New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 211401

NYSED Case ID: 555320

Student’s Name:

[REDACTED]

Date of Birth:

[REDACTED]

Hearing Requested by:

Parent

Date of Hearing:

4/26/2022

Record Close:

5/12/2022

Hearing Officer:

Jennifer Arditi, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

For the Department of Education:

NO APPEARANCES

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

This matter was brought by [REDACTED], mother of [REDACTED (“Ms.

[REDACTED]” or “Parent”), against the New York City Department of Education (“DOE” or “District”) alleging that the District failed to provide a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year.

The hearing convened on April 26, 2022. The matter was scheduled to commence at 10:30 a.m. The District Representative did not appear for the hearing at the scheduled time. At 10:40 a.m. the Impartial Hearing Officer (“IHO”) contacted the District Representative by e-mail inquiring if there were difficulties joining the proceeding. At 10:43 a.m. the District Representative responded that he had a “conflict of schedule.” At 10:48 a.m., the IHO sent another e-mail inquiring if the District would be “able to join in when done” to which the District Representative responded “yes” at 10:53a.m. A subsequent e-mail was sent by the IHO at 11:25 a.m. which advised that the hearing would commence at 11:35 a.m. The hearing commenced at 11:35 a.m. At 12:23 p.m. an e-mail was sent by the District Representative stating that he might be able to join at 1:00 p.m. (IHO Exhibit 1) By that time, the hearing had concluded. The District was then given an opportunity to submit a closing brief after receipt of the transcript. The District requested two weeks to submit the brief which was granted. At the conclusion of the two week period and, after inquiry by the IHO, the District advised that it would not be submitting a brief. The record closed on May 12, 2022.

• • PARENT’S POSITION The Parent’s Due Process Complaint Notice (“DPCN”) argued that the District had failed to provide the child, a Student with a Disability, with a Free Appropriate Public Education (“FAPE”) since Department of Education failed to convene a meeting to develop an Individualized Education Plan (“IEP”) for the 2021-2021 school year. The Parent further alleges that upon the opening of the 2021-2022 school year on July 1, 2021, the Student had no IEP in effect. On June 21, 2021, the Parent submitted a "ten-day notice" letter informing the Department of Education of her intention to unilaterally place Student at Gersh Academy for the 2021-2022 school year, effective July 7, 2021, and of her further intention to seek public funding for that placement through the impartial hearing process.

Specifically, the Parent claims that: 1) that the Department of Education failed to convene an annual review meeting to develop an Individualized Education program for the 2021-2022 school year; 2) that the Department of Education failed to offer and to provide a specific school placement for the 2021-2022 school year; 3) that the Department of Education failed to offer a placement in a small class setting, an instructional and behavior management methodology appropriate to meet the Student's needs, appropriate behavioral supports, including parent counseling and training, a Functional Behavioral Assessment and Behavior Intervention Plan, failed to consider the Student's needs in such areas as self-care, personal safety, use of assistive technology for communication, adaptive physical education and social skills, and did not develop a program of services and measurable annual goals; 4) that the Department of Education failed to adequately evaluate and assess the Student in all areas of need, including adaptive physical education, assistive technology, physical therapy and speech-language therapy and failed to conduct an updated Functional Behavioral Assessment and Behavior Intervention Plan or conduct a classroom evaluation; and 5) that the Department of Education failed to consider the need for transitional support services..

For the reasons detailed below, I find that the District did not provide Student with FAPE for the 2021-2022 school year.

DISTRICT’S POSITION The District offered no testimony, exhibits or a closing brief in support of its position

FINDINGS OF FACT

Student is a 14-year-old boy diagnosed with Autism Spectrum Disorder, Moderate Intellectual Disability and Global Developmental Delays. (Parent’s Exhibits R and QQ). He is essentially nonverbal with cognitive functioning skills in the extremely low range, academic skills in the very low range, poorly developed skills in coordination, visual perception and motor functioning (Parent Exhibit R).

Student was unilaterally placed at Gersh Academy for the 2019-2020 school year after the Parent disagreed with the DOE’s recommended placement in a District 75 program that did not provide Applied Behavioral Analysis (“ABA”) services. The Parent filed a DPC seeking tuition reimbursement for the 2019-2020. The District made the same recommendation for the 2020-2021 school year and the Parent again enrolled Student at [REDACTED] and filed a DPC seeking tuition reimbursement for the 2020-2021 school year. Those matters were consolidated and it was determined after a hearing that the DOE had failed to offer an appropriate program, that the program provided at Gersh Academy was appropriate, and that there were no equitable bars to public funding of the student's nonpublic school tuition. (Parent Exhibit RR)

As of the date of the hearing of this matter, the DOE had not convened a meeting to develop an Individualized Education Plan (“IEP”) for Student for the 2021-2021 school year.

CONCLUSIONS OF LAW

The purpose behind the Federal Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (FAPE). 20 U.S.C. §1400(d)(1)(A). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. §1401(9). See 20 U.S.C. §1414(d). The appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated, not in hindsight. Antonaccio v. Bd. of Educ., 281 F.Supp.2d 710, 724-25 (S.D.N.Y. 2003); Application of the Board of Education of Harrison CSD, Appeal No. 04-34 (SRO 2004). An “appropriate” program is one that is reasonably calculated to induce meaningful progress considering the child’s unique needs and the District must show that it offered instruction “specially designed” to meet a student’s unique needs, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017) Endrew F, 137 S. Ct. 988 (2017). An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998) supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak,at 129.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

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)).

In this case, the DOE has failed to sustain its burden of proof and it is undisputed that the DOE did not convene a meeting or formulate an IEP for this Student for the 2021-2022 school year. Therefore, I find that DOE failed to offer this Student FAPE for the 2021-2022 school year.

Request for Tuition Funding:

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].

Having not appeared at the hearing to offer any evidence or testimony, the DOE failed to meet its burden of proving that it offered the Student a FAPE for the 2021-2022 school year. The Parent has 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 placements provided “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 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. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The testimony by affidavit and documentary evidence supports the Parent’s contention that the placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit him to benefit from instruction. In addition, the evidence established that the Student did, in fact, make meaningful progress at the school. The Parent has 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 DOE has not put forth any evidence to establish that there are any equitable factors that would preclude or limit tuition reimbursement and to seek tuition funding for the cost of that placement. Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition reimbursement for the 2021-2022 school year. The Parent has therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement for the cost of the Student’s 2021-2022 placement.

The cost of the Gersh total tuition for the 2021-2022 school year is $134,395.00 (Parent Exhibit J).

Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)). The Parental Guarantee of Tuition is already in the Hearing Record (Parent Exhibit J) and need not be resubmitted prior to tuition reimbursement. The Parent also seeks transportation for the Student to and from Gersh Academy (door-to-door special education transportation). That request is granted as well, as transportation is a necessary component of the Student’s program.

Request for Evaluations:

The failure to adequately evaluate a student constitutes a FAPE deprivation. Without an adequate and comprehensive evaluation, it is not possible to develop and IEP that addresses all of a student’s needs. Therefore, the Parent’s request for the District to conduct complete assistive technology, speech-language therapy, physical therapy, and adaptive physical education evaluations is granted.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of the Student’s 2021-2022 school year placement at Gersh Academy, in a total amount not to exceed $134,395.00, by (a) reimbursing the Parent within thirty (30) days of the submission of a copy of proof of payment for any payments made; and (b) by issuing direct payment to the school within thirty (30) days of the submission of an affidavit setting forth the balance due; and it is further

ORDERED that the New York City Department of Education is directed to provide transportation for the Student to and from the Gersh Academy School during the 2021-2022 school year; and it is further

ORDERED that the New York City Department of Education shall convene a meeting to develop an Individualized Education Plan (“IEP”) for the 2022-2023 school year; and it is further

ORDERED that the New York City Department of Education is directed to conduct and complete assistive technology, speech-language therapy, physical therapy, and adaptive physical education evaluations of Student within 45 days of its receipt of this hearing officer's decision; and it is further

ORDERED that the reports the reports of such evaluations shall be provided to the parent at least five business days prior to any scheduled meeting of the Committee of Special Education.

IT IS SO ORDERED.

Dated: May 25, 2022,

______________________________

Jennifer Arditi

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings 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.

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• • EXHIBITS

IHO EXHIBITS

1 Email Correspondence from 4/26/22

PARENT EXHIBITS

A Hearing Request 07 30 2021 6

B Pendency Program Form 07 30 2021 1

C E-message – Filing of Hearing Request and Pendency Form 07 30 2021 1

D Acknowledgment of Receipt of Hearing Request 07 30 2021 2

E Due Process Response 09 08 2021 4

F Notice of End of Resolution Period 09 15 2021 2

G Notice of Appointment of Hearing Officer 12 06 2021 1

H Ten-Day Notice of Unilateral Placement for 2021-2022 06 21 2021 3

I Acknowledgment of Receipt of Ten-day Notice 06 21 2021 1

J Parental Guarantee Tuition, 2021-2022 06 25 2021 2

K Student’s Class Schedule, 2021-2022 07 01 2021 1

L Tuition Affidavit, 2021-2022 09 20 2021 1

M Student’s Attendance Record, 2021-2022 10 04 2021 1

N Individualized Education Program 05 13 2019 22

O Physical Therapy Screening 07 30 2019 1

P Functional Behavioral Assessment 10 08 2019 4

Q Behavior Intervention Plan 10 08 2019 5

R Neuropsychological Evaluation 10 11 2019 15

S Progress Report – Academic 11 05 2019 2

T Progress Report – Occupational Therapy 11 05 2019 2

U Progress Report – Speech-Language Therapy 11 05 2019 2

V Progress Report – Occupational Therapy 02 25 2020 4

W Annual Review – Speech-Language Therapy 03 04 2020 4

X Annual Review – Physical Therapy 03 05 2020 3

Y Annual Review – Academic 04 02 2020 4

Z Functional Behavioral Assessment 04 12 2020 4

AA Behavior Intervention Plan 04 12 2020 5

BB Annual Review – Physical Therapy 05 20 2020 4

CC Individualized Education Program 05 29 2020 24

DD Report Card 06 00 2020 3

EE Progress Report – Annual Goals 06 00 2020 8

FF Progress Report – Annual Goals 11 09 2020 27

GG Annual Review – Academic 01 22 2021 4

HH Annual Review – Speech-Language Therapy 03 21 2021 3

II Annual Review – Occupational Therapy 04 01 2021 4

JJ Annual Review – Physical Therapy 04 08 2021 5

KK Functional Behavioral Assessment 05 13 2021 3

LL Behavior Intervention Plan 05 13 2021 4

MM Progress Report 06 00 2021 27

NN Progress Report 08 00 2021 31

OO Pediatric Developmental Behavioral Assessment – Part 1 06 03 2019 9

PP Pediatric Developmental Behavioral Assessment – Part 2 06 04 2019 5

QQ Pediatric Developmental Behavioral Assessment – Part 3 06 11 2019 7

RR Findings of Fact and Decision (Case No. 194177) 06 22 2021 20

SS Program Description – Gersh Academy BASE Program undated 9

TT Affidavit in Lieu of Direct Testimony [REDACTED] 04 16 2022 4

UU Affidavit in Lieu of Direct Testimony – [REDACTED] 04 18 2022 7