New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case No.: 220095

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): 10/11/22, 11/2/22

Record Close Date: 12/1/22

Hearing Officer: Sebastian A. Weiss, Esq.

Findings of Fact and Decision

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Representative”)

[REDACTED]

(“Parent or Mother”)

[REDACTED]

(“Summer Program Social Worker”)

[REDACTED]

(“Unilateral Placement Principal”)

[REDACTED]

(“Unilateral Placement Educational Supervisor”)

For the Department of Education:

[REDACTED]

(“District Representative”)

Findings of Fact and Decision

BACKGROUND AND PROCEDURAL HISTORY

On October 21, 2021, the Parents filed a Due Process Complaint (“DPC”) against the District. The relief sought by the DPC includes payment of tuition for the Student’s unilateral placement in the [REDACTED] (“Summer Program”) and at the [REDACTED] (“Unilateral Placement”) for the twelve-month 2021-22 school year (“School Year”). (Ex. A).^[1]

The undersigned Hearing Officer was appointed to this case on October 26, 2021. The hearing on the merits was conducted on October 11 and November 2, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) by not providing an appropriate disability classification and educational program for the School Year. (Ex. A)

The Parents allege the following: (Oct. 11 T 74-80; Nov. 2 T 119-23)

As a result of the District's failure to provide the Student a FAPE for the School year, the Parents are seeking funding for the Student’s placement at the Summer Program for July and August of 2021, and at the Unilateral Placement for September 17, 2021 through June 2022, constituting the entirety of the 12-month School Year.

The Student has complex educational needs and has been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, combined type, and developmental coordination disorder. The Student has difficulty with behavioral regulation in a classroom setting, anxiety, social interactions, executive functioning, language processing, communication.

For the School Year, the District classified the Student with other health impairment and changed his program from a 12-month program to a 10-month program, and from a 12:1:1 program in a District 75 school to a 12:1:1 program in a large community school, over the Parents' objections.

On June 16th, 2021, the Parents gave notice to the District of its failure to provide the Student with an appropriate program and placement, and that they would unilaterally place him at the Summer Program, and then at the Unilateral Placement for the entirety of the 12-month School Year if the District did not fix their mistakes. In response, the District did not hold a new Individualized Education Program (“IEP”) meeting or recommend a new placement.

The District has the burden of persuasion to prove that they have provided a FAPE, and when the District has not, the State Review Office has found that all allegations stated in the Parent's complaint should be taken as true.

In terms of Prong I (of the Burlington Carter analysis, discussed below), the District stated that they are conceding Prong I and have presented no witnesses and no evidence. The hearing officer should find that the District failed to provide a FAPE to the Student for the 12-month School Year.

The Student’s placement at the Summer Program for the summer, and at the Unilateral Placement for the 10-month school year, is reasonably calculated and appropriate to meet the Student’s unique and individual needs.

These programs have provided specialized and individualized supports to meet the Student’s academic and social-emotional language needs. In terms of Prong III (of the Burlington Carter analysis), there's nothing that should bar that Parents' request for funding at the programs as the parents behaved fairly and equitably throughout the process.

The Parents presented twenty seven (27) alphabetically listed exhibits into evidence. The District did not object to the evidence. (Oct. 11 T 67; Nov. 2 T 110)

The Parents also presented the testimony of four witnesses – the Summer Program Social Worker, Unilateral Placement Principal, Unilateral Placement Educational Supervisor and the Student’s Mother.

DISTRICT CASE:

The District did not present a Prong I case and did not present any evidence or witnesses. (Oct. 11 T 66) The District did not cross-examine the Parent’s 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

For the School Year, the Student was in the [REDACTED] grade. The Student is described as happy and positive and also easily distracted or upset (Ex. E) The Student has been diagnosed with Attention-Deficit/Hyperactivity Disorder, Combined Type (“ADHD”) and Autism Spectrum Disorder (“ASD”), and [REDACTED]. (Ex. C) As a result, the Student has received supports throughout his academic career. (Ex. E-2) The Student has longstanding social struggles, including inattention, hyperactivity and impulsivity. (Id E-4) The Student is cognitively capable with average intellectual functioning and reading abilities, and weaknesses in language functioning and math. (Id)

From Kindergarten through the third grade, the Student was in enrolled in an Integrated Co-Taught class with speech and language therapy, occupational therapy and eventually a paraprofessional. (Id E-2)

The Student was classified as a student with Autism in the third grade. (Id) Due to struggles at school the Student subsequently transferred to the Unilateral Placement in 2019 where he repeated the third grade. (Id, Ex. X)

In 2018, a Neuropsychological Evaluation of the Student was conducted by the Learning and Development Center affiliated with the Summer Program (“2018 Neuropsychological Evaluation”). (Ex. C) Subsequent Neuropsychological Evaluations of the Student were conducted by the same provider in 2019 and 2021, with similar conclusions and recommendations (“2019 Neuropsychological Evaluation” and “2021 Neuropsychological Evaluation”). (Ex. D, E) The 2018, 2019 and 2020 Neuropsychological Evaluations may collectively be referred to as the “Neuropsychological Evaluations”).

The 2018 Neuropsychological Evaluation recommends “placement in a small, highly structured, special education classroom within a small and specialized school that serves students with language-based learning disabilities, ADHD, and high functioning autism.” (Ex. C)

The 2021 Neuropsychological Evaluation states that the Student continues to require placement in a full-time special education class within a specialized school setting with a high degree of structure and support, access to multidisciplinary interventions, placement in small class with a high teacher to student ration and frequent opportunities for one to one support. (Ex. E-12)

The 2021 Neuropsychological Evaluation also recommends that the Student receive speech language therapy, occupational therapy and specific academic supports, among other recommendations.

On March 1, 2021 the Parents entered into a Re-Enrollment Contract with the Unilateral Placement for the School Year with a tuition amount of $74,740. (Ex. L) A Tuition Affidavit from the Unilateral Placement dated September 8, 2022 indicates a total amount received of $31.583 and a balance due of $43,167. (Ex. V) The Student’s Mother testified that the Parents have since paid all of the tuition. (Nov. 2 T 125)

In April and May 2021, the Parents enrolled the Student at the Summer Program via email exchange. (Ex. F)

On June 6, 2021, the Parents issued a Notice of Unilateral Placement indicating their intention to place the Student in a twelve month program consisting of the Summer Program and the Unilateral Placement. (Ex. B)

The Summer Program is a four-week summer treatment program for children ages five through ten targeting behavioral, learning, and social skills in an environment with a high level of support. (Ex. G. AA) The Student previously attended the Summer Program in 2018 and 2019. (Ex. Z, AA)

There were 38 children and 45 staff at the Summer Program, and the Student was placed in a cluster of nine students and ten staff. (Ex. AA-3) Each day includes academic learning time as well as recreational activities. (Id, Ex. G)

The Summer Program Progress Report for the period July 6 – July 30, 2021 indicates that the Student demonstrated some improvement in behavioral goals. (Ex. H) The cost of the Summer Program was $7,000, which was paid by the Parents. (Ex. I, J)

The Unilateral Placement’s program description states: “The [Unilateral Placement] is a private K-12 special education school that prepares students for postsecondary opportunities. The mission of the school is to educate students in a meaningful learning environment so they can maximize their potential and become confident, successful citizens of their school and community. [The Unilateral Placement] serves children with language, learning, attention and social differences.” (Ex. K)

For the School Year there were 80 students and 36 faculty at the Unilateral Placement. (Ex. K) The Student was placed in a class with twelve Students, one head teacher and one assistant teacher. (Ex. X-3, Y-2) The Student was also placed in reading and math groups with five students and one teacher in each group (Ex. Y-2). Goals and objectives were developed for the Student. (Id)

In October 2021 the Unilateral Placement prepared a Plan for Therapeutic Services Fall 2021-2022 (“Therapeutic Services Plan”), which sets forth short and long term therapy goals for the Student. (Ex. N) The Therapeutic Services Plan states that Student is receiving the following services:

• • Speech and Language Therapy 1x per week for 30 minute sessions with a peer;
• • Occupational Therapy 1x per week for a 30 minute session, individually;
• • Counseling 1x per week for a 30 minute session with a peer;
• • In addition he participates in a weekly counseling directed group and a weekly occupational therapy directed group within the classroom.

The Student’s Class Schedule and Fifth Grade Curriculum Level Areas of Study at the Unilateral Placement for the School Year includes: Writing, Language Comprehension, Social Functioning, Science, Language Arts, Physical Education, Social Studies, Technology, Library, Music, Art, Study Skills, Handwriting, Health. (Ex. M, P)

The Student’s Attendance Report for the School Year indicates four absences. (Ex. U)

A Spring Report prepared by the Unilateral Placement states: [the Student’s] growth, confidence and achievements are evident through his academic and social/emotional progress” and “he has had the opportunity to advance over the course of the school year by utilizing classroom strategies, supports, and tools. [The Student] continues to require a variety of supports and interventions provided in a self-contained, 12:1:1, center-based, structured program to foster his continued academic and social emotional progress.” (Ex. S-9)

A Therapeutic Services Progress Report prepared by the Unilateral Placement towards the end of the School Year states: “[The Student] has shown some growth in many of his goal areas throughout this school year, though he continues to exhibit deficits requiring support in the areas of emotional self-regulation, attention and sustained concentration, and appropriately navigating social interactions. It is recommended that [the Student] continue to receive counseling services in order to address areas of concern to continue his progression of his social-emotional skill development and promote academic development.” (Ex. T-11)

PARENT WITNESS TESTIMONY

The Parents presented the testimony by affidavit of the Student’s Mother, Summer Program Social Worker, Unilateral Placement Principal, and Unilateral Placement Educational Supervisor.

The Summer Program Social Worker testified primarily regarding the appropriateness of Student’s program at the Summer Program. (Ex. AA)

The Unilateral Placement Principal and Unilateral Placement Educational Supervisor testified primarily regarding the appropriateness of Student’s program at the Unilateral Placement for the School Year. (Ex. X, Y)

The Student’s Mother testified primarily regarding the Student’s educational history as well as the appropriateness of the Summer Program and Unilateral Placement. (Ex. Z) The Student’s Mother further testified that she participated in an IEP meeting for the Student in May 2020 and expressed her disagreement with the District’s recommendation of a twelve month 12:1:1 program in a District 75 school. (Id)

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, as the District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student’s special education needs.

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 presented credible evidence and testimony regarding the appropriateness of the Summer Program and the Unilateral Placement. By comparison, the District did not seek to establish that the Summer Program and Unilateral Placement were not appropriate. The District did present a Prong II case and did not cross-examine the Parent’s witnesses.

I credit the evidence and witness testimony regarding the appropriateness of the Summer Program and Unilateral Placement.

Regarding the Summer Program, the Student previously attended the Summer Program and the Summer Program Social Worker and the Mother testified as to the appropriateness of the Summer Program.

Regarding the Unilateral Placement, the Student has attended the Unilateral Placement for several years. The evidence and testimony from three witnesses indicates that the Unilateral Placement is appropriate insofar as it provides the specialized support recommended by the Neuropsychological Evaluations, and the Student has made progress and/or benefited from the Unilateral Placement. During the School Year, the Unilateral Placement prepared a Therapeutic Services Plan as well as four progress reports for the Student.

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. The Mother participated in an IEP meeting for the School Year and expressed her disagreement with the District’s recommendations. In addition, the Parents provided a timely Ten Day Notice to the District for the School Year. The District did not contest the equities of the case at the hearing.

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 also support payment for the Student’s tuition at the Unilateral Placement for the School Year.

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 Summer Program;
• • ORDERED THAT, the District shall reimburse the Parents for tuition paid to the Unilateral Placement for the School Year pursuant to the Re-Enrollment Contract.

SO ORDERED

DATED: December 30, 2022

/s/ Sebastian A. Weiss, Esq.

Sebastian A. Weiss, Esq.

Impartial Hearing Officer

Findings of Fact and Decision

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.

Findings of Fact and Decision

PARENT EVIDENCE:

Exh. # Description Date Pages

• • Request for Impartial Hearing 10/21/21 9
• • Notice of Unilateral Placement 6/16/21 3
• • 2018 Neuropsychological Evaluation various dates 31
• • 2019 Neuropsychological Evaluation 8/28/19 6
• • 2021 Neuropsychological Evaluation 9/28/21 19
• • Summer Program Enrollment Agreement various dates 7
• • Summer Program Schedule 2021 1
• • Summer Program 2021 Progress Report various dates 7
• • and Program Description
• • Proof of Payment for Summer Program various dates 8
• • Summer Program Invoice 9/16/22 1
• • Unilateral Placement Program Description 2021-2022 4
• • 2021-2022 Re-Enrollment Contract 3/1/21 4
• • Unilateral Placement Schedule 2021-2022 2
• • Plan for Therapeutic Services 10/2021 5
• • Fall 2021-2022
• • Unilateral Placement Remote Learning Plan 2021-2022 3
• • Unilateral Placement Fifth Grade Curriculum 2021-2022 2
• • Unilateral Placement Fall Report 2021-2022 11/2021 9
• • Unilateral Placement Mid Year Report 2021-2022 2/2022 10
• • Unilateral Placement Spring Report 2021-2022 5/2022 11
• • Therapeutic Services Progress 5/2022 11
• • Report Spring 2021-2022
• • 2021-2022 Unilateral Placement Attendance 6/17/22 1
• • Unilateral Placement Tuition Affidavit 9/8/22 1
• • Unilateral Placement Proof of Payment various dates 9
• • Unilateral Placement Principal Affidavit 9/1/22 5
• • Educational Supervisor Affidavit 9/28/22 4
• • Mother Affidavit 9/17/22 9
• • Summer Program Social Worker Affidavit 10/25/22 5

DISTRICT EVIDENCE:

NONE.

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.