New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555552 - NYC: 211607

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parents

Record Close Date: April 2, 2022

Hearing Officer: Harriet Gewirtz, Esq.

On August 12, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on August 12, 2021.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a REDACTED student who is classified as a student with a disability. His classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at the REDACTED for the 2020-2021 school year. The Parents now seek tuition reimbursement for the cost of the REDACTED for the 2020-2021 school year placement. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2020-2021 year, and thus failed to offer him a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED placement is appropriate and that equitable factors support the tuition reimbursement claim.

The DOE asserts that it provided the Student with a FAPE, presented witnesses, evidence and a closing brief.

The Parents submitted presented witnesses, evidence and a closing brief.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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”) program and placement recommendations. The DOE did not appear at the hearing nor present any testimony or evidence to support a finding that it offered the Student a FAPE for the 2020-2021 school year. 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). There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.

• • The District Failed to Prove its Burden of Demonstrating that it Offered FAPE for the 2020-21 School Year In the instant matter, the district failed to satisfy the standards imposed by the United States Supreme Court for providing a “cogent and responsive explanation” for its decision to recommend a special class with a 15:1 staffing ratio for REDACTED. (see Endrew F., 137 S. Ct. at 1001). The testimony of the DOE’s sole witness, Ms. REDACTED REDACTED, never met the Student, has never observed the Student in a classroom, and who did not participate in the July 2020 IEP meeting (Ex. 15; Tr. 33-4, 35) and does not establish that the district satisfied the requirements for developing an IEP that is tailored to meet the individualized needs of the Student., a student with a disability; especially in light of the Student’s complex learning and psychological profile (Exs. C, I, J).

She testified that she has so many cases, and consults with so many people that it is difficult for her to remember the particulars of the Student’s IEP (Tr. 35). She stated that she did not look at the Student’s cognitive skills; nor did she review any standardized academic measures (Tr. 35). This significantly undermines Ms. REDACTED’s credibility and her knowledge of the Student’s needs. (See Application of a Student with a Disability, Appeal No. 21-091 – giving little weight to a witness who never met the student and who conducted a limited review of the student’s records).

The DOE did not contradict the weight of the evidence concerning the Student’s need for a highly specialized class in a specialized, residential school setting, the district has failed to articulate a cogent explanation for not providing a more supportive program to the Student. for the 2020-21 school year in light of the material that it purportedly reviewed (See Ex. 12, pgs. 1-2) See S.B. v. New York City Dep’t of Educ., 2017 WL 4326502 (E.D.N.Y. Sept. 28, 2017) (If there is a consensus as to a student’s needs from the parents’ witnesses and those who know the child best, the school district must point to evidence sufficient to counter the parents’ evidence). The conclusory reasoning outlined by the district’s witness is insufficient to support the recommendation for a special class with a 15:1 staffing ratio and related services in a community high school (REDACTED. v. New York City Dep't of Educ., 2016 WL 6902137 at *6 [E.D.N.Y. Nov. 22, 2016] [finding that the district “failed to explain” the appropriateness of the recommended placement “in the face of the objections raised by [the student’s] mother and… teacher”]; L.R. v. New York City Dep't of Educ., 193 F. Supp.3d 209 (E.D.N.Y. 2016) (a more detailed explanation of what justifies a placement—with specific reference to the student’s circumstances—should be provided to demonstrate that the IEP was “reasonably calculated” to provide benefits based on student’s unique needs as demonstrated through testimony of individuals who really know the student. quoting M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 238-39 [2d Cir. 2015]).

A Special Class (15:1) is Not Appropriate for the Student The DOE did not present any credible evidence to establish that the Student could have made progress in the recommended program, which does not bear a reasonable relation to the needs of the Student that are stated in the IEP (See Ex. 10). The district did not proffer evidence to establish whether any of the members of the review team have firsthand knowledge of the Student. The DOE relied upon the reports provided by REDACTED in formulating the IEP and recommending a placement and, notably, not one of those sources of information about the Student recommended placement in a special class with a 15:1 staffing ratio in a Community School (Exs. 2, 3, 4, 5, 6, 7, 8, 9, 10, 15). The DOE provided no evidence that the Student was capable of making educational progress in the recommended setting. The DOE also did not proffer any evidence explaining why one-to-one instruction and other individualized supports recommended in the REDACTED reports, which were written by professionals who have actually interacted with the Student - were not necessary for the Student to make progress.

Accordingly, the DOE’s failure to present an objective basis for its program determination results in a finding that there was insufficient grounds to substantiate the CSE’s conclusion that a special class with a 15:1 staffing ratio and related services in a community high school was sufficient for the Student. See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017) (reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error); S.B. v. New York City Department of Education, 2015 WL 3919116 (S.D.N.Y. June 25, 2015) (reliance upon testimony of one DOE representative, who never met student, over evidence by student’s teachers and therapists, “flies in the face of reason” and did not result in a well-reasoned decision); W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016) (placement offered by the DOE did not bear a reasonable relation to the needs of student where placement was based on the opinion of a DOE representative who had no firsthand knowledge of the student).

A Community High School is Not Appropriate for the Student The preponderance of evidence establishes that the Student needs a small, specialized school in order to make educational progress (Exs. 3, 4, 5, 6, 7, 8, 10; Exs. C, D, I, J; Tr. 65, 67, 74). The school size - and not only classroom size - is a critical part of the inquiry into the substantive sufficiency of an IEP program recommendation, especially given the Student’s identified needs. See D.M. v. City School District of the City of New York, 2016 WL 319859, 15 Civ. 1619 (S.D.N.Y. January 26, 2016). The IEP developed by the district notes that the Student “continued to need residential intervention to maintain a schedule and operate on time” (Ex. 10, pg. 6). Accordingly, the record here amply supports the parents’ claim that the IEP recommendation for placement in a community school was not reasonably calculated to enable the Student to receive educational benefits in light of his identified needs (Exs. 3, 4, 5, 6, 7, 8, 10; Exs. C, I, J; Tr. 65, 67, 74).

The DOE cites no evaluative material to support the CSE’s determination to place the Student. in a community school. The CSE’s analysis did not focus on the adequacy of the Student placement in a community school. The parents produced credible evidence of the Student’s need for a specialized school setting. No other material explicitly addresses the Student needs regarding school size.

The District Failed to Timely Evaluate the Student The DOE failed to properly respond to the allegations made by the parents regarding the substantive denial of a FAPE by virtue of the district’s failure to timely evaluate the Student (Ex. A). The IDEA requires that each student with a disability be reevaluated “at least once every 3 years” See 20 U.S.C. § 1414 (a)(2)(B)(ii). The Parents allege, and the DOE does not dispute, that more than three years elapsed between the most recent evaluation and the July 2020 IEP (Ex. A). The DOE’s failure to conduct a triennial evaluation of the Student resulted in the development of an IEP that is not sufficiently tailored to the Student special and evolving needs; which compromises the effectiveness of the IDEA’s protections as they pertain to REDACTED. See Brock ex rel. S.B. v. New York City Department of Education, 2015 WL 1516602 (S.D.N.Y. 3/31/15)- the failure to engage in mandatory triennial evaluation impeded the parents’ opportunity to meaningfully participate and deprived student of educational benefit because there was insufficient information which the CSE team could use to accurately assess child’s needs and develop an appropriate IEP.

The DOE has not, therefore, met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents 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 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 DOE challenged the Parents’ contention that the REDACTED placement was an appropriate program and placement for the Student. The Parents presented extensive affidavit testimony and submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate (Parent Exs D, F-J). The testimony of the Parents’ witnesses (Parent Exs I and J)(which was uncontroverted) and the Parents’ documentary evidence established that the REDACTED placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

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 DOE 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 and provided the DOE with appropriate and timely written notice (Parent B).

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2020-2021school 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 reimbursement for the cost of the Student’s 2020-2021 REDACTED placement.

The cost of the 2020-2021 REDACTED placement is $89,900.00 (Parent Ex. E).

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to reimburse the cost of the Student’s 2020-2021 school year placement at the REDACTED in a total amount not to exceed $89,900.00, to be paid within 45 days of proof of payment.

Dated: April 2, 2022 _____________________

Harriet Gewirtz

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 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.

DOCUMENTS ENTERED INTO THE RECORD

• • Parent Exhibits A Due Process Impartial Hearing Request 8/12/21 5 B Notice of Placement (10-Day Notice)

8/25/20

2

C Letter from Psychiatrist 3/8/17 1

D Letter from Neuropsychologist 2/4/21 2

E Enrollment Contract 6/16/20 2

F Academic Schedule/Attendance Record 12/18/20 1

G Academic Update Email 4/7/21 2

H Distance Learning Handbook 2020-2021 25

I Affidavit – REDACTED – REDACTED School 1/20/22 7

J Affidavit – REDACTED – Parent 1/31/22 8

• • DOE Exhibits
• 1 Social History Update 11/30/2017
• 2 2 Vocational Assessment 11/30/2017
• 3 3 Academic Progress Report 01/2020 7
• 4 Residential Progress Repor 01/2020 2
• 5 Remedial Language Report 01/2020 2
• 6 Academic Progress Report 2 06/2020 6
• 7 Residential Progress Report 2 06/2020 2
• 8 Remedial Language Report 2 06/2020 2
• 9 Notice of IEP Meeting 7/22/2020 3 10

IEP 07/28/2020 29 11 IEP Meeting Minutes 07/28/2020

2

12

Prior Written Notice

08/16/2020

3

13

School Location Letter

08/16/2020

2

14

SESIS Events Log

Various

5

15

REDACTED REDACTED Affidavit

01/05/2021

3