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Special Education Law
DECISIONParent PrevailedIHO Case No. 216556

New York City Department of Education, Impartial Hearing Decision

October 17, 2022·Sebastian A. Weiss·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 569602 - NYC: 216556

FINDINGS OF FACT & DECISION

Case No.: 216556

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent(s)”)

Hearing Date(s): 5/17/2022, 6/15/2022

Record Close Date: 9/23/2022

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Representative”)

[REDACTED]

(“Parent or Father”)

[REDACTED]

(“Head of School”)

For the Department of Education:

[REDACTED]

(“District Representative”)

BACKGROUND AND PROCEDURAL HISTORY

On September 14, 2021, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and New York State Education Law. The relief sought by the DPC includes payment of tuition for the Student’s unilateral placement at the [REDACTED] School (“Unilateral Placement”) for the 2021-22 school year (“School Year”). (Ex. A).[1]

The undersigned Hearing Officer was appointed on November 16, 2021. A prehearing conference was conducted on January 14, 2022. The hearing on the merits took place on May 17 and June 15, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to: (a) appropriately evaluate the Student and his special education needs, (b) develop and implement a substantively and procedurally valid Individualized Education Plan (“IEP”) for the Student (c) offer the Student an appropriate placement, (d) employ appropriate IEP-development and placement procedures, and (e) violated the Parents’ procedural rights under the IDEA which resulted in their exclusion from the special education process. (Ex. A)

The Parents presented the following arguments:

With respect to prong I of the Burlington/Carter analysis, the District does not contest it denied the Student a FAPE by failing to provide the Student with an appropriate program and placement for the School Year. (P CB)

The Student requires placement in a small, specialized educational program, with 1:1 instruction enabling REDACTED to work on his significant language, attention, and self-regulation deficits, and appropriate Applied Behavior Analysis (“ABA”) interventions. (Id)

With respect to prong II of the Burlington/Carter analysis, the Student’s program at the Unilateral Placement for the School Year was appropriate and “reasonably calculated” to provide the Student with a meaningful educational benefit. (Id)

With respect to prong III of the Burlington/Carter analysis, the equities favor the Student and his parents. (Id) The District did not allege that the parents failed to cooperate, nor did it raise any points about the parent’s private placement having been predetermined.

The Parents timely shared reports with the District, attended the Student’s IEP meetings, and initiated a visit to the District’s proposed placement. The Enrollment Contract has a withdrawal clause that would have permitted the Parents to withdraw if the District were to provide an appropriate placement.

The Parents seek the following relief: (P CB 25)

  • • Reimbursement for Unilateral Placement tuition and costs;
  • • Reimbursement for the Student’s augmentative and alternative communication (“AAC”) device and Proloquo2go software;
  • • Public bus transportation to and from the Unilateral Placement.

The Parents presented twenty three (23) alphabetically listed documents into evidence. The Parents also presented the testimony of the Unilateral Placement Head of School and the Student’s Father.

DISTRICT CASE:

The District conceded FAPE and therefore did not present a Prong I case. (May 17 T 44; D CB) In its closing brief, the District noted the following issues:

  • • The Unilateral Placement is not an approved Non-Public School in the state of New York, and is ungraded;
  • • Representatives of the Unilateral Placement participated in the Assistive Technology Evaluation that was conducted by the District;
  • • The Parent has not included testimony in evidence or via affidavit or live testimony about the request for reimbursement of the iPad and software.
  • • There was testimony stating that the Student was using an AAC device at the Unilateral Placement. Further, the Head of School testified that devices, such as smart boards and chrome books and iPads are available for student use.

The District submitted four (4) documents into evidence and did not present any witnesses.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 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. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 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.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

FINDINGS OF FACT

At the beginning of the School Year, the Student was a five year old boy entering kindergarten. The Disability Classification indicated on the Student’s IEP is autism. (Ex. 2-1) The Student presents with significant delays in language development, social interactions, and interactive play skills. (Id; Ex. E)

For the prior school year of 2020-2021, the Student attended a public school for special needs. (Ex. A-1; June 17 T 122-3)

On March 6, 2021, an independent Neuropsychological Evaluation was conducted by a Clinical Neuropsychologist. (Ex. E) The Parents completed the Vineland Adaptive Behavior Scales, Third Edition, which indicates that the Student struggles across adaptive areas. In the areas of Communication, Daily Living Skills, and Socialization, the Student was assessed at the <1 percentile in comparison to same-aged peers. (Id)

The Neuropsychological Evaluation recommends the following:

  • • Placement in a full-time, small, supportive special education classroom within a small specialized school for students that can support his myriad of needs;
  • • Classes with a low student-to-teacher ratio and 1:1 direct instruction with ABA trained teachers as a paraprofessional would not be able to appropriately deliver these interventions and maintain instructional control. The classroom should provide 1:1 support utilizing a data-driven behavioral program for children on the autism spectrum that focuses on increasing functional communication and decrease of maladaptive behaviors;
  • • 12 months of services;
  • • A behavioral plan to increase the likelihood of positive behaviors (e.g., social interaction, compliance with commands, participation) and to decrease the likelihood of negative behaviors (e.g., avoidance, self-direction);
  • • Continued participation in speech-language therapy, occupational therapy, and physical therapy;
  • • A minimum of 10-15 hours/weekly of home ABA intervention and training are required in addition to school.

On May 5, 2021, the District issued a Notice of IEP Meeting to the Parents. (Ex. 1)

On May 21, 2021, the CSE convened and developed an IEP for the Student (“2021 IEP”), which recommended the following program for a twelve month school year: (Ex. 2-13,14)

  • • 8:1+1 special class for Math, 8 periods per week;
  • • 8:1+1 special class for ELA, 8 periods per week;
  • • 8:1+1 special class for Social Studies, 4 periods per week;
  • • 8:1+1 special class for Sciences, 4 periods per week;
  • • Occupational Therapy, Individual, 3 times per week in 30 minute sessions;
  • • Physical Therapy, Individual, 2 times per week in 30 minute sessions;
  • • Speech-Language Therapy, Individual, 3 times per week in 30 minute sessions The Placement Recommendation set forth in the 2021 IEP is NYC DOE Specialized School. (Ex. 2-18) The 2021 IEP does not recommend an assistive technology device and/or service. (Ex. 2-6)

On May 28, 2021, the District issued a Prior Written Notice to the Parents. (Ex. 3)

On June 15, 2021, the District issued a School Location Letter to the Parents indicating the name and address of a public school located in Brooklyn (“District Placement”). (Ex. 4)

On July 21, 2021, the Parents entered into an Enrollment Contract for the School Year with the Unilateral Placement which indicates a tuition amount of $144,500. (Ex. H)

The Unilateral Placement Program Description states that it offers 1:1 support, in a group setting, as well as classroom ratios of 6:3 and 8:4. (Ex. G) Group sizes vary, with most groups ranging from 6-8 students. (Id) Every classroom team is a co-leading model, one NYS certified special education teacher and one lead behavior therapist. The lead behavior therapists are professionals that are working toward licensure and board certification in ABA. (Id)

On August 16, 2021, the Parents issued a Ten Day Notice to the District. (Ex. B, C)

On November 4, 2021, the District conducted an Assistive Technology Evaluation (“AT Evaluation”), which recommends that the Student receive a dynamic display speech generating device such as an iPad with Proloquo2go software to facilitate his access to his academic curriculum throughout the academic day, across all settings. (Ex. F)

On November 30, 2021, the District issued a Notification of Settlement with respect to the DPC (Ex. D)

During the School Year, the Student attended the Unilateral Placement in person. (May 17 T 62; Ex. W-6)

A tuition affidavit from the Unilateral Placement dated April 27, 2022 indicates amounts paid by the Parents as well as a balance owed. (Ex. J)

WITNESS TESTIMONY

Head of School The Parent presented the testimony of the Unilateral Placement Head of School by affidavit at the hearing. (May 17 T; Ex. W) The affidavit includes the following statements:

The Head of School is the Founder and Executive Director of the Unilateral Placement and has a master’s degree in Early Childhood Education and a Certificate of Advanced Study in Autism Spectrum Disorders. (Ex. W-1)

The Unilateral Placement is a private school operating with the consent of the New York State Department of Education to provide special education services. (Ex. W-2) There were 85 students enrolled at the Unilateral Placement for the School Year range in in age from five to 17 years old. (Id)

The Student has delays in receptive and expressive language, social-emotional development, academics, and adaptive behavior. (Id W-3,4) The Student requires assistance with daily living activities. (Id)

All classrooms at the Unilateral Placement are outfitted with interactive screens (Smartboard), and equipped with Chromebooks and iPads for student use. (Ex. W-5)

The Unilateral Placement developed a Behavior Intervention Plan for the Student. (Ex. W-4)

The Student requires an AAC device with Proloquo software. (W-5) In October 2021, the Unilateral Placement conducted a Sensory Profile Assessment of the Student and developed an Individualized Sensory Plan. (Id) In November 2021, the Head of School received an email stating that the Student has been recommended for an iPad. (Id)

The Student receives individual physical therapy twice a week for 30 minutes from an instructor with a doctorate in physical therapy. (Ex. W-6)

For the School Year, the Student was in a class with five peers, three boys and two girls. (W-6) All of the students in the class have a diagnosis of autism. (Id; May 17 T 92) The affidavit identifies the lead teacher, lead behavior therapist, classroom teaching assistant, behavior therapist and classroom supervisor. (Ex. W-6)

The Student requires a 1:1 teacher/provider to student ratio. (Id W-7)

The Unilateral Placement provides educational instruction designed to meet the Student’s unique needs and is an appropriate placement for the Student. (W-7,8)

The Student’s March 2022 Progress Report shows progress. (W-8)

The Unilateral Placement provides educational instruction designed to meet the Student’s unique needs. (W-7) The Student receives 1:1 instruction and individualized support. (Id)

The Head of School’s testimony at the hearing included the following:

The Unilateral Placement did not want to be an approved school that operates under the governance of the New York City Department of Education. (May 17 T 68) But the Unilateral Placement did want to have legal consent from the State of New York to provide services. (Id) The Unilateral Placement submitted an application to the New York State Education Department, asking for their consent to provide special education services, which was granted. (Id)

Based on the AT Evaluation, the Unilateral Placement envisioned that the Student would be given an iPad with Proloquo2Go software. (May 17 T 66)

In late January, the Unilateral Placement was notified by email that the Department of Education denied the request for the device because he was not in a public school setting. (Id 70, 72)

All of the students currently enrolled at the Unilateral Placement who have devices, came to the Unilateral Placement with those devices, or were awarded those devices through a similar evaluation process and/or impartial hearing process. (Id 71)

The Unilateral Placement ultimately purchased an iPad for the Student. (Id 76-7) The AT device is something that the Student should have come to the Unilateral Placement with, based on his preschool special education services. (Id 88) Assistive Technology Devices are available at the Unilateral Placement, and the Unilateral Placement has no problem providing the device for students. (Id 88-9)

Father The Parent presented the testimony of the Student’s Father by affidavit and at the hearing. A summary of the relevant testimony from this witness is as follows:

The affidavit describes the Student and his special education needs. (Ex. V-1,2) The Parents shared the Neuropsychological Evaluation with the District and participated in the 2021 IEP meeting. (Ex. V-1,2) The 2021 IEP was not appropriate. (Ex. V-2) The District did not follow the recommendations set forth in the Neuropsychological Evaluation. (Id)

He participated in a virtual tour of the District Placement and found the program to be inappropriate for the Student. (Id V-3) The Student has made progress at the Unilateral Placement. (Id V-3,4)

At the hearing, the Father further described the Student’s special education needs, the Parent’s participation in the 2021 IEP meeting and efforts to locate a unilateral placement, the Student’s progress at the Unilateral Placement, and tuition payments. (June 17 T)

DECISION

For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, primarily because the District did not present a case in this regard. By comparison, the Parent presented credible evidence indicating that the Student requires specialized instruction for students with autism.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The Parents have presented credible evidence and testimony regarding the appropriateness of the program at the Unilateral Placement. The Student’s educational program and related services at the Unilateral Placement program for the School Year are generally consistent with the recommendations set forth in the Neuropsychological Evaluation and the 2021 IEP. For example, the evidence indicates that the Unilateral Placement provides a small class setting and specialized instruction incorporating 1:1 instruction and ABA methodology. In addition, the District did not establish that the Unilateral Placement was not appropriate.

In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met its burden of proof regarding the appropriateness of the Unilateral Placement.

The third prong of the Burlington/Carter analysis considers the equities of the case. I find that the equities of the case support the Parents. For example, the Parent(s) participated in the 2021 IEP meeting, visited the District Placement and provided timely ten day notice to the District.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case support reimbursement for the tuition at the Unilateral Placement.

The Parents are also requesting that the District reimburse the Unilateral Placement for the cost of the Student’s iPad and accompanying software. An Assistive Technology Evaluation conducted in November 2021 recommended that the Student receive an assistive technology device. However, the District declined to provide the device because the Student was unilaterally placed.

I find that the Parent has not sufficiently established that the Unilateral Placement, which is not a party to this proceeding, is entitled to reimbursement from the District for the assistive technology device. There is no mention of assistive technology devices in the Enrollment Contract. In addition, the Head of School testified that assistive technology devices are available to students at the Unilateral Placement, and that all classrooms are outfitted with interactive screens (Smartboard), and equipped with Chromebooks and iPads for student use. Accordingly, the Parents’ request that the District reimburse the Unilateral Placement for the cost of the Student’s iPad and accompanying software is denied.

Finally, the Parents are requesting public bus transportation to and from the Unilateral Placement. The 2021 IEP recommends the Student for special transportation accommodations/services, including transportation from the closest safe curb location to school, because the Student has cognitive and adaptive deficits that impact travel.

However, the Parent has not provided evidence that the Student has been denied any of the special transportation services recommended in the IEP, or that the Student is otherwise entitled to public bus transportation as an alternative to the special transportation services recommended in the 2021 IEP. At the hearing, Parent Counsel stated that Parents wanted the bus transportation called for on the IEP to continue, and that the Parents were not seeking payment for transportation. Accordingly, the Parent’s request for public bus transportation is denied.

ORDER

Based upon the foregoing, it is hereby:

  • • ORDERED THAT, the Student was not provided a FAPE for the School Year; and
  • • ORDERED THAT, the District shall reimburse the Parents for tuition paid to the Unilateral Placement for the School Year pursuant to the Enrollment Contract.

SO ORDERED

DATED: October 17, 2022

/s/ Sebastian A. Weiss

Sebastian A. Weiss

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.

PARENT EVIDENCE: REDACTED

DISTRICT EVIDENCE: REDACTED

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.