New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 553120 - NYC: 209224

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE APRIL 28, 2023 HEARING

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Parent Parent

I. INTRODUCTION AND PROCEDURAL HISTORY

On June 30, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents ("Parent" or "Parents"). A prehearing conference was held on August 5, 2021, status conferences were held on October 13, 2021, December 14, 2021, February 11, 2022, April 11 2022, October 7, 2022, December 6, 2022 and February 3, 2023. Hearings were held on March 6, 2023 and April 28, 2023. The REDACTED ("REDACTED") did not appear for the hearings and Parent was represented by REDACTED, Esq. and REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective April 28, 2023.

II. BACKGROUND

Parent filed a due process complaint on June 30, 2021, alleging a denial of a Free and Appropriate Public Education for the 2021-2022 school year, and requesting tuition at the REDACTED School. (Exh. A). There were two days of hearing. The REDACTED did not appear for either day, did not submit evidence, and did not ask for an adjournment or justify its absence. Parent provided direct testimony by affidavit of two witnesses, a representative from the unilateral placement and Parent. Both witnesses were available for cross-examination during the second day of hearing.

III. DISCUSSION

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student received the requested placement pursuant to a pendency agreement dated June 29, 2021. The agreement provided for placement at the REDACTED School starting the date of the due process complaint, July 6, 2022. (Exh. A). The request was based on an unappealed Findings of Fact and Decision finding the same program appropriate.

Student attended the REDACTED School for the entirety of the 2021-2022 school year. The REDACTED School is a private school for students on the autism spectrum providing one to one student teacher ratio, ABA therapy, individually designed positive behavior support plans, and related services. (Exh. F and Exh. R). Classes have between four and five students and a 1:1 ABA instructor for each student, as well as speech and language and occupational therapy, provided by certified therapists. (Exh. R, pages 1-2). The school day runs from 8:45 am to 4:45 pm on a twelve-month schedule, and each student has an individualized sessions schedule. (Exh. R, page 2). A multi-sensory team approach is used. (Exh. R, page 2). A remote learning plan was developed to address education during the Pandemic. (Exh. G).

Student began attending the REDACTED School in July of 2015. (Exh. R, page 1). Student is predominantly non-verbal and cannot read or count and exhibits interfering behaviors. (Exh. S, page 1). His programs were developed and closely monitored to address Student's needs, including weekly supervision meeting. (Exh. R, page 2). Student's skills were assessment and updated twice yearly using the ABLLS-R; Student exhibited deficits across all domains. (Exh. R, page 3). The results from the May update were used to develop the new IEP goals, which addressed deficits in all domains. (Exh. R, page 3).

Student was in a classroom with a total of five students with similar ages, needs and skills. (Exh. R, page 3). Student's schedule included independent work, story, literacy centers, activities of daily living groups, social skills and emotions group, art, dance, and play and leisure. (Exh. H). A behavior plan was developed and implemented to address Student's interfering behaviors, including increasing social behavior skills such as noncontextual vocalizations, laughing, hand and body movements, tantrums, aggression and self-injurious behavior. (Exh. K and Exh. R, page 4). Student received daily individual speech therapy for 45 minutes in the classroom and individual occupational therapy in the gym for 45 minutes. (Exh. R, page 4). His speech and language goals addressed receptive and expressive language deficits and social and play skills. (Exh. R, page 4). Student's occupational therapy goals addressed sensory processing, fine and gross motor skills, visual perceptual skills and self-care. (Exh. R, page 5). There was frequent communication between parents and the classroom team, including a daily email, and three parent teacher conferences. (Exh. R, page 5). Student's team members also collaborated frequently, including a weekly team meeting to review progress towards goals and carryover. (Exh. R, page 5). While attending school remotely, Student participated in live instruction via Zoom, with continuation of Student's behavior plan and related services. (Exh. R, page 6).

Student made progress during the 2021-2022 school year. Parent submitted speech and language therapy, occupational therapy, and educational progress reports indicating progress in all relevant domains. (Exh. L, Exh. M, Exh. N. Exh. O and Exh. P). He made progress in his inferencing skills, improved his communication skills using Proloquo2. (Exh. R, page 4). He made progress in his occupational therapy goals, including learning to tie his shoes, using scissors and writing skills. (Exh. M, Ex. P and Exh. R, page 5). Student made progress in his reading and math skills, as well as play and leisure skills. (Exh. R, page 5). Parent reports slow and steady progress at REDACTED, including improved communication skills which he generalized at home and decreased interfering behaviors. (Exh. S, page 6).

Parent signed an enrollment contract on or about March 22, 2021 for the 2021-2022 school year. (Exh. D). The contract provided for cancellation prior to July 15, 2021 if the Parent accepted a REDACTED placement. (Exh. D, page 2 and Exh. S, page 7). Tuition was paid in full, including a payment by the REDACTED, and a $10,000 payment made by Parent. Parent is seeking reimbursement for his deposit. (Exh. A and Exh. E).

Parent filed a Ten-Day Notice on June 16, 2021. (Exh. B). There is nothing in the record to indicate a response.

FAPE

The IDEA was enacted to "to ensure that all children with disabilities have available to them a free appropriate public education" ("FAPE") and to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student's IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). 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). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order "to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "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 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); Perricelli, 2007 WL 465211, at *15). 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 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

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); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. 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), 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).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not appear for either day of hearing. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

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 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents' choice turns on whether the chosen school "is reasonably calculated to enable the child to receive educational benefits." Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is "one that is 'likely to produce progress, not regression.'" Id. (quoting Walczak, 142 F.3d at 130). The parents' choice must be "appropriate," "not . . . perfect." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement "need not meet state education standards or requirements." Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement . . . provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Gagliardo, 489 F.3d at 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a child with disabilities, supported by such services as are necessary to permit the child to benefit from instruction." the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that the REDACTED School understands Student's unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2021-2022 school year.

TRANSPORTATION

Parent requests, in his due process complaint, round trip transportation to and from the REDACTED School for the twelve-month program. (Exh. A, page 11). Parent's uncontroverted testimony is that the REDACTED failed to provide transportation. (Exh. A). Therefore, I order the REDACTED to reimburse Parent for expenditures associated with round-trip transportation to and from the REDACTED School within thirty days of proof of such expenditures.

IV. ORDER

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2021-2022 school year.

2. The REDACTED shall fund/reimburse Parent for tuition at the REDACTED School for the 2021-2022 school year within thirty days of receipt of invoice or proof of payment and proof of attendance less any payments made pursuant to the pendency agreement.

3. The REDACTED shall reimburse Parent for the cost of transportation to and from the REDACTED School within thirty days of invoice, proof of delivery of service and proof of payment.

Dated: May 9, 2023

AUDREY DANIEL, 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.

EXHIBITS ADMITTED AT HEARING

None

A. Parent Seq: EVIDENCE DESCRIPTION Date of # of Date Evidence Pages Disclosed Demand for Due Process with email confirmation 06/30/21 13 04/21/23

B. Ten Day Letter with email confirmation 06/16/21 04 04/21/23

C. School Email Sharing reports with CSE, including: 03/12/21 41 04/21/23 • Educational Report by REDACTED, dated Dec 2020 • Behavior Reduction Plan by REDACTED, dated 2020/2021 • SLP Progress Report by REDACTED, dated Dec 2020 • OT Progress Report by REDACTED, dated Jan 2021

D. Enrollment Contract by REDACTED School 03/22/21 03 04/21/23

E. Tuition Affidavit by REDACTED School 07/19/22 01 04/21/23

F. School Program by REDACTED School 2021/2022 02 04/21/23

G. Remote Learning Plan by REDACTED School 2021/2022 02 04/21/23

H. School Schedule by REDACTED School 2021/2022 01 04/21/23

I. Attendance Record by REDACTED School 2021/2022 01 04/21/23

J. Educational Progress Report by REDACTED School December 39 04/21/23 2021

K. Behavior Reduction Plan by REDACTED School 2021/2022 07 04/21/23

L. Speech and Language Progress Report by REDACTED December 06 School 2021 04/21/23

M. Occupational Therapy Progress Report by REDACTED January 04 School 2022 04/21/23

N. Educational Progress Report by REDACTED School June 2022 34 04/21/23

O. Speech and Language Progress Report by REDACTED June 2022 07 04/21/23

P. Occupational Therapy Progress Report by REDACTED June 2022 04 Q Resume and License of REDACTED Undated 03 04/21/23 04/21/23

R. Affidavit of REDACTED 04/21/23 06 04/21/23

S. Affidavit of REDACTED 04/18/23 08 Impartial Hearing Officer None. 04/21/23