New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 556692 - NYC: 212707

FINDINGS OF FACT AND DECISION

Case Number: 212707

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: September 17, 2021

October 19, 2021

November 15, 2021

December 13, 2021

January 12, 2022

February 10, 2022

March 10, 2022

April 7, 2022

May 11, 2022

June 14, 2022

July 13, 2022

August 10, 2022

September 7, 2022

October 13, 2022

November 8, 2022

Actual Record Close Date: December 15, 2022

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED September 17, 2021

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED October 19, 2021

For the Student:

REDACTED. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED November 15, 2021

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED December 13, 2021

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED January 12, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED February 10, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED March 10, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED April 7, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED May 11, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED June 14, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED July 13, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED August 10, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED September 7, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative, CSE REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED October 13, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED November 8, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

INTRODUCTION

On September 3, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about September 1, 2021. The DPC is carried under New York City (“NYC”) . The impartial hearing was held over a series of dates, concluding on November 9 2022 to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on December 15, 2022. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a student known to the NYC DOE since entering the CPSE in May 2017, classified as a “Pre-School Student with a Disability” (Exhibit B). He is diagnosed with Autism Spectrum Disorder (“Autism” or “ASD”), Mixed Receptive-Expressive Language Disorder, and Pragmatic Commination Disorder (Exhibits A, E, F and T @ 72). For the 2021/22 school year the DOE held an IEP meeting on May 26, 2021, classified REDACTED with “Autism”, recommended a part time ICT (Math and English Language Arts) class with related services and offered a placement at P.S. 215, a large community school (Exhibit A). The Parents voiced continued concerns with this recommendation because of REDACTED’s behavioral concerns, very poor social skills, high distractibility, anxiety, dysregulation, and difficulty when it comes to reading comprehension and math. The Parents had previously provided the DOE with a privately obtained neuropsychological evaluation dated May 31, 2018 (Exhibit E) which revealed that REDACTED requires a highly intensive and individualized program that can focus on his social-emotional, attentional, behavioral, sensory, and language development, requires the support of a SEIT to help him negotiate the social, attentional, and linguistic demands of his classroom and environment, and requires 1:1 instruction as needed and alongside the instruction provided in the classroom, and requires his SEIT to also engage with peers, communicate, and regulate effectively. The neuropsychological evaluation recommended REDACTED receive no less than 18 hours of 1:1 SEIT support and related services to help him develop his attention, regulatory, pragmatic and linguistic skills. The Parent alleged procedural violations and substantive inadequacy and claimed the recommended program amounted to a deprivation of FAPE for the 2021/22 school year. The Parents allege giving notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of their intent to place him for 2021/22 school year in a Special Education Program and seek funding (Exhibit D). The Parents allege the DOE failed to respond (Exhibit A and Q). As a remedy for the DOE’s failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks funding from the District for 18 hours of SEIT services per week, Occupational Therapy (3x30, 1:1) and Speech Language (2x30, 1:1) (Exhibit A, T @ 71).

In an effort to support their position, the parent submitted a documentary exhibit package consisting of seventeen pieces of evidence (Exhibits A-Q), which included the direct testimony via affidavit of REDACTED, licensed psychologist (Exhibit O), REDACTED, the student’s SEIT provider (Exhibit P) and REDACTED a/k/a REDACTED, the student’s mother (Exhibit Q).

At hearing, the DOE conceded Prong I (T @ 71), failed to present witnesses or documentary evidence, opted not to deliver either an opening or a closing statement (T @ 71) and did not proceed to cross-examine any of parent witnesses (T @ 76).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. 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][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. 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 R. and Dianne R. 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 R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, the DOE conceded Prong I and therefore no further analysis is required.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral program put in place for REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the 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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent put forth that REDACTED is capable of learning in a mainstream setting around typically developing peers but only with the support of a one-to-one SEIT instructor to help him navigate the social, attentional and linguistic demands of a classroom environment (Exhibit O and T @ 74). REDACTED, licensed psychologist in the state of New York who performed the neuropsychological evaluation of REDACTED, attested:

“I recommended a continuation of no less than 18 hours a week of 1:1 SEIT to support his social, linguistic, attention, regulatory, behavioral, and academic challenges (Ex. F-5). I also recommended a continuation of his speech and occupational therapies in school” (Exhibit O).

REDACTED, REDACTED’s SEIT provider, attested:

“For the 2021/22 school year, I provided REDACTED with a total of up to 18 hours of 1:1 SEIT services per week…….. I work with him in a 1:1 setting pushing-into the classroom and pulling him out of the classroom in certain circumstances. REDACTED has become much more efficient in following simple classroom rules and routines…..In terms of academics, REDACTED had shown tremendous progress during the 2021/22 school year due to the high intensity of his 1:1 special education instruction each week…..I believe REDACTED continues to require an extremely high level of 1:1 special education instruction throughout the school day. REDACTED requires 3-4 hours per day (15-18 hours per week) minimum of 1:1 special education teacher support so that he can navigate his classroom environment, participate alongside mainstream peers, engage in group activities, and manage his behaviors. REDACTED needs the consistency of 1:1 structure to constantly guide him and redirect him. Without this high level of support REDACTED would likely regress…” (Exhibit P).

REDACTED, REDACTED’s mother, attested:

“I believe that REDACTED’s Special Education Program is and has been appropriate for REDACTED for the 2021/22 school year, because he requires this high level of 1:1 special education teacher support during and throughout the day in order to make progress. If he did not have this support, REDACTED would be extremely disorganized, would but unable to follow teacher directions, would be unable to socialize with his peer, and, frankly, would not be able to engage in the academics the way we know he can. REDACTED is a bright kid, but without the 1:1 SEIT support, you would never be able to see his true abilities and strengths because they would be masked by the intense behavioral episodes, the rigidity, the lack of focus and the inability to communicate” (Exhibit Q).

Herein, I credit the evidence (Exhibits E-F, I, and M-Q) and testimony (Exhibits O, P and Q) submitted by Parent and find it establishes that the special education program put in place for the student by Parent, which consists of up to 18 hours of one-to-one SEIT per week and related services of Speech Therapy (2x30, 1:1) and Occupational Therapy (3x30, 1:1) per week was appropriate as it provided a program that was directly related to REDACTED’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program to offer the highly intensive and individualized program that can focus on REDACTED’s social-emotional, attention, behavioral, sensory, and language development.

Based upon the foregoing, I therefore find that the Special Education Program put in place for the student by Parents was an appropriate one for REDACTED for the 2021/22 school year. The record reflects the program provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress (Exhibit G, H-I, and M-Q). Based upon the foregoing, I find that the student made meaningful progress for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that the program was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits I-J).

Prong III:

Having found the program appropriate, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. REDACTED’s Parents timely put the DOE on notice of their intent to seek reimbursement.

I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the Special Education Program in place for the student was appropriate (3). that the program was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the program for the 2021/22 school year.

Based upon the foregoing,

ORDER

It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's special education program for the 2021/22 school year, consisting of up to 18 hours of SEIT services, 1:1, Speech Therapy (2x30, 1:1) and Occupational Therapy (3x30, 1:1). All payments shall be supported by the presentation of appropriate documentation.

Dated: December 19, 2022

Maria R. Dispenza

_________________________

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON November 8, 2022

Parent:

• • Request for Impartial Hearing, 9/1/21 -10pp
• • IEP, 02/20/18 -18pp
• • 20/21 Pendency Agreement, 10/23/20 -2pp
• • Notice of Unilateral Placement, 08/18/21 -4pp
• • 2018 Neuropsychological Evaluation, 04/12/18-04/26/18 -32pp
• • 2019 Neuropsychological Evaluation, 05/08/19 -12pp
• • February 2020 Progress Report, 02/15/20 -4pp
• • Speech Rate Letter, 08/25/21 -1pp
• • Speech Progress Report, 03/19/22 – 2pp
• • SEIT 8 Hour Rate Letter, 09/02/21 -1pp
• • Final SEIT Additional Hours Affidavit, 09/07/22 – 2pp
• • Invoices and Proof of Payment for Additional Hours Various Dates -17pp
• • February 2021 Progress Report, 02/09/21 -3pp
• • February 2022 Progress Report, 02/18/22 -3pp
• • Neuropsych Affidavit, 10/27/22 -11pp
• • SEIT Affidavit, 10/23/22 -6pp
• • Parent Affidavit, 10/27/22 -8pp