New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 553609 - NYC: 209714

FINDINGS OF FACT AND DECISION

Case Number: 209714

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: May 9, 2022

June 2, 2022

June 28, 2022

Actual Record Closed Date: August 20, 2022

Hearing Officer: Judith Schneider, Esq.

The following concerns an Impartial Hearing conducted remotely via video conference by me for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parent dated July 1, 2021 (Ex. A) I was appointed Impartial Hearing Officer on December 17, 2021. A prehearing conference was held on January 3, 2022. Status conferences were held on February 2, 2022, March 7, 2022 and April 5, 2022. Hearings were conducted on May 9, 2022, June 2, 2022 and June 28, 2022.

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements, and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is August 29, 2022. The record closed on August 20, 2022, when the period provided for parent submission of a reply to the district’s closing elapsed.

Positions of the Parties The parent asserts, among other things, that the April 12, 2021 IEP was substantively and procedurally defective and that the district failed to provide a FAPE for the 2021-2022 school year (“SY”) The parent unilaterally enrolled the student in REDACTED (“the School”) which the parent asserts was appropriate and for which the parent seeks district funding. The parent, asserting financial incapacity, seeks direct payment of the balance due. The parent also asserts that the student ‘s program should have included 5 hours weekly of at home PROMPT-based speech language therapy “PROMPT and seeks a bank of compensatory hours for therapy not provided at the provider’s rate. The parent also requests special education transportation with accommodations as specified in the April 12, 2021 IEP. (Ex. I)

The district asserts that a FAPE was provided. Further it claims that the parent has failed to establish that the program provided was appropriate arguing that behaviors were not properly addressed. The district disputes the parent’s claim of entitlement to the PROMPT therapy sought and objects to the provision of any compensatory services. The district has not stated an objection on the ground of equity but asserts parent misrepresentation with regard to the history of this matter. No objections to the parent’s financial incapacity claim or request for transportation has been asserted by the district. (Ex. II)

Cases Presented

Both parties submitted documents for entry into the record. A list of documents in the record is appended.

The district presented no witnesses. The parent presented the testimony of: a Director of the School (via affidavit); the student’s special education teacher (via affidavit); the Clinical Director of the agency providing the student’s home SLT (“the PROMPT Clinician”) (via affidavit); and the student’s mother (“the parent”) (via affidavit.) Each of the affiants appeared for cross-examination.

Findings of Fact and Conclusions of Law

A Factual Findings The student was 6 years old at the commencement of the 2021-2022 SY. His classification is Autism. (Ex. C) He is diagnosed with Autism Spectrum Disorder with Impairment in Language. (Ex. O) He has severe deficits in cognitive and adaptive functioning, all areas of communication (he is described as essentially non-verbal), has deficits in gross and fine motor skills, daily living skills and age appropriate interaction, has behaviors which include negative and self-injurious behaviors, and he has significant attention deficits. (Exs. C, O, P, N) Psychological testing to determine various cognitive and other levels was attempted but could not be completed. (Exs, O, P)

The student received Early Intervention services. His CPSE prekindergarten program included a non-public special education preschool in a 6:1:3 program. (Exs. O, II) For his Turning-5 kindergarten year (2020-2021 SY), he was unilaterally parentally placed at the School. (Ex. S) The parent thereafter filed an impartial hearing request concerning the 2020-2021 program (Case no. 199819). (Ex. B) ^[1]

The CSE convened on April 12, 2021 to develop a program for the 2021-2022 SY and recommended a Special Class District 75 6:1:1 with Adaptive Physical Education (3x), occupational therapy (“OT), speech and language therapy (“SLT”), physical therapy (“PT”),, Parent Counseling and Training (“PTAC”), a full time (1:1) paraprofessional (toileting) and Assistive Technology (a speech generating device.) (Ex. C) Parent and School staff concerns were expressed at the review. (Ex. S) The parent thereafter visited the recommended placement. (Ex. B)

On April 27, 2021, the parent executed an enrollment contract with the School requiring payment of $135,649 for a 12 month 2021-2022 SY program. It was stated that tuition was individualized based upon certain anticipated related services (paraprofessional services- $31,090) and that the amount could change if service recommendations changed. The contract permitted withdrawal with no further obligation by July 15, 2021 to attend a public school or CSE placement and in such circumstance only the deposit paid would not be refunded. (Ex. F) The student received paraprofessional services throughout the 2021-2022 SY. (Exs. T, U, R)

By letter dated June 17, 2021, the parent informed the CSE of concerns with the program and placement, and that the student would be placed at the School in a 12 month program to commence July 2021 if those concerns were not appropriately addressed. (Ex. B) No response was received. (Ex. S)

The parent has made no payments but for a $100 deposit and is financially unable to pay the amount due and seek reimbursement. (Exs. I, Q, T)

The instant due process complaint was filed on July 1, 2021. (Ex. A)

B Conclusions

1. Payment for Services Unilaterally Provided The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

Prong 1 The parent claims various CSE/IEP deficiencies. The district has presented no witnesses to establish that it provided a FAPE. Although the district submitted various documents including an IEP, an IEP without testimony to explain its appropriateness cannot establish that a FAPE has been provided, notwithstanding the provision of additional documents. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

Accordingly, I conclude that the district has not met its burden to establish that it provided a program reasonably calculated to result in meaningful educational gains in light of the student’s unique circumstances. Endrew F.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

The testimony and evidence presented by the parent with regard to the School program was credible and uncontroverted. It established the student’s substantial academic, related service and social/emotional special education needs and included his diagnoses and the basis for his disability classification. (Exs. O, R, P, S, T, U). Further, the evidence is persuasive that the placement appropriately addressed those needs by providing a program which included, among other things, a class of 7:1:1 plus 6 paraprofessionals including a full time paraprofessional for this student, appropriate grouping, necessary related services, appropriate curricula and behavioral support, assistance with appropriate Assistive Technology, appropriately credentialed staffing, collaboration within the School as well as routine team meetings, routine standardized assessments, professional development and parent training and counseling. (Exs. G, L, T, U) I note that the program is consistent with the recommendations of the Psychological Evaluation. (Ex. O) Further, the evidence shows that the student has progressed. (Exs. M, N, S, T, U)

The district asserts that the program does not appropriately address the student’s behaviors, claiming that insufficient ABA methodology is utilized. I do not agree. The evidence shows that a BCBA observes the student at least once a day, that data is collected daily and reviewed at least weekly by a BCBA. A token board system with reinforcers was utilized, data with regard to usage was gathered and reviewed by the BCBA. Precursors to inappropriate behaviors have been identified by the BCBA and targeted interventions have been developed. The student’s maladaptive behaviors have decreased. (Ex. U) In the foregoing circumstances I give no weight to the absence of a formally denoted Behavior Intervention Plan. (T147) I note that a formal plan is not required if it is established that appropriate supports/techniques to address the student’s needs are provided. R.E.^[2]

I find that the placement provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services as were necessary to permit the student to benefit from instruction. I conclude that the parent’s burden has been met.

Prong 3 The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)

The district has made no claim that the parent failed to cooperate with the CSE and I conclude that such a claim is not supported by the evidence which shows parental attendance at the review, timely notification of parental concerns and a visit to the recommended school. District claims of parent misrepresentation in this proceeding result, I conclude, from parent misunderstanding of the prior FOFD and pendency requirements; I give it no weight and therefore do not address consequences of deliberate misrepresentation. Undisputed evidence establishes parental financial incapacity and the need for direct funding.

2. Compensatory Services

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring, as here, during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

A parent is not, however, entitled to all relief claimed when a denial of FAPE is determined. As discussed above, relief must be commensurate and equitable. Further, with regard to the inquiry that must be made, I note that it is well established that in developing an IEP a district need not provide the best possible program- i.e. maximize potential. Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I conclude that similarly there is no entitlement to that with regard to relief when a district has failed to provide a FAPE. I therefore consider what is appropriate in view of the DOE’s failure here.

With regard to parent’s request, I note the following: There is no formal diagnosis of Apraxia in this record. The Psychological Evaluation (“Evaluation”) diagnoses ASD with impairment in language and recommends daily speech sessions (not PROMPT therapy. Although the Evaluation does not specify the length of the session there is no indication that the evaluator was recommending more than the 30 minute sessions previously provided. (Ex. O) The School provides 3 30 minute sessions weekly from a PROMPT certified clinician. (Ex. T, T134-135) The Clinical Director had no knowledge as to the therapy provided at the School and indicated no knowledge as to progress in necessary expressive/functional areas recommended in the Evaluation other than verbal speech although I conclude that progress in those areas has been demonstrated. (Exs. O, T, U, T175, 181-182) Although the Clinical Director testified that the student had regressed with regard to verbal speech since the period in 2019 when he last received services from her agency and concluded that the services he was receiving were not sufficient, it is the case that the pandemic commenced in March 2020 and that a regression in the circumstances of limited/altered delivery of speech services is not unexpectable. Further, the Clinical Director acknowledged the difficulty of providing traditional PROMPT therapy to this student in his circumstances which included extreme sensitivity to touch. (Ex. V)

Based upon the foregoing I conclude that the student should have received from the CSE an additional two 30 minute sessions weekly of speech and language therapy with methodology to be determined by an appropriately licensed clinician to be provided at home or in school at the option of the parent. A bank of compensatory services for services not provided is ordered and the district is required to fund services already provided as set forth in the ORDER below. ^[3]

ORDER

It is HEREBY ORDERED that:

• • The district shall with 45 days of issuance of this order directly pay the School $135, 549 and shall reimburse the parent $100 for tuition for the 2021-2022 SY (12 month program). The district may, however, require satisfactory evidence of: the student’s attendance, that the tuition charged was the School’s usual and customary rate and of parental payment.
• • The student should have received as part of his IEP program an additional two 30 minute SLT sessions weekly (12 month program), to be provided at home or at the School, at the parent’s option, at a rate of up to $175 per hour ($87.50 per 30 minute session). The district shall, within 45 days of the issuance of this order, issue authorizations for the above services provided from November 27, 2021 to the extent that those services have not funded by payments made pursuant to pendency requirements
• • The student is entitled to a bank of hours for the services specified in Paragraph 2 above (two 30 minute sessions weekly at a rate of up to $175 per hour ($87.50 per 30 minute session)) for the period between July 1, 2021 and November 26, 2021 The hours shall be utilized at home or school at the sole option of the parent and must be utilized by June 30, 2024. The district shall issue the appropriate authorizations within 45 days of the issuance of this order.
• • The student is entitled to receive special education transportation with the following accommodations: Limited Travel Time; Route with Fewer Students; Door to Door. (Ex. C)

Dated: August 28, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

1 7/1/2021 Due Process Complaint 9 pgs.

2 6/17/21 10 day notice 2 pgs.

3 4/12/2021 IEP 35 pgs.

4 8/30/2021 Prior Written Notice 4 pgs.

5 8/30/21 School Location Letter 3 pgs.

6 4/12/2021 IEP (Revision) 35 pgs.

7 2/2020 Teacher Progress Report (Class, SLT

OT, PT, Art therapy) 9 pgs.

8 4/2/2020 Psychological Evaluation 8 pgs.

9 2/27/20 Psychoeducational Evaluation 3 pgs.

10 12/2020 Quarterly Progress Report 14 pgs.

Parent

A 7/01/2021 Due Process Complaint 9 pgs.

B 6/27/2021 10 Day Notice 4 pgs.

C 4/12/21 IEP 30 pgs.

D 4/20/2021 PWN 4 pgs.

E 4/20/2021 School Location letter 2 pgs.

F 21-22 Enrollment Contract 4 pgs.

G 21-22 Program Description 2 pgs.

H 21-22 Remote Learning Plan 1 pg.

I 21-22 Tuition Affidavit 1 pg

J 21-22 Attendance Record 12 pgs.

K 21-22 Summer Schedule 1 pg.

L 21-22 Class Schedule 1 pg.

M 21-22 Summer Progress Report 6 pgs.

N 21-22 Progress Report 10 pgs.

O 21-22 Psychological Evaluation (XXX ALS) 8 pgs.

P 21-22 Psychological Evaluation (D XXX) 3 pgs.

Q 2021 Parent Tax Return 2 pgs.

R 4/28/22 SLT Progress Report 5 pgs.

S 5/23/22 Affidavit of Mother 4 pgs.

T 5/24/22 Affidavit of Director-School 5 pgs.

U 5/25/22 Affidavit of School Special Ed. Teacher 6 pgs.

V 6/28/22 Affidavit of PROMPT provider 8 pgs.

****EXHIBITS INCLUDE DUPLICATIONS AT REQUEST OF PARTIES*****

Impartial Hearing Officer

I Parent Closing

II District Closing with FOFD Case 199819

Footnotes

[1] In a FOFD issued on September 18, 2021, the Impartial Hearing Officer (“IHO”) concluded, among other things, that there was no basis in that record for a determination that specifically PROMPT speech and language therapy should be ordered. The IHO concluded, however, that the student should have been provided with an additional two 30 minute sessions per week of SLT and ordered as compensatory services for the failure to provide that a bank of 50 hours at the provider’s prevailing rate up to $175 per hour to be used at home or in school at the option of the parent by June 23, 2023. (Ex. II) Persistent references in the record to PROMPT therapy are a pendency entitlement result, I conclude, from a misunderstanding of the FOFD, which provided an additional two 30 minute sessions per week of SLT, which the IHO concluded should have been provided but was not and compensatory services of 50 hours to make up for that failure. Accordingly, I conclude that the two additional 30 minute sessions should be considered in the determination of pendency entitlements while the 50 make up hours should not. The student has received five 30 minute weekly sessions of home based PROMPT SLT since November 27, 2021. (Ex, S) It appears that is based upon the two sessions per week of SLT the student should be provided with pursuant to pendency and the utilization of the “bank” of 50 hours provided.

[2] The district’s claim that the use of Floortime as a technique is inconsistent with and/or diminishes the effectiveness of ABA methodology utilized is simply asserted by the district in its closing and is not supported by evidence in the record. (Ex. II)

[3] The parent is also claiming, and credible evidence indicates, that the district has not yet provided the bank of 50 compensatory hours required by the prior FOFD. That issue, however, concerns implementation of a prior order and is not within my jurisdiction.