New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554919 - NYC: 211021

FINDINGS OF FACT AND DECISION

Case Number: 211021

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: January 7, 2022

February 4, 2022

April 6, 2022

June 3, 2022

Actual Record Close Date: June 13, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 7, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

February 4, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

April 6, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Principal, [REDACTED] [REDACTED] For the Department:

[REDACTED], District Representative

June 3, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

On December 22, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested the hearing on September 12, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 12-month school year and seeking funding for [REDACTED]’s tuition at the [REDACTED] [REDACTED] (“[REDACTED]”), a non-public special education school. Ex. C.

A pre-hearing conference was conducted on January 7, 2022. Counsel for [REDACTED]’s parent clarified the relief requested. Tr. 4-5. The hearing on the merits was conducted on February 4, April 6 and June 3, 2022. The Department did not present the testimony of any witnesses nor offer any documents in evidence. Tr. 31-32.

The parties made applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated January 7, February 12, April 6 and June 3, 2022.

The record closed on June 13, 2022, upon the hearing officer’s receipt and review of the transcript of the last day of hearing, and the Actual Record Close Date is June 13, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • [REDACTED] is now [REDACTED]-year-old young man whose disability, for the purposes of the IDEA, is classified as autism. Exs. A, C.
• • [REDACTED] has been diagnosed with an [REDACTED] and [REDACTED]. Exs. L at 4, M at 1,^[1] W at ⁋ 9.
• • [REDACTED] has attended [REDACTED] since 2006, when he was a [REDACTED] students. Ex. V at ⁋ 66.
• • [REDACTED] is a small private special education school primarily serving students diagnosed with autism Exs. K, V at ⁋⁋ 3-4.
• • [REDACTED]’s parents secured a psychological evaluation of [REDACTED] in March 2019. Ex. L. At the time, [REDACTED] was nonverbal, and his attention span was “very short.” Ex. L at 1. Even with the assistance of a teacher at his school, [REDACTED] was unable to perform any of the evaluation tasks. Ex. L at 1. On the WAIS-IV, he obtained a full scale IQ score of 40. Ex. L at 2. On the Vineland-3, completed by his teacher, [REDACTED] obtained low scores in all domains and a composite score of 20, which is in the low range. [REDACTED] could follow some simple verbal instructions, sometimes responded to his name, did not understand facial expressions, was not able to use the toilet on his own, nor able to wash his hands. Ex. L at 3.
• • [REDACTED]’s father emphasized [REDACTED]’s needs to learn ADL skills, such as toilet training and crossing the street safely, and behavioral basics, such as not grabbing food from other people. Tr. 48-49.
• • The small environment of [REDACTED] helps [REDACTED] focus and 1:1 teaching is what “works” for [REDACTED]. Tr. 49.
• • The CSE convened an IEP meeting for [REDACTED] on March 16, 2021 for the 2021-2022 school year. [REDACTED]’s father attended this meeting. Tr. 44; Ex. A, Ex. W at ⁋ 5. At the meeting, [REDACTED]’s father and [REDACTED] personnel informed the CSE that [REDACTED] needed a 1:1 program with ABA and DIR in order to make progress and that the DOE’s recommended 6:1:1 program did not have sufficient structure for [REDACTED]. CSE personnel responded that the 6:1:1 program was what they had to offer [REDACTED]. Tr. 44-46, 56.
• • After the IEP meeting, [REDACTED]’s father wrote to the CSE explaining (again) his concerns about the DOE’s proposed IEP program for [REDACTED]. Ex. A.
• • The DOE offered [REDACTED] a school placement at P.S. 77, but [REDACTED]’s father was not able to obtain much information about the school other than a short video. Tr. 47.
• • [REDACTED] enrolled 47 students during the 2021-2022 school year. [REDACTED] is placed in a class of six students. Tr. 51. Classes are organized by age and developmental levels. Tr. 52; Ex. V at ⁋ 58.
• • Each classroom is staffed by a teacher, 1:1 assistants and therapists such that there is at least a 1:1 student:adult ratio. Ex. V at ⁋ 43.
• • Academically, [REDACTED] is functioning at approximately a pre-[REDACTED] level. Tr. 53.
• • [REDACTED] utilizes ABA, DIR and TEACCH methodologies with its students, including [REDACTED]. Tr. 58; Ex. V at ⁋ 74..
• • [REDACTED]’ principal opined that school staff needs “every tool in your tool belt” to address the needs of a student like [REDACTED], who has a “complex profile.” Tr. 58-59. For example, [REDACTED] needs the structure of ABA, the “holistic social approach” of DIR and components of TEACCH “in terms of the independence skills.” Tr. 59; Ex. V at ⁋⁋ 7-16, 99 (including descriptions of each methodology).
• • [REDACTED] provides [REDACTED] with the related services of speech and occupational therapies. Tr. 53.
• • Speech therapy focusses on functional communication and is provided in individual and group sessions as well as push-in sessions provided in the classroom and the community. Ex. V at ⁋⁋ 24-26.
• • Occupational therapy is provided in the gym and classroom. Ex. V at ⁋⁋ 27-28. School staff also implement a sensory diet for [REDACTED] to promote sensory integration and [REDACTED]’s availability for learning. Ex. V at ⁋ 99.
• • [REDACTED]’s schedule at [REDACTED] includes ADL Skills, morning meeting, academics, food prep, recess, music therapy, lunch and snack, typing, literacy group, coffee delivery, OT, PROMPT, science, Floortime, speech therapy, dance and movement group, vocational (shopping), flower delivery and weekly wrap up. Ex. O.
• • School staff monitors [REDACTED]’s behaviors. Tr. 55. He has decreased his “dropping” to the ground behavior while walking and his grabbing of materials and food of others. Ex. V at ⁋ 100.
• • Vocational skills training is an important part of the school day at [REDACTED]. Students are engaged in ADL skills, community involvement and job opportunities. Ex. V at ⁋⁋ 22-23.
• • [REDACTED] is a successful participant in the school’s vocational programming, including a bread delivery service, food shopping, stocking shelves and working selling snacks in the building from a cart and travel training. Tr. 55; Ex. V at ⁋ 83.
• • [REDACTED] has made progress during the 2021-2022 school year, particularly in the area of vocational skills. He needs less adult support in order to complete tasks and has learned to use his AAC device during vocational activities, including to initiate communication with customers. Tr. 57-58 Ex. V at ⁋⁋ 79-81, 83-85.
• • During the 2021-2022 school year, [REDACTED] also made progress with respect to: focusing and attending during 1:1 and group sessions, pre-reading skills, use of his AAC device throughout the school day, following directions, tracing letters, social interactions, transitioning between activities, navigating the school building independently, walking independently during outdoor group walks, following routines, engaging with peers and staff, ADL skills, and fine and gross motor skills, balance, core strength and muscle tone. Exs. S, T, V at ⁋⁋ 82, 86-98.
• • [REDACTED]’s father has observed [REDACTED]’s progress this year: [REDACTED] can better communicate his needs and feelings, his behaviors have improved, and his activities of daily living, including his toileting, have improved. Ex. W at ⁋ 37.
• • [REDACTED]’s parents filed a ten-day notice letter on June 16, 2021, explaining their concerns about the DOE’s IEP for [REDACTED]. Ex. B.
• • [REDACTED]’s parents signed an enrollment contract for [REDACTED]’s attendance at [REDACTED] for the 2021-2022 12-month school year. The tuition is $129,000.00 for the period from July 5, 2021 through June 16, 2022, and [REDACTED]’s parents have not paid the tuition because, at this time, they cannot afford to do so. Exs. J at 6-8, P, W at ⁋⁋ 34-36.

Decision

A board of education may be required to pay for education 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. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to [REDACTED] for the 2021-2022 school year. A school district must “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., 137 S. Ct. at 1002. This did not happen in this case. Since the Department did not offer any testimony to explain how its IEP for [REDACTED] was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

The parent bears the burden of proof concerning the appropriateness of [REDACTED] for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at [REDACTED] addressed [REDACTED]'s identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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 handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provides [REDACTED] with an educational environment in which his constellation of identified and severe special education needs is addressed. First and foremost, [REDACTED] addresses [REDACTED]’s need for small classes and 1:1 teaching utilizing a variety of methodologies to address broad range of challenges. The record is clear as to the extent of the individualized special education, related services, supports and interventions that [REDACTED] personnel provide to [REDACTED]. See paragraphs 14 through 22 above.

[REDACTED] has made progress at [REDACTED] during the current 2021-2022 school year. See paragraphs 20 and 23 through 25 above. At [REDACTED], [REDACTED] has made progress across the range of his challenges, clearly demonstrating that [REDACTED] is an appropriate special education placement for him. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] is appropriate for [REDACTED] for the 2021-2022 12-month school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that [REDACTED]’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although [REDACTED]’s parent has not paid the [REDACTED] tuition, the debt for the tuition is very real. [REDACTED]’s parent is unable to pay the [REDACTED] total tuition up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. In addition, under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” SRO No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011). The [REDACTED] contract establishes [REDACTED]’s parent’s obligation to pay tuition for [REDACTED]’s attendance for the 2021-2022 school year. Equitable considerations favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parent prevails with respect to the third Burlington/Carter criterion.

Therefore, for all the above reasons, it is ORDERED that:

The Department of Education shall fund [REDACTED]’s placement at [REDACTED] [REDACTED] for the 2021-2022 12-month school year. The amount of funding shall not exceed $72,725.00 for the 2021-2022 12-month school year. The funding shall consist of direct payment to [REDACTED] [REDACTED].

Dated: June 24, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Parent’s Exhibits

Correspondence and documents relating to the filing of the hearing

• • 5/7/21 Letter from parent to [REDACTED] (4 pp.)
• • 6/16/21 Ten-day letter (4 pp.)
• • 7/12/21 Impartial hearing request (22 pp.)
• • 7/13/21 DOE acknowledgment of receiving the impartial hearing request (2 pp.)
• • 12/22/21 E-mail from the DOE advising of the appointment of a hearing officer (1 p.)

Documents pertaining to the student’s last agreed upon placement

• • 3/25/21 Findings of fact and decision for case no. 203236 (17 pp.)
• • 7/28/21 E-mail to [REDACTED], et. al. regarding the student’s placement during the pendency of the proceeding (3 pp.)
• • 7/28/21 E-mail from [REDACTED] regarding the student’s placement during the pendency of the proceeding (4 pp.)
• • 7/28/21 E-mail from the DOE with attached 7/28/21 DOE pendency form (3 pp.)
• • 8/3/21 E-mail to DOE with attached 7/28/21 pendency form, 8/3/21 attendance report, 8/3/21 tuition affidavit, and 2021-2022 enrollment agreement (9 pp.)
• • 8/31/20 [REDACTED] [REDACTED] web page (26 pp.)

Reports and evaluations

• • 3/14/19 Psychological evaluation (4 pp.)
• • 3/14/19 Social history (2 pp.)
• • 2021-2022 Weekly schedule (1 p.)
• • OMITTED
• • 6/21/21 Enrollment agreement for 2021-2022 (3 pp.)
• • 2019-2020 Progress report (12 pp.)
• • 2020-2021 Progress report (12 pp.)
• • 2021-2022 Progress report (9 pp.)
• • 3/9/21 Annual review package (16 pp.)

Remote learning material

• • Undated [REDACTED] [REDACTED] remote learning protocol (3 pp.)

Affidavits in lieu of direct testimony

• • 3/29/22 Affidavit of [REDACTED] [REDACTED] (22 pp.)
• • 3/28/22 Affidavit of [REDACTED] [REDACTED] (7 pp.)

Footnotes

[1] Exhibit M has redaction marks on the bottom right corner of each page. These redactions cover erroneous exhibit labels. Tr. 75.