New York City Department of Education, Impartial Hearing Decision

NYSED # 554125 / NYC # 210226

FINDINGS OF FACT AND DECISION

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 05/25/2022

Hearing Officer: Mitchell Regenbogen, Esq.

[Redacted], a minor, by and through

Her Parents, [Redacted]

FINDINGS OF FACT AND DECISION AND ORDER

Petitioner

-against-

Mitchell Regenbogen,

New York City Department of Education, Hearing Officer

Respondent.

PROCEDURAL HISTORY

On May 23, 2022, I completed an impartial hearing by telephone in Brooklyn, New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Parents by a due process complaint filed July 6, 2021, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2021-2022 school year. At the conclusion of the hearing the Parents requested funding of the Parents’ unilateral placement of the Student at the [Redacted] Academy ([Redacted]) for the 2021-2022 school year. Tr. 134:18-21.

I was appointed as impartial hearing officer on December 20, 2021. Hearings were held on January 25, 2022, March 24, 2022, and May 23, 2022.

BACKGROUND AND POSITION OF THE PARTIES

[Redacted] is a [Redacted]-year-old student who has been classified as a student with Autism. Exs. 1,P. The Student’s classification and eligibility for special education services were never in dispute. The Student has attended [Redacted] since the 2020-2021 school year, which school year the District funded, including tuition and home-based Applied Behavioral Analysis (ABA)^[1] instruction and PROMPT^[2] Speech-Language therapy, pursuant to a Findings of Fact and Decision (FOFD) issued on January 2, 2021, on case number 192698. Ex. C.

The District maintains that it provided a FAPE for this Student for the 2021-2022 school year, pursuant to its Individualized Education Program (IEP) issued after its IEP meeting on April 27, 2021, which recommended placement on a District 75 school with related services, Ex. 1, which recommendation came eight months after its IEP dated August 11, 2020, which recommended deferral to the District’s Central-Based Support Team (CBST) for placement of the Student in a New York State (NYS) approved non-public day school (NPS). Ex. P.

The Parents assert that the April 27, 2021, IEP did not provide a FAPE, that the IEP team considered only the same evaluative information that it did for the August 11, 2020, IEP, that the other information available to the team all supported continued deferral to the CBST for placement in a NYS-approved NPS, and that the IEP team’s recommendation for the 2021-2022 school year was without basis and was not reasonably calculated to confer an educational benefit to the Student. The Parents also assert that [Redacted] is an appropriate placement for the Student and that equitable considerations supports the Parents’ claims, neither of which assertions the District opposed. The Parents do not assert that the District’s proposed school could not implement the April 27, 2021, IEP, but assert that the school’s program, as it would be based on an inappropriate IEP, would not meet the Student’s needs.

In support of its case the District submitted into evidence five documents, and called two witnesses, [Redacted], school psychologist and April 27, 2021, IEP team member, and [Redacted], from the District’s recommended D75 school.

The Parents submitted an evidence package containing 16 documents, including an affidavit serving as the direct testimony of [Redacted] principal [Redacted]. Ms. [Redacted] and the Parent, [Redacted], both testified.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a 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].

The Parents raised multiple challenges to the committee on special education (“CSE”) actions and inactions prior to the filing of the due process complaint. Ex. A. 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).

The District’s IEP witness, Ms. [Redacted], testified that they IEP team considered the [Redacted] school reports, and testing not done by the District. Tr. 38:12-19. She testified that the District essentially copied the goals provided by [Redacted] because they were “appropriate.” Tr. 38-39. She testified as to why the Student was recommended for a D75 school instead of a community school, because of the Student’s “high level of need and delays.” Tr. 40:1-8. The witness acknowledged that the parent expressed concerns about the Student’s needs for specific methodologies, saying “that was kind of what their input was.” Tr. 40:14-21. She testified that the IEP recommendations provided a “very supportive environment” for the Student. Tr. 41:6-9, and that the D75 teachers would be “highly trained.” Tr. 41:13-23.

On cross-examination Ms. [Redacted] testified that she never conducted a psychoeducational evaluation nor classroom observation of the Student, Tr. 43:17-24, asserted that the IEP teams usually “refers” to pervious IEP’s, but does not have to make the same recommendations, Tr. 44:11-18, testified that a referral to the CBST for a NYS-approved NPS is a more restrictive recommendation, Tr. 46:13-16, and that a D75 school’s available classes were specifically considered and rejected by the IEP team for the August 2020, IEP because they were “not sufficient to address [Redacted]’s current needs.” Tr. 52:3-23. She testified that because of reports from [Redacted] showing that the Student made progress “we didn't feel it was necessary to defer again [to the CBST].” Tr. 53:7-12. She conceded that none of the teachers or reports indicated that the Student no longer needed one-to-one ABA methodology in a small, private, highly structured educational setting. Tr. 53-55. Ms. [Redacted] testified that between the August 11, 2020, IEP and the April 27, 2021, IEP meeting there were no evaluations conducted of the Student. Tr. 56-20-25. She conceded that despite reports available to the IEP team that the Student engaged in tantrum behaviors, the did not suggest that a functional behavior assessment be done. Tr. 16-24.

Ms. [Redacted] testified the omission on the District’s prior written notice, Ex. 4, that the IEP team considered the psychological evaluation of Dr. [Redacted], prominently displayed on page 1 of the IEP, was a “clerical error.” Tr. 60-61, and conceded that there was no reason to dispute the accuracy of the information in Dr. [Redacted]’s evaluation. Tr. 19-24. She conceded that the recommendations in the August 11, 2020, IEP were consistent with Dr. [Redacted]’s evaluation, rejecting a D75 school in favor of a small, highly structured self-contained school setting, and that the recommendations in the April 27, 2021, IEP, after consideration of the same evaluation, recommended a D75 school that was previously rejected. Tr. 64-65.

While I agree with the District’s general position that every IEP meeting is a new look at a Student’s progress and needs, I find that in this case the District simply disregarded all of the information available to the IEP team, and effectively pre-determined, as a matter of policy regardless of the Student’s needs and the likelihood of academic progress, that it was time to throw the Student into a less restrictive D75 school and see what happens, after recommending deferral to the CBST only eight months prior. The weight of all of the information before the IEP team on April 27, 2021, is clear, from Dr. [Redacted]’s evaluation recommending, inter alia, a 2:1 student to teacher ratio, and ABA services in the school and home setting (at least 5-10 hours a week), Ex. L, to the Student’s progress report showing undisputed progress within that very program, Ex. K, and the Student’s behavioral support plan, Ex. O.

I agree that the District is not necessarily bound by the information available to the IEP team eight months prior. However, if the District has what it believes to be valid reasons to doubt the only information on which it took a different view only eight months earlier, I find that it was incumbent upon the District to conduct new assessments or evaluations, before doing a 180 degree turn solely because of policy or other considerations or speculating that it was time to experiment with a less restrictive environment for an autistic student who was finally making progress.

I find that it is self-evident that all of the information available to the IEP team for the April 27, 2021, IEP was that the Student, regardless of the school placement, needed to continue ABA methodology. Exs. K, L, N. Yet Ms. [Redacted] testified, disturbingly, that an IEP team will never recommend “a program like ABA or one-to-one instruction…because that’s just not something that we do based on our guidelines.” She goes on to say that such a recommendation would “pigeonhole a teacher into one way of teaching…” I find that the only reasonable way to interpret that testimony is that there is a District-wide policy to pre-determine a Student’s recommended program based on policy guidelines without regard to a Student’s needs. I also find that this is a concession by the District that it failed to properly consider the evaluative information before it as the witness effectively testified that no matter the level of demonstrated need for ABA instruction the District would have ignored it. I find that this is a failure to provide a FAPE as a matter of law, and is also contrary to SRO Appeal no. 17-090, which is directly applicable hereto and which stated that:

“where the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).17 If the evaluative materials before the CSE recommend a particular methodology, there no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implanting the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).” Appeal no. 17-09, at page 18.

As there is no dispute that there were no evaluative materials available to the IEP team contraindicating the need for ABA instruction, which need was clearly laid out in all of the other information available to the IEP team, and as I find that overall the IEP team pre-determined its recommendations for the 2021-2022 school year without regard to the Student’s needs, and as I find that the recommendations in the 2021-2022 IEP ultimately failed to address to the Student’s needs, I find that the IEP for the 2021-2022 school year was inadequate and that as a result the District failed to meet its burden that it provided or offered a FAPE to this Student for the 2021-2022 school year.

I find that the Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parent has the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" (Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether Parent' 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, Parent 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 handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The District presented no evidence, or argument, to challenge the Parents’ contention that [Redacted] is an appropriate program and placement for the Student. The Parents presented detailed and comprehensive testimony and submitted substantial documentary evidence in support of their position that the [Redacted] placement was appropriate, that it provides a unique and specialized program that is individualized to meet the Student’s needs, and that the Student made educational progress. Exs. E, F, H, I, K, L, N, O, and Tr. 104-117, and 118-126. In the District’s closing argument no mention was made of the appropriates of the [Redacted] placement, and in fact the record is clear that the District made no effort whatsoever to conduct assessments to either validate or contradict [Redacted]’s reports, recommendations and conclusions.

I find that 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 District 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, were open to considering an appropriate District program and placement, voiced their concerns about the Student’s needs and that the District ignored their concerns, and that they timely notified the District about their disagreement with the District’s program and placement and of their intention to unilaterally to place the Student at [Redacted]. Exs. A, B, Tr. 118-126. The Parents also established that the District has already paid to [Redacted] $96,351.85, of the total $129,000.00 tuition costs for the 2021-2022 school year pursuant to pendency. Exs. G, J.

Consequently I find that equitable factors support the Parents’ claim for tuition reimbursement/payment for the 2021-2022 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 payment/reimbursement for the cost of the Student’s 2021-2022 [Redacted] placement.

Based on the foregoing, I find that:

• • The District failed to provide or offer a FAPE for this Student for the 2021-2022 school year;
• • The Parents established that the [Redacted] Academy is appropriate for this Student for the 2021-2022 school year, and that the Student has made progress at [Redacted]; and
• • That equitable considerations support the Parents’ request for tuition reimbursement.

ORDER

Accordingly, it is hereby ORDERED that the New York City Department of Education is directed to find the full cost of the Student’s tuition for the 2021-2022 school year, and to thereby pay directly to [Redacted] the amount of $32,648.15, which represents the balance owed to [Redacted] for the Student’s attendance for the 2021-2022 school year, within 30 days of receipt of a detailed invoice from [Redacted].

Dated: May 27, 2022

______________________________

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parent:

[Redacted], Esq.

[Redacted], Parent

[Redacted], Witness

For the District:

[Redacted], Representative

[Redacted], Witness

[Redacted], Witness

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.

Footnotes

[1] It is undisputed that ABA is a methodology developed by REDACTED, a professor at UCLA, who studied and researched various methods of teaching children with autism in 1980s. See Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 846 n.2 [6th Cir. 2004]. ABA is described as an intensive one‐on‐one therapy that ‘involves breaking down activities into discrete tasks and rewarding a child’s accomplishments.’” See A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 528 (2d Cir. 2017); quoting R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 176 (2d Cir. 2012).

[2] It is undisputed that PROMPT is an acronym for Prompts for Restructuring Oral Muscular Phonetic Targets, and that it is a multidimensional approach to speech production disorders that has come to embrace not only the physical-sensory aspects of motor performance, but also its cognitive-linguistic and social-emotional aspects. Therapists begin by helping patients produce certain phonemes. A phoneme is the smallest increment of sound in speech. Each phoneme requires different muscle contractions/retractions and placement/movement of the jaw, lips, tongue, neck and chest to produce. All these things have to happen with the proper timing and sequence to produce one phoneme correctly. The therapist attempts to “teach” the patient’s muscles to produce a phoneme correctly by stimulating all of these through touch.” See (The Prompt Institute, https://www.promptinsitute.com/page/FamiliesWIP).