosyllabic words directly addresses his decoding, which is a relative weakness for the Student DOE Ex. 7 & 21. Fountas and Pinnell running records and guided reading group notes were used to measure his progress in decoding multisyllabic words. DOE Ex. 21.

The OT provider also addressed the management needs and goals from her clinical perspective and affirmed that the goals and management need were from a collaborative effort with the student’s providers and his parents. DOE Ex 22. The goals and techniques not only sought to address his focus and attention, but also served to address his self-regulation and letter formation. She affirmed that the Student had fidgets to use in his desk and was taught how to use these to aid in his being on task. She affirmed that he liked the feeling of the linoleum coolness of the floors in the hallway, so the providers also worked with him using the hallway as his independent workspace (as his choice) to help him stay more on task. DOE Ex. 22. There was also a break area in the classroom for all of the students to use on an as needed basis and movement breaks throughout the day. DOE Ex. 7 & 22.

The Student’s goals and techniques for self-regulation were devised by various ways. These included if after the OT pushed in the classroom and observed him use a strategy, or if a teacher told her that he used a strategy independently or after their suggestion. DOE Ex. 22.

While the IEP did not specifically addressed masturbation, in viewing the IEP as a whole and given the extensive description of the student, the extensive recommended management needs; the recommended related services and the collaborative components of the program, as described in the evidence and in the IEP, it is clear that the DOE provided a viable and collaborative IEP for the student to derive an educational benefit for the school year. The DOE provided a cogent and responsive explanation, for the CSE’s program and placement recommendations.

DECEMBER 17, 2020 IEP

The DOE stated in advance of hearing, by email to the IHO and the Parents on September 23, 2021, that it did not intend to defend the IEP developed during the 2020-2021 school year, pursuant to the allegations in the DPC, and would only be defending the March 2020 IEP. The DOE reiterated this position on the record as well and has not made any motion to in any way dismiss these allegations. (Tr. 417.) Accordingly, the DOE has defaulted in its burden of proof regarding the December 17, 2020 IEP and the Parents’ allegations regarding the DOE’s denial of FAPE to the Student, as of that date should be deemed admitted. Accordingly, I find that there is a denial of FAPE from December 17, 2020, through 2021 school year.

The DOE has, therefore, met its burden of proof in this proceeding up until December 17, 2020. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement from December 17, 2020- 2021 school year.

The DOE did not challenge the Parents’ contention that the REDACTED placement was an appropriate program and placement for the Student. The Parents presented extensive testimony and submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate (Parent Exs. C-L). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the REDACTED placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (Parent B).

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the December 17, 2020, through 2021 school year. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s December 17, 2020, through 2021 school year REDACTED placement.

The cost of the 2020- 2021 school year REDACTED placement and related services is $83,750 (Parent Ex. F). The Parents are entitled to a proportion of the tuition from December 17, 2020, through 2021 school year.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to reimburse the cost of the Student’s December 17, 2020, through 2021 school year placement at the REDACTED , to be reimbursed to the Parents upon submission of proof of payment of those amounts to REDACTED .

Dated: May 7, 2022

_____________________

Harriet Gewirtz

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.

For the Student:

REDACTED , ESQ., Attorney

REDACTED , Extern

REDACTED , Parent

REDACTED , Parent

REDACTED , School Psychologist

For the Department of Education:

REDACTED , ESQ., Attorney

REDACTED , Special Education Teacher

REDACTED , OT Provider

DOCUMENTS ENTERED INTO THE RECORD

Parent Exhibits

A. Request for Impartial Hearing 6/7/2021 6

B. Notice of Unilateral Placement 9/10/2020 3

C. Letter to REDACTED 10/15/2020 2

D. Neuropsychological and Educational Evaluation 10/7, 10/8/2020 20

DOE Exhibits

1	06/18/2019	Student’s 2019-2020 IEP	13
2	02/24/2020	ASD REDACTED Observation and Report	3
3	01/31/2019	DOE Psychoeducational Evaluation	5
4	05/15/2019	Student’s Child Mind Neuropsychological Evaluation	45
5	12/12/2019	Student’s DOE Speech/Language Evaluation	11
6	12/6/2019	Student’s Child Mind Social Assessment	7
7	3/9/2020	Student’s 2020-2021 DOE IEP	17
8	03/18/2020	DOE Prior Written Notice (PWN)	4
9	09/20/2019	DOE Request for Reevaluation	1
10	9/20/2019	Parent Consent for Additional Testing	1
11	3/03/2020	Notice of IEP Meeting	3
12	06/04/2019	Student ASD REDACTED Application	3
13	Undated	ASD Family Resource Guide	4
14	05/28/2020	Student ASD Class Techniques	7
15	03/24/2020	Confirmation of Consent for Teletherapy	1
16	04/22/2020	Student’s Remote Learning Plan	4
17	Undated	Student Articulation Profile	2
18	Undated	Student 2019-2020 Final Report Card	2
19	12/04/2019	Email Correspondence with REDACTED	2
20		Affidavit in Lieu of Testimony- REDACTED	5
21		Affidavit in Lieu of Testimony- REDACTED	6
22		Affidavit in Lieu of Testimony REDACTED	5