New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 564019 – NYC: 219649

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED]

Date of Hearing: 4/27/22

5/26/22

Record Close: March 31, 2023

Hearing Officer: ANNETTE HICKS GILL, ESQ.

Date of Decision: April 14, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

May 26, 2022 *

For the Student:

[REDACTED]., Attorney

[REDACTED], Parent Student

[REDACTED], Assistant Principal

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 19, 2022 *

For the Student:

[REDACTED] ESQ., Attorney

[REDACTED], Assistant Principal

For the Department of Education:

[REDACTED], District Representative

* All appearances were by video conference.

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). [REDACTED] is an [REDACTED]-year-old student whose parent [REDACTED] brought the instant hearing, arguing that the DOE had failed to provide her child with a free appropriate public education (FAPE) for the 2021-2022 school year.

The hearing convened for a hearing on April 27, 2022, and reconvened on May 26, 2022. A status conference was then held on July 19, 2022 to discuss closing briefs. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) dated October 15, 2021, included multiple claims that the DOE had failed to provide the student an appropriate educational program and placement for the 2021-2022 school year, requesting placement of the student in that school year at [REDACTED] Academy. The parent contends that the [REDACTED] provides programming designed to address each student’s unique needs with intensive, individually designed language and behavioral services and multimodal academic instruction at the student’s level of capacity. Ex. A.

On April 27, 2022, the district’s attorney stated that the district would not be putting on a case that demonstrated that the DOE had provided a FAPE to the student. In regard to the other prongs of a Burlington-Carter analysis, he stated that the district would be requiring the parent to meet its burden under prong two, said did not see an issue yet regarding equities under prong three.

FINDINGS OF FACT

The Student is an [REDACTED]-year-old child who is diagnosed with autism and classified by the DOE as a student with Autism (P exhibits. C-1, V ¶7). He is functionally nonverbal and communicates using an AAC device as well as by waiving and using verbal approximations (P exhibits V ¶6, W ¶36). He is a sensory seeking child with an oral fixation, and tends to place inedible objects in his mouth (Id.). In addition, he has tooth and jaw malformations from extended pacifier use and needs oral/motor therapy to assist with feeding and the production of sound (P exhibit W ¶36). The child is not fully toilet trained and continues to need assistance with many activities of daily living (P exhibits C-5, W ¶37). He is very easily distracted, self-directed, and demonstrates maladaptive behaviors including elopement, crying, biting, pinching, and pulling at peers and adults when frustrated (P exhibits C, pps 1, 2; V ¶6; W ¶38). His academic skills range from the Kindergarten to first grade level, and he benefits from a full time ABA program which utilizes discrete trials for skill acquisition (P exhibits C pps 1, 4;V ¶6; W ¶36).

The student has been classified by the DOE as a student in need of special education under the IDEA since prekindergarten and received early intervention support as a toddler (P exhibit V ¶7). For school year 2014-2015, the DOE’s Committee on Preschool Special Education (“CPSE”) recommended an 8:1:2 prekindergarten program for him at a NY State-approved nonpublic school (P exhibit V ¶7). At his Kindergarten IEP meeting, the CSE recommended a 6:1:1, District^[75] program, over the objection of the Parent (P exhibit V ¶7). Not long afterwards, the CSE reconvened to recommend after school ABA support due to his challenging behaviors and skill deficits (Id.). The student attended P.S. 094@340, a District failure to progress, to no avail (P exhibit ¶11).

As such, the Parent located a placement offering ABA programming on her own and placed the student at [REDACTED] for school year 2018-2019 (P exhibit V ¶12). This placement was funded by the DOE pursuant to an impartial hearing order (Id.) The DOE continued to recommend a 6:1:1 District 75 program for [REDACTED] for school years 2019-2020 and 2020-2021, despite [REDACTED]’s long term failure to progress in just such a program (Ex. V ¶¶ 13-18). In response, the Parent re-enrolled the student at [REDACTED] for both school years, and the tuition was paid by the DOE pursuant to impartial hearing orders (P exhibit V ¶¶ 14, 18).

The Student has made steady progress within his small, structured classroom at [REDACTED], with one-to-one ABA programming supervised by an on-site BCBA (P exhibits V ¶¶ 21-23; W ¶¶ 40-42). The Parent continued to participate in IEP meetings with the DOE year after year in which she requested a specialized program offering one-to-one ABA programming for her child. Each year the Parent visited the recommended District 75 schools, but ultimately re-enrolled the student at [REDACTED] due to his need for a highly specialized ABA program offering discrete trial learning and BCBA supervision and training (Parent exhibit V ¶¶ 13-20).

With respect to the 12-month school year at issue, 2021-2022, the DOE once again recommended the same District 75, 6:1:1 program that has been recommended for the student year after year despite his failure to progress in such a program for his first three

75 6:1:1 program, noting that the student continued to need a full time ABA program which includes discrete trial training (Id.). The Parent received a placement offer on June 19, 2021, but was unable to reach anyone at the placement to schedule a tour or even to ask questions about programing (P exhibit V ¶20). On June 21, 2021, the Parent submitted a ten-day notice of her intent to seek tuition funding from the DOE for the Student’s 12-month program at [REDACTED] for the 2021-2022 school year (P exhibit B). The DOE did not respond to the Parent’s ten-day notice, and the Student. began attending [REDACTED] in July 2021 (P exhibits B, F, V ¶ 4).

The Parent signed an enrollment contract with [REDACTED] Academy on June 22, 2021, which included the Student’s 6-week summer educational program, as well as his 10-month educational program (P exhibit D). The enrollment contract included the cost of related services and a 1:1 paraprofessional for the entire 12 months (Id.) The total cost for the Student’s 12-month 2021-2022 school year at [REDACTED] was $134,395.00—$22,095.00 for the summer of 2021 and $112,300 for the 10-month portion of the school year (P exhibits D, E). The entire balance remains outstanding (P exhibits E, V ¶25, W ¶61). The Parent seeks direct payment for the total tuition amount (P exhibit’s A, V ¶26).

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, 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 US 7 (1993). ISSUE 1 - Appropriateness of School District Program

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

There was no defense for prong I in this case, as such, the District did not establish that it provided the Student with a FAPE. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for [REDACTED]. 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 the [REDACTED] offered an educational program designed to meet [REDACTED]’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 ISSUE 3 – Equities The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).

Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, there was no objection form the district based on equities, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for [REDACTED]’s tuition at [REDACTED]. Direct payment.

The Parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

In this case, the DOE offered no evidence and elicited no testimony to weigh on any equitable factors in its favor or against the Parent. As discussed above, the Parent fully participated in the CSE meetings (P exhibit V ¶¶ 5, 19), contacted the recommended public school and/or toured the placement when a placement was offered (P exhibit V ¶¶ 14, 17, 20), and filed a timely ten-day notice seeking tuition funding in this case (P exhibits. A, B, Ex. V ¶ 4). The DOE did not respond to the Parent’s ten-day notice (Id.); moreover, the DOE presented no evidence of the Parent’s failure to cooperate at hearing (Tr. 28-32).

The Parent testified that she was unable to afford to pay the tuition outright because her only source of income is welfare benefits (P exhibit V ¶26). Nonetheless, she offered a tuition contract in evidence which indicates that she is contractually obligated to pay the tuition (P exhibit D). She also offered a welfare benefit statement in evidence (P exhibit T). The parent testified that she has not made any payments towards the tuition, thus the entire $134,395 tuition balance is outstanding (P exhibits V ¶25, W ¶61, See also P exhibits D, E). For these reasons, based on the totality of the evidence presented by the Parent at the impartial due process hearing in this case, and in the absence of any countervailing showing by the DOE, the DOE has failed meet its burden to demonstrate that equitable considerations do not support the Parent’s claim for direct payment/reimbursement of the Student’s tuition and expenses at [REDACTED] for the 2021-2022 school year.

ORDER

1. The DOE shall directly fund the Student’s tuition at the [REDACTED] for the 2021-2022 school year.

2. Payment under Paragraph 1 of this Order shall be reduced by any payment paid under the Pendency Order issued in this case.

IT IS SO ORDERED.

Dated: April 14, 2023

_Annette Hicks Gill

ANNETTE HICKS GILL

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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS *

None

PARENT EXHIBITS

EXHIBIT DESCRIPTION DATE # OF PAGES

A. Impartial Hearing Request and Pendency Form 10/15/21 14 pages

B. Ten Day Notice and Ten-Day Notice Receipt 6/21/21 12 pages

C. Individualized Education Program 5/7/21 35 pages

D. [REDACTED] Enrollment Contract 6/22/21 2 pages

E. [REDACTED] Tuition Affidavit 2/11/22 1 page

F. [REDACTED] Attendance 2 021-2022 1 page

G. [REDACTED] Class Schedule 2021-2022 1 page

H. [REDACTED] Summer Class Schedule Summer 2021 1 page

I. [REDACTED] Program Description Undated 2 pages

J. [REDACTED] End of Year Report Card 2020-2021 26 pages

K. [REDACTED] Progress Report 3/10/22 26 pages

L. [REDACTED] Progress Report 12/8/21 26 pages

M. [REDACTED] Academic Annual Review 4/23/21 4 pages

N. [REDACTED] Annual Review Notes 5/7/21 4 pages

O. [REDACTED] Behavior Intervention Plan 5/4/21 4 pages

P. [REDACTED] Functional Behavioral Assessment 5/4/21 5 pages

Q. [REDACTED] Occupational Therapy Annual Report 4/22/21 3 pages

R. [REDACTED] Physical Therapy Annual Report 4/23/21 4 pages

S. [REDACTED] Speech/Language Therapy Annual Report 3/5/21 4 pages

T. Parent Budget Letter 4/15/22 3 pages

Footnotes

[75] public school, from September 2015 through June 2018 (P exhibit V ¶8). He failed to progress during his three-year tenure at P.S. 094, and the Parent requested additional support on numerous occasions (P exhibit V ¶¶ 8-11). The Parent even provided the DOE with a private evaluation recommending an ABA program and documenting the child’s long term years of school age programming (P exhibits. B, V ¶19). The Parent, as well as two participants from [REDACTED], all disagreed with the DOE recommendation for a District a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). The Parent’s testimonial and documentary evidence presented in this case demonstrate that [REDACTED] provides the Student with a highly individualized program tailored to his specific needs which enables him to make progress appropriate in light of those needs and establish that the Parent’s placement of her child at [REDACTED] for the 2021-2022 school year was appropriate.