New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567312 - NYC: 222484

FINDINGS OF FACT AND DECISION

Case Number: 222484

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 5/18/22

6/2/22

7/14/22

8/9/22

Record Closed: 8/22/22

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 18, 2022 *

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2022 *

For the Student:

[REDACTED], Advocate

[REDACTED], Advocate

For the Department of Education:

[REDACTED]., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 14, 2022 *

For the Student:

[REDACTED], Advocate

[REDACTED], Program Director, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 9, 2022 *

For the Student:

[REDACTED], Advocate

[REDACTED], Program Director, [REDACTED]

[REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

Other

[REDACTED], DOE Legal Intern (observing)

* All appearances in this hearing were via videoconference or telephone.

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] ([REDACTED]) is a [REDACTED]-year-old student, whose parent ([REDACTED], or [REDACTED]) has brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] a free appropriate public education (FAPE) for the 2020-2021school year. Ex. A. The hearing convened on May 18, June 2, July 14, and August 9, 2022. Extensions were granted in accordance with regulations, resulting in a final compliance date of September 29, 2022.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) in this case stated that an IEP created for the child for the 2020-2021 school year failed to provide the student with a free appropriate public education (FAPE), citing various procedural and substantive failures. As relief, the parent requested funding and/or possible reimbursement for the child’s tuition and related services at the ([REDACTED] School, or [REDACTED]). Ex. A.

At hearing on May 18, 2022, the district representative was not prepared to make an opening statement. On the subsequent hearing date on June 2, 2022, a different district representative stated that the district was not presenting a case, and the district would rest.

At hearing on July 14, 2022, a third district representative stated that the district was saying that it offered a FAPE for the 2020-2021 school year, and offered documents into evidence. She declined to offer a position on the second or third prong of a Burlington-Carter analysis, asking to reserve decision, and at the subsequent hearing date on August 9, 2022, she stated that the IHO had evidence from both parties and the district deferred to the IHO in the decision.

FINDINGS OF FACT

[REDACTED] is classified as having autism. [REDACTED], Program Director at the [REDACTED] School, stated he acted like a typical child with autism, with a tendency to perseverate on topics of interest to him, specifically about transportation and emergency vehicles, knowing car models and specific markers, a fascination bordering on obsession. He had a sense of humor, but told jokes that were not necessarily used appropriately with peers. Transitions were difficult, and organizational skills were lacking. Tr. 47-96. [REDACTED] provided a brief description, noting strength in memory, but struggles academically. She stated that he used to play only side-by-side, never really interacting, but now has peers and is social. Tr. 113-127.

[REDACTED] testified that she participated in AN IEP meeting prior to the 2020-2021 school year, and also observed a placement that was recommended. She stated that it wasn’t appropriate, although she couldn’t remember the exact reason. Tr. 113-127.

Placement fat [REDACTED]. In the 2020-2021 school year, [REDACTED] attended [REDACTED]. [REDACTED] described [REDACTED] as a school for children and young adults with special needs, with a goal oriented environment focused on each student’s strengths to help them progress through individual plans, curriculum, and methodologies. The focus of the school is on academic, social, emotional, and life skills of each student. Tr. 47-96.

There were about 37 students in five classes in the school in the 2020-2021 school year. There was a total of eight students in [REDACTED]’s class. [REDACTED]’s teacher was [REDACTED], licensed and certified in special education. There were also two assistant teachers in the classroom and a paraprofessional for another student. Assistant teachers are not required to have bachelor’s degrees, but all have extensive experience with special needs population and receive guidance and training from the classroom teacher and from [REDACTED]. She stated that class size was an issue for [REDACTED], who was easily distracted and had a tendency to joke to at appropriate times. He had a hard rime focusing and interacting with peers. With smaller groups for learning, he was better able to focus on the tasks at hand. Tr. 47-96.

At the beginning of the school year, he was generally on a mid-second grade level in decoding and sight words; comprehension was higher than his reading level. Math skills were at a mid-first grade level, requiring consistent prompting and refocusing. Vocational or prevocational skills reflected the same levels, inability to interact appropriately, difficulty focusing, and perseverating. [REDACTED] was working on various life skills, including lunch related skills from serving to cleaning up, shopping lists, and hygiene related skills. Prevocational skills included computer-based skills, phone skills, and food-related skills. In reading and language arts work was on improving his decoding for greater phonic awareness and increase his confidence in reading, Math and daily math living skills were also done is a small group, focused on regrouping and teaching him the concept of subtraction, as well as money values and the analog clock. A behavior modification plan used to refrain from reacting to transportation sounds and complete a task within a given amount of time with minimal prompting. [REDACTED] also received speech, individual sessions outside the classroom and group sessions sometimes in the classroom, occupational therapy individually three times a week, and physical therapy, the latter in the gym. [REDACTED] identified the class schedule, confirming that the only religious activity in the day was [REDACTED] each morning for 30 minutes. Tr. 47-96; Exs. F, G.

[REDACTED] testified that there was only a week to 10 days of remote learning, “October/ November time” in the 2020-2021 school year; the rest of the year completely in person. Students received a remote learning alternative and related services in which [REDACTED] participated. Tr. 47-96. [REDACTED] confirmed that he was remote for a time but the program opened up a lot faster than the public schools. She noted that although she had always been happy with the school, doing Covid she fell in love with it, as she sat in on the classes, noting how they treated the children, not like they were only special needs, but talking about current events and what was going on in the world. They made [REDACTED] answer question in the class when called on him, and in physical therapy, she would see him in the kitchen doing jumping jacks. She described the school as very motivated to help these kids maintain and not lose whatever they had gained. Tr. 113-127.

[REDACTED] described what she termed significant growth in interaction with peers in an appropriate manner, developing peer relationships and making real friends. She stated that it was easier to refocus him and he didn’t need as much refocusing. Also his obsessive interests with transportation diminished, Tr. 47-96. Academically, he mastered the second grade Dolch sight word list, and his confidence dealing with multisyllabic words improved. Listening comprehension also increased. In math, he was adding with regrouping independently, and mastered the concept of subtraction. He learned the value of coins and was able to tell time to one hour. He was also better able to follow two [REDACTED] directions, and better able to brush his teeth and hair. Tr. 47-96. [REDACTED] testified that she believes that provided [REDACTED] with appropriate special education in the 2020-2021 school year. She stated that he has made constant tremendous progress, but noting her main goal was for him to keep making progress every day. Tr. 113-127.

Contract. The tuition contract for [REDACTED]’s attendance at [REDACTED] in 2020-2021 provided a total fee of $62,000 for a 12-month program, along with an additional $12,650 for related services of speech, occupational therapy, and physical therapy. Exs O, P. [REDACTED] confirmed that she signed the contract with the [REDACTED] program, obliging her to pay full tuition. She stated that her husband takes care of payment, and they were waiting for reimbursement from prior school years in order to pay. She confirmed that she was requesting reimbursement of the tuition. Tr. 113-127.

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

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (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 Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 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 (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden. Despite conflicting positions taken by successive district representatives, there was no argument produced that the district had provided a FAPE other than the simple statement by one representative, without any reference to evidence. There were no witnesses offered into evidence, and there was no examination of parent witnesses concerning the district’s program or placement recommendation. Under the circumstances, I find the district failed to provide FAPE to [REDACTED].

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought 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 [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 a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED]. I credit [REDACTED]’s description of the program for [REDACTED] at [REDACTED], noting the small class size as an issue that offered better learning for [REDACTED] who was better able to focus in small groups. I also note the use of behavior modification plan, and the resulting decrease in perseveration about transportation. Of particular note was growth in appropriate and positive peer interaction, which allowed for less need for refocusing. In the academic realm, there was progress in sight words, multisyllabic words, and listening comprehension, as well as in basic math tasks and concepts, and the ability to follow two step directions.

Finally, I also note that the district representative’s failure to offer any position concerning the appropriateness of the placement, deferring to the IHO.

For the reasons noted above, I find that [REDACTED] provided a program for [REDACTED] designed to meet his special education needs. Charges for the school’s services to be adjusted, as noted further below.

ISSUE 3 - Equitable Considerations 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).

In this case, there was no evidence that the parent did anything but cooperate with the DOE at all times. As noted, the district representative declined to offer any position on equities. Under the circumstances, there is no evidence to warrant any denial of an award.

The portion of the child’s day devoted to religious activity suggested a minor adjustment to the award, requiring reference to the contract and to the student’s schedule. The schedule indicates 35 hours weekly, with [REDACTED] totaling 3 hours devoted to religious activities. I have calculated a reduction in the tuition charge of $62,000 by 8.6 percent, for a total of $56,668. There is no justification for a reduction in the award for the separate charges for related services, by definition not religious. Payment for related services will be subject to proof of service delivery based on the rates noted in the contract breakdown. Exs. F, O, P.

[See next page for Order]

ORDER

• • The DOE shall fund [REDACTED]’s enrollment for educational services at [REDACTED], at a rate not to exceed $56,668 for the 2020-2021 school year.
• • The DOE shall fund related services provided to [REDACTED] at [REDACTED] during the 2020-2021 school year at the following rates, including the period when school was shut down due to the pandemic, for a total not to exceed the specific total noted per service and a grand total not to exceed $12,650, upon submission of proof of service delivery at the noted frequency:
• • speech 1x30x46 weeks 1:1 at $100 per hour; for a total not to exceed $2,300,
• • speech 2x30x46 weeks 3:1 at $50 per hour; for a total not to exceed $2,300,
• • occupational therapy 3x30x46 weeks 1:1 at $100 per hour, for a total not to exceed $6,900, and
• • physical therapy 1x30x46 weeks 3:1 at $50 per hour; for a total not to exceed $1,150.

IT IS SO ORDERED.

Dated: August 31, 2022

_____________________________

NANCY M. LEDERMAN

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

1 Meeting notice, 4/15/20, 3 pages

2 IEP, 5/7/20, 26 pages

3 PWN, 6/2/20, 6 pages

PARENT EXHIBITS

A Impartial hearing request, 12/7/21, 4 pages

B Program description, undated, 2 pages

C Ten-day notice, 6/18/20, 2 pages

D Biannual student evaluation, July 2020, 8 pages

E Biannual student evaluation, June 2021, 8 pages

F Class schedule, 2020-2021, 1 page

G Behavior modification plan, 2020-2021, 1 page

H Classroom routines and expected behavior, 2020-2021, 2 pages

I [REDACTED]'s sensory diet 2020-2021, 1 page

J Physical therapy report 2021, April 2021, 2 pages

K Teacher's report, April 2021, 2 pages

L Occupational therapy report, April 2021, 2 pages

M Speech-language report, April 2021, 3 pages

N Goals and objectives 2020-/2021, 6 pages

O Enrollment contract, 7/6/20, 1 page

P Related services costs 2020-2021, 1 page

Q Attendance record 2020-2021, undated, 1 page