New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555021 - NYC: 211123

FINDINGS OF FACT

Case Number: 211123

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent Dates of Hearing: 01/25/2022

03/02/2022

04/05/2022

Record Close Date 04/29/2022

Hearing Officer: TINA MILLMAN Esq.

NAMESAND TITLES OFPERSONS WHO APPEARED ON 01/25/2022

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, DOE Representative

NAMESAND TITLES OFPERSONS WHO APPEARED ON 03/02/2022

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, DOE Representative

NAMES AND TITLESOF PERSONS WHO APPEARED ON 04/05/2022

For the Student:

REDACTED, Parent Attorney

REDACTED, Program Director at REDACTED

For the Department of Education:

REDACTED, DOE Representative

INTRODUCTION

On 12/22//2021, I was appointed as the Impartial Hearing Officer (“IHO”) by the Department of Education’s impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA),20U.S.C.§1415(f)and Article89 of the Education Law of the State of New York. The Parent filed the Due Process Complaint(DPC),dated 07/14/2021.(Ex. A)

Appended to the record are lists of persons in attendance and the documents received in evidence.

Hearings were subsequently held for on January25, 2022, March2, 2022,and April5, 2022.The Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE)forthe2020-2021 schoolyear.(ExA)

The Parent requests the following relief:

• • Scheduling an impartial hearing and issuing an order for the student with a finding that it was appropriate for the student to be enrolled for 2020-2021 school year in his parentally placed special education classroom at REDACTED; ordering the Department of Education to fund tuition, including costs for related services and any required paraprofessional assistance, prospectively for the private placement by the parents in such program, or reimburse such tuition or fund it retroactively, if applicable.
• • Such other and further relief as is appropriate.

DEPARTMENT OF EDUCATION POSITION

The DOE calls no witnesses and submits 6 documents into evidence.

The DOE maintains that REDACTED (“student” or “REDACTED..”) was offered a Free and Appropriate Public Education (“FAPE”) for the 2020-2021 school year. They maintain that the student who has a classification of “REDACTED” was provided a FAPE for the 2020-2021 school year. The District had an IEP meeting on June 11, 2020 where they created an IEP for the 2020-21 school year. The district recommended a REDACTED class in a District 75 program. In drafting the IEP the Team considered evaluative data and the Team was duly constituted.

The DOE maintains they met their burden for the student in creating an appropriate IEP with appropriate goals and an appropriate placement. It is for those reasons the DOE maintains the request for tuition funding for the REDACTED program for the 2020-2021 school year should be denied. (Tr. 12)

THEPARENT’S POSITION The Parent‘s attorney set forth allegations and relief sought in the DPC and at Hearing.(ExA) The Parents seek direct funding to the REDACTED (REDACTED) in the amount $29,700. (Ex B, O) The Parents submit 18 documents into evidence and in lieu of direct testimony affidavits are utilized of the Parent (Ex. R) and the School Program Director (Ex. Q) Both witnesses were available for cross examination however the DOE representative declined to cross examine either witness.

FINDING OF FACTS ANDDECISION

Purposes of the Individuals with Disabilities Education Act(IDEA)(20U.S.C.§§1400-1482)are(1)to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B];see generally Forest Grove v. T.A.,129 S. Ct. 2484,)2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits(Rowley,458 U.S.at206-07;H.C.v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't..of Educ.,694F.3d167,189- 90[2dCir.2012],cert.denied2013WL 1418840[U.S.June10,2013];M.H. v. New York City Dep't of Educ.,685 F.3d217,245[2dCir.2012];Cerrav. PawlingCent. Sch. Dist.,427F.3d186,192 [2dCir.2005])."'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'"(Walczakv. FloridaUnionFreeSch. Dist.,142 F.3d119,129[2dCir.1998] [quoting Rowley,458U.S.at 206];see T.P.v. MamaroneckUnionFreeSch. Dist.,554 F.3d247,253[2dCir.2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that"[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not"(R.E.,694F.3dat 190-91),the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H.,685 F.3dat 245;A.C. v. Bd.of Educ.,553F.3d165,172 [2dCir.2009];Grimv. Rhinebeck Cent. Sch. Dist., 346 F.3d377,381[2d Cir. 2003];Perricelliv. CarmelCent. Sch. Dist.,2007WL465211,at*10 [S.D.N.Y.Feb.9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did Not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate n the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H.,685F.3dat245;A.H.v. Dep't of Educ.,2010WL 3242234,at*2 [2dCir. Aug.16,2010];E.H.v. Bd.of Educ., 2008WL3930028,at*7[N.D.N.Y.Aug.21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs hat,in general,an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE(20U.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,458U.S.at203).However,the" IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP"(Walczak,142 F.3dat130 see Rowley,458U.S.at189).The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents"(Walczak,142F.3dat132[quoting Tucker v. Bay Shore Union FreeSch. Dist.,873F.2d563,567(2dCir.1989)][citations omitted];see Grim,346 F.3dat379).Additionally, school districts are not required to" maximize" the potential of students with disabilities (Rowley,458U.S.at 189,199;Grim,346F.3dat379; Walczak,142 F.3dat 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.3dat 130] [citations omitted]);see T.P.,554 F.3dat 254;P. v. Newington Bd. of Educ.,546 F.3d111, 118-19[2d Cir.2008];Perricelli,2007WL465211,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 CFR300.114[a][2][i],300.116[a][2];8 NYCRR200.1[cc],200.6[a][1];see Newington,546F.3d at114; Gagliardov. ArlingtonCent. Sch. Dist.,489 F.3d105,108[2dCir.2007];Walczak,142 F.3dat132; G.B. v. Tuxedo Union FreeSch. Dist.,751 F. Supp.2d 552,573-80[S.D.N.Y.2010],aff'd,2012WL 4946429[2dCir. Oct. 18,2012];E.G. v. City Sch. Dist.of New Rochelle,606 F.Supp.2d 384,388[S.D.N.Y.2009];Patskinv. Bd. of Educ.,583F.Supp.2d 422,428[W.D.N.Y.2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance(see34 CFR300.320[a][1];8 NYCRR200.4[d][2][i]; Tarlowe v. Dep't of Educ.,2008WL 2736027,at *6[S.D.N.Y.July3, 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(see34 CFR300.320[a][4];8 NYCRR200.4[d][2][v];see also Application of the Dep't of Educ., Appeal No. 07-018;Applicationof a Child with a Disability, Appeal No. 06-059;Applicationof the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability,AppealNo.02-014;Applicationof a Child with a Disability,AppealNo.01-095;Applicationof a Child Suspected of Having a Disability,AppealNo.93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student o attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his[or her]circumstances, just as advancement from grade to grade is appropriately ambitious or most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives"(EndrewF.,137S.Ct.at1000).

Aboard of education may be required to reimburse parents for their expenditures for private educational services obtained fora 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,510U.S.7 [1993];Sch. Comm. of Burlington v. Dep't of Educ.,471U.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( 471U.S.at370-71;see Gagliardo,489F.3d at 111;Cerra,427F.3dat192)."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,471U.S.at370-71;see20U.S.C.§ 1412[a][10][C][ii];34 CFR300.148).

The burden of proof is on the school district during 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 (Educ. Law§ 4404[1][c];seeR.E.,694 F.3dat 184-85).A private school placement must be "proper under the Act" (Carter,510U.S.at 12,15;Burlington,471U.S.at 370), i.e., the private school offered an educational program which met the student's special education needs(see Gagliardo,489 F.3dat112,115;Walczak,142F.3dat 129).A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement

(Carter,510U.S.at 14).The private school need not employ certified special education teachers or have its own IEP for the student(Carter,510U.S.at13- 14).Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate"(Gagliardo, 489F.3dat 112;seeM.S.v. Bd. Of Educ. of the City Sch. Dist. of Yonkers,231 F.3d96,104[2dCir.2000])."Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. Of Hyde Park,459F.3d356,364[2dCir.2006];see Rowley,458U.S. at 207).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (FrankG.,459 F.3dat364;see Gagliardo,489F.3dat115;Bergerv. MedinaCitySch. Dist.,348F.3d513,522[6th Cir.2003]["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1];8 NYCRR200.1[ww]; Hardison v. Bd.of Educ. of theOneontaCitySch. Dist.,773F.3d372,386[2d Cir.2014];C.L.v. ScarsdaleUnionFreeSch. Dist.,744F.3d826,836[2dCir.2014];Gagliardo,489 F.3dat 114-15; FrankG.,459F.3dat365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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 handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo,489F.3dat112,quotingFrankG.,459F.3dat 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant o fashioning relief under the IDEA(Burlington,471U.S.at 374; R.E.,694F.3dat185,194;M.C.v. VoluntownBd.of Educ.,226F.3d60,6 [2dCir.2000];see Carter,510U.S.at16

["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"];L.K. v. NewYork City Dep'tof Educ.,674 Fed. App'x100,101[2dCir. Jan.19, 2017]).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] [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];C.L.,744 F.3dat840 [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"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to the removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20U.S.C.§ 1412[a][10][C][iii][I];see34 CFR300.148[d][1]).This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a[FAPE]can be provided in the public schools"(Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision(Greenland,358 F.3dat 160;Ms.M. v. Portland Sch. Comm.,360F.3d267[1stCir.2004];Berger v.

MedinaCitySch. Dist.,348 F.3d513,523-24[6thCir.2003];Rafferty v. CranstonPublicSch. Comm.,315 F.3d21, 27[1stCir.2002]);seeFrankG.,459F.3dat376;Voluntown,226F.3dat68).

Prong I

Did the DOE offer of FAPE for the 2020-21 School Year?

The DOE offered 6 documents into evidence to support an offer of FAPE however called no witnesses to support their documents. The DOE representative makes a blanket statement the IEP dated 6/11/20 (Ex 4) was appropriate for the student containing appropriate goals and an appropriate placement. They assert the DOE met their burden and that the Parent is not entitled to the requested relief.

Without witness testimony to support the rationale for the recommendations made in the 6/11/20 IEP I do not find the DOE argument to be valid. IEP’s are subject to interpretation. Just submitting an IEP without an explanation as to why certain recommendations were made for a particular student does not satisfy the District’s burden of substantiating that a FAPE was offered.

I do not find that a FAPE was offered to the student for the 2020-2021 school year.

Prong II

Was REDACTED an appropriate Placement for the 20-21 School Year?

The DOE never verbally challenges the appropriateness of the unilateral placement. The issue is have the parents supported their burden of providing evidence that REDACTED was an appropriate placement for the student?

After reviewing all evidence, I find REDACTED was an appropriate placement. In lieu of direct testimony the Parents attorney utilizes affidavits of the Parent and the School Program Director. (Ex Q, R) Both were available for cross examination however the DOE representative declined to cross examine either witness. In addition to affidavits, other documents such as REDACTED reports are submitted as well as a teachers report. (Ex E, H, M)

REDACTED Program Director at REDACTED notes in her comprehensive affidavit (Ex. Q) that in her belief the student would not have made progress at the District 75 program recommended by the DOE as the building would be too large and overwhelming for REDACTED in light of REDACTED disabilities. She notes the student is highly distractible and that at the REDACTED program REDACTED is under constant supervision so they are able to keep REDACTED focused. She states that for April –June 2020 the student attended the REDACTED program and was placed in a REDACTED class. She had an opportunity to see the student and observe REDACTED class on almost a daily basis as well as regularly speaking with REDACTED teachers.

The cost of the students’ tuition including related services for the 3 months was $29,700. The school program runs M-Th 9 am- 4pm, Friday 9 am – 12pm and Sunday 10 am-2pm. With the exception of a 20-minute period for REDACTED the program provides a secular general education. Ms. REDACTED states that the student was provided with all the related services mandated and in her opinion despite REDACTED only attending from April – June of 2020 REDACTED made a great deal of progress both academically and behaviorally. REDACTED successfully reduced REDACTED tendencies to use curse words and use aggression when upset. REDACTED increased the time REDACTED was able to focus on a task and was more consistent in REDACTED toileting. Ms. REDACTED describes progress the student made in reading, math, writing and language skills. She details improvement in the students’ life skills in that REDACTED was independently toileting without accidents more regularly as well as able to work with peers in pairs or groups.

She concludes that in her opinion the REDACTED program was an appropriate placement for the student academically, behaviorally and socially for the aforementioned reasons. The DOE Representative did not wish to cross examine the affiant.

An affidavit of the Parent REDACTED was entered and utilized in lieu of direct testimony. (Ex R) Mr. REDACTED states that for the start of 2020-2021 school year the student attended a NYC REDACTED program that was inappropriate for REDACTED. The Parent notes the student regressed academically, behaviorally and I REDACTED life skills.

Behaviorally REDACTED emotional outbursts increased, academically REDACTED was not picking up the lesson and REDACTED was not toilet trained. It got to the point the Assistant Principal REDACTED school suggested they look for another school for the student. He and his wife found the REDACTED school and they are able to address the students’ needs. He states that he and his wife signed an enrollment contract for the remainder of the 2020-2021 school year in the amount of

$29,700. (Ex B). The DOE representative declined to cross-examine the affiant.

Based upon the credible testimony of all witnesses and the documents submitted into evidence I find REDACTED served as anappropriateplacementandprogramtotheStudentforthe2020-21schoolyear.

Prong III- Are their equitable considerations that would reduce or bar the relief requested by the Parents?

The Parent has not evidenced in any way to have frustrated any attempt by the DOE to offer the Student a FAPE for the20-21school year nor has the DOE raised any equitable challenges. Based upon the aforementioned I find the equities favor the Parents.

Tuition Funding

The cost of the students’ tuition inclusive of related services from April-June of 2021 is

$29,700 of which the school has not received payment. The Daily Schedule (Ex J) and the affidavit of the school Program Director (Ex. Q) show about 5% of the program to be religious in nature. I find that the DOE should fund the cost of the students’ tuition at REDACTED less $1485 or an amount not to exceed $28,215.

ORDER

• • Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 school year.
• • REDACTED serves as an appropriate placement for the Student for the 2020-21 school year.
• • Upon proof of the student’s attendance the DOE, shall provide direct payment to REDACTED in an amount not to exceed $28,215 which represents the students’ tuition of $29,700 inclusive of related services for April- June of 2021less the amount of $1485 which represents the religious portion of the program.

DATED: April 29, 2022

IHO Tina Millman Impartial Hearing Officer

PLEASE TAKE NOTICE

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. The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

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.

DOCUMENTATIONENTERED

PARENT

REDACTED

DOE

REDACTED