New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552841 - NYC: 208966

FINDINGS OF FACT AND DECISION

Case Number: 208966

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 7/21/21

8/26/21

9/28/21

Record Close: 12/27/21

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 21, 2021 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 26, 2021 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 28, 2021 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

[REDACTED], Director, [REDACTED]

For the Department of Education:

[REDACTED], ESQ., Attorney

* All appearance were by telephone.

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

[REDACTED] ([REDACTED]) is [REDACTED]-year-old student whose parent [REDACTED] ([REDACTED]) brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2020-2021 and the 2021-2022 school years.

The hearing convened for a pendency hearing on July 21, 2021 and a pendency decision was issued on August 20, 2021. The hearing reconvened on August 26, 2021 and following consolidation with a second due process complaint notice (DPCN) filed September 9, 2021, the hearing continued on September 28, 2021. Post-hearing submissions were due November 18, 2021; none was submitted by the DOE nor was any explanation for the omission provided. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) dated June 21, 2021 included multiple claims that the DOE had failed to provide [REDACTED] an appropriate educational program and placement for the 2020-2021 school year, requesting placement of the student in the 2021-2022 at the [REDACTED] ([REDACTED], or [REDACTED]) or in the alternative identification and placement in an appropriate twelve-month program offering a specialized curriculum. Ex. H. In the DPCN dated September 9, 2021, the parent repeated much of what was claimed in the initial DPCN, focusing on the claims concerning the DOE’s failures for the 2021-2022 school year, with the same demands. Ex. P.

As noted, a pendency hearing was conducted July 21, 2021, and an order of pendency issued October 20, 2021, ordering the DOE to fund or provide reimbursement for the student’s attendance at [REDACTED] pending decision in the current case.

On August 26, 2021, the district’s attorney stated that the district would be putting on a case that the DOE had provided a FAPE to the student. In regards to the other prongs of a Burlington-Carter analysis, he stated that the district would be requiring the parent to meet its burden under prong two, said did not see an issue yet regarding equities under prong three. The parent attorney repeated the request for placement at [REDACTED] for the 2020-2021 school year, and when asked, stated that at this point, there was no due process complaint filed for the current 2021-2022 school year. The parties identified witnesses who would be appearing at hearing.

At hearing on September 28, 2021, the district’s attorney stated that he wasn’t able to secure the witness for the scheduled date. The IHO noted that a new request for the 2021-2022 school year had been filed following the previous hearing date, and when asked the district position on consolidation, the district’s attorney stated there was no position. The parent attorney confirmed that there was no significant change in the new claim, stating that there been no new IEP and the parent was just asking for the same relief for the 2021-2022 school year. The parent requested to do a written closing brief, and the district’s attorney agreed to submit a written closing brief. As noted above, there was no submission made by the district.

FINDINGS OF FACT

A neuropsychological evaluation of [REDACTED] conducted by [REDACTED]report dated September 14, 2020, described [REDACTED] as presenting with ASD, level III, without intellectual impairments, requiring very substantial support for deficits in social communication and restricted behaviors, at a severe level, and noted him scoring much higher than indicated on his educational records. He was also diagnosed as having a specific learning disorder with impairment in reading, a specific learning disorder with impairment in written expression, and a specific learning disability with impairment in mathematics. [REDACTED] expressly stated that his educational needs have not been met. She stated that he requires a nonpublic school, which specializes in the education of children with autism spectrum disorder, requiring 1:1 instruction using ABA techniques or DTT or teach or a combination for 25 hours per week. He also requires 10 hours of ABA instruction at home. Her recommendation, expressly stated that referral to the central based support team is recommended. Ex. B.

[REDACTED] recalled the evaluation’s recommendation for a different setting, with which she agreed, stating she knew he wasn’t making any progress at the high school he was in. She had asked about helping him with reading, because he was going out on trips every day with his teacher, and the response she got was the teacher that told her she was paranoid and waved her off. Tr. 107-121. At an IEP meeting held on November 2020, the recommendation was for a special 6:1:1 class, with speech language therapy three times weekly in a group of three for 30 minutes, occupational therapy once weekly in a group of two for 30 minutes, and parent counseling and training three times per year for 60 minutes. Ex. L.

[REDACTED] began at the [REDACTED] during the 2020-2021 school year, starting on November 18, 2020 and continuing through that school year, until June 2021. [REDACTED], executive director, founder, and principal at the [REDACTED] described her qualifications, testifying that she had certification, both in special education and administration. She described her work in the past with students with autism, emotional disturbances, and other learning differences, including her experience with students with autism, training in applied behavior analysis (ABA), and her tutelage under [REDACTED], creator of the [REDACTED] model.

[REDACTED] described the [REDACTED] as predominantly a school for children with autism, with a multi-strategic based program, utilizing different aspects of teaching modalities and curriculum custom tailored around the progress and profiles of the students. She stated that the school has a very strong sensory component, noting a sensory gym, light therapy room, and separate work areas in classrooms and outside the classroom where the students are able to work in groups or separate work environments depending on how they respond. She also described a strong communication approach, working closely with speech and occupational therapy teams, to have the services embedded and working with the classroom teams to ensure strategies are being carried over. Students receive mandated related services. ABA and data on IEP goals are incorporated into the school program, measured through intermittent observation, communication with the family, and assessment of the goals.

The school currently has [REDACTED] students from age [REDACTED] years old, in [REDACTED] classes. There are [REDACTED] teachers, with a minimum BA and in pursuit of certification or a Master’s degree; they have to have a minimum of 3 to 5 years’ experience with autism and special needs. [REDACTED] described bringing in people on professional development days, covering topics such as ABA, DIR Floortime, TEACCH, crisis prevention and intervention. The school curriculum is based on the academic skill set of the child modified for sensory needs in implementation. She gave examples of various curricula being used, including ASD Reading, Open Court, Lindamood Bell, and Handwriting Without Tears. The school uses the curriculum Zones of Regulation and Social Thinking to address the emotional and social challenges often related to autism.

Asked about [REDACTED], [REDACTED] described reviewing his neuropsychological evaluation and IEP in his application to the school. He also spent time in the classroom, and she interviewed him herself. The parent had reported that they felt he was not making meaningful progress in his academics, and was having difficulty communicating and being recognized, that he was very withdrawn in his performance.

Asked about his progress in the 2020-2021 school year, [REDACTED] stated that the most prominent area of growth for [REDACTED] was seen in his verbal communication. At the start, he required a lot of prompting and support, but his social engagement increased, and his ability to ask questions, both academically and personally was very positive. She cited his progress report in June 2021. In terms of related services, specifically occupational therapy, she noted improvement in his handwriting, his ability to sequence, and overall executive functioning. In speech, his emotional ability to identify his feelings and ask questions was still emerging, but he showed significant change in his communication with adults and with peers. She stated that the school psychologist was able to move [REDACTED] through multiple levels of short-term objectives on his goals, both academically and communicatively. Tr. 77-105; Exs. M, N, O.

There was an IEP meeting on April 5, 2021. [REDACTED] stated that she attended the meeting. [REDACTED] was representing the district. Also present were [REDACTED]’s teachers and [REDACTED]. [REDACTED]’s evaluation was discussed, but they didn’t want to recommend any of the recommendations. [REDACTED] just really wanted [REDACTED] back in a district 75 school, and despite her objections and a letter she wrote, nothing happened. According to the parent, the district continued the same recommendation for a placement for district 75 school. Tr. 107-121. [REDACTED] also participated in the.CSE meeting by telephone. She stated that they tried to address the neuropsychological evaluation, but it wasn’t acknowledged. There was disagreement terms of the placement in district 75, and a bit of what she described as a “volatile dialogue.” Tr. 77-105.

The recommendation was for special 6:1:1 class, with speech language therapy once weekly in a group of two for 30 minutes in the classroom and twice weekly individually for 30 minutes, occupational therapy twice weekly individually for 30 minutes, and parent counseling and training once monthly for 60 minutes. Ex. C. There were some changes in the scheduling of related services, but the recommendation for class placement was the same as in the student’s previous IEP dated November 6, 2020. Ex. L.

SH described progress [REDACTED] has made at [REDACTED], stating that he is reading now, understanding, his math, purchasing, what signs mean. He has more language, and is speaking in full sentences now. She can ask him questions and he can recall and bring back what he did in the day. Tr. 107-121.

Contract. The contract with [REDACTED] for the 2021-2022 school year, signed May 25, 2021, had a tuition fee of $108,300 for the 2021-2022 school year. Ex. F. Asked about finances, [REDACTED] stated that she got roughly $600 per month from [REDACTED]’s father, and she also receives disability of approximately $1600 monthly. She was unaware of the costs of the school, and stated she would be able to afford tuition on her own. Tr. 107-121.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

In this case, the district representative stated that the DOE had provided the child with a FAPE in the 2020-2021 school year, and provided documentary evidence but no witness testimony. He gave no position on claims concerning the 2021-2022 school year. I note also his statement that he saw no issues concerning equity in this matter. Finally, as previously noted, despite instructions, there was no post-hearing submission by the district.

For the reasons noted, I find the district failed to provide a FAPE for [REDACTED].

ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED]. I reject the district’s argument in its post-hearing brief that the placement was necessary because of the DOE’s failure during the 2020-2021 school year as irrelevant to a determination of appropriateness. I credit the description of both [REDACTED] of [REDACTED] as a school for students with autism, and the various strategies, modalities, and curricula she described, as well as the emphasis on the sensory and communicative aspects of the school. Progress was noted in his verbal communication, social engagement, and ability to ask questions, as well as improvement in handwriting and overall executive functioning. I note in particular [REDACTED]’s description of [REDACTED]’s progress in reading and understanding, having more language than he had before, and speaking in full sentences now.

For all the above, I find that the parents have demonstrating the appropriateness of the program at [REDACTED] for [REDACTED].

ISSUE 3 – Equities The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).

Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, there was no objection form the district based on equities, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for [REDACTED]’s tuition at [REDACTED].

Direct payment.

The parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

In this case, I credit the parent’s undisputed testimony concerning her income and inability to afford the tuition. Under the circumstances, direct funding in this case is warranted.

ORDER

• • The DOE shall directly fund [REDACTED]’s tuition at the [REDACTED] for the 2021-2022 school year at a cost not to exceed $108,300, upon submission of proof of attendance.
• • Payment under Paragraph 1 of this Order shall be reduced by any payment paid under the Pendency Order issued in this case.

IT IS SO ORDERED.

Dated: January 7, 2022

_Nancy M. Lederman____________

NANCY M. LEDERMAN

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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS *

1 Due process complaint, 1/27/20, 6 pages

3 Pendency brief, 7/27/21, 8 pages

4 IEP, 6/21/21, 35 pages

5 Minutes, IEP meeting, 4/5/21, 7 pages

6 Prior written notice, 6/30/21, 5 pages

7 School location letter, 6/30/21, 3 pages

8 SESIS events log, 8/19/21, 48 pages

9 Consent to use of electronic mail, 3/23/21, 1 page

10 Email, parent, 10/30/20, 1 page

11 Neuropsychological evaluation, 9/14/20, 21 pages

12 Psychoeducational evaluation, 10/17/19, 9 pages

13 Social history update, 10/17/19, 2 pages

14 Vineland-3, 10/24/19, 29 pages

15 IEP, 11/6/20, 29 pages

* There was no Exhibit 2 entered in the record.

PARENT EXHIBITS

A Findings of Fact and Decision, 11/10/20, 45 pages

B Neuropsychological evaluation, 9/14/20, 21 pages

C IEP, 4/5/21, 29 pages

D Attendance affidavit, 5/3/21, 1 page

E Letter to the CSE, 5/20/21, 3 pages

F Contract with [REDACTED], 5/25/21, 3 pages

G Ten-day letter, 6/21/21, 1 page

H Due process complaint, 6/21/21, 10 pages

I Prior written notice, 6/30/21, 6 pages

J Correspondence, parent's attorney, 6/30/21, 10 pages

K Memorandum of Law, 7/14/21, 7 pages

L IEP, 11/6/20, 20 pages

M Progress reports, June 2021, 3 pages

N Occupational therapy progress report, 6/18/21, 2 pages

O Speech progress report, 6/18/21, 2 pages

P Due process complaint notice, 9/9/21, 8 pages

Q Petitioners post-hearing brief, 11/17/21, 24 pages