New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567656 - NYC: 222747

FINDINGS OF FACT AND DECISION

Case Number: 222747

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

7/12/22

7/15/22

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], District Representative

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

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 12, 2022 *

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 15, 2022 *

For the Student:

[REDACTED], Advocate

[REDACTED], Program Director, [REDACTED]

[REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

* 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 2021-2022 school year. Ex. A. The hearing convened on May 18, June 2, July 12, and July 15, 2022. Extensions were granted in accordance with regulations, resulting in a final compliance date of September 27, 2022.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) in this case stated that an IEP created for the child for the 2021-2022 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]). As relief, the parent requested funding and/or possible reimbursement for the child’s tuition at the [REDACTED] School, special transportation, and special education teacher services for generalization and behavior at home. Ex. A.

In a closing statement at the hearing on July 15, 2022, the district representative stated that the parent had no intention of placing the child in the public school. Asked about appropriateness of the unilateral placement, she stated that part of the day was devoted to religious component, and the district still didn’t know if the public school would be more appropriate. When told by the IHO that it was not a comparison and asked for the district’s position, the district representative stated that he would have a full school day in the public school and there should be no payment for any portion that was religious. When asked whether she had anything else to say in regard to appropriateness of the private school, she stated, “I really don’t have any other claims in regards to that issue.”

FINDINGS OF FACT

[REDACTED] testified that [REDACTED] was diagnosed with autism and intellectual disability. His strengths are his a very good memory and interpersonal skills, a great sense of humor, nice looking, sweet and happy. He’s not up to par, however, and nowhere where he should be in academics and reading. Tr. 83-102. [REDACTED], Program Director at the [REDACTED] School, described [REDACTED] as a young man, with “autistic tendencies.” He has a tendency to perseverate on topics of interest to him, specifically transportation, and would go off target when socializing with others. He also had a hard time focusing and difficulty transitioning appropriately. Tr. 53-77.

District recommendation. [REDACTED] stated that she participated in annual review meeting conducted by the DOE for the 2021-2022 school year, and also visited the school recommended for [REDACTED] to attend for the school year. She stated that the recommended 12:1:1 program was a bigger classroom, noting that [REDACTED] gets distracted very easily and she didn’t feel it would be good for him. She also noted a very wide variety of students with different special needs in the room, not similar to [REDACTED] and with a different level of learning. There was some children with “very behavioral” issues in the classroom as well, and as [REDACTED] happy and well behaved, she didn’t think the environment with be good for him. She stated that made the visit in June, to [REDACTED]. She stated that the class was too big for him, and he needs the support of being refocused in a small group. Tr. 83-102; Ex. C.

Placement fat [REDACTED]. In the 2021-2022 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 academic, social, emotional, and life skills of each student. The school works with a high teacher to student ratio to reinforce learning skills while minimizing distraction.

In the 2021-2022 school year, there was a total of nine students in the class. [REDACTED]’s teacher was [REDACTED], licensed and certified in special education. There were two assistant teachers in the classroom and a paraprofessional for another student. [REDACTED] also received speech, occupational therapy, and physical therapy, and participated in counseling groups. [REDACTED] described [REDACTED] in class, stating that his participation depended on the subject area or skill being taught, as well as the size of the group. For hands-on activities, such as a science experiment, or cooking, he could work with the group, although not a large group. Subject areas requiring more focus, such as math or reading and language arts, required either one-to-one instruction or instruction in a pair. With a class ratio of 9:1:2, it was fairly easy to arrange times where [REDACTED] could receive needed individual instruction and still have staff to work with small groups and other areas of instruction. She stated that class sizes a significant issue for [REDACTED], who is easily distracted and has a tendency to be immature to gain attention. Tr. 53-77.

At the beginning of the school year, [REDACTED]’s reading level was somewhere between the second and third grade level. In math, he was somewhere in the first grade level, although in addition, he might have been at beginning the second grade level. Academic instruction included standard subject areas, with a focus on areas that would help him in life, [REDACTED] She gave a similar example in math, focusing on money skills and also working on calculator math. There were also vocational components in his instruction, such as making phone calls with more independence, writing down important information, shredding and making copies of documents, lunch and food service skills, and clearing up and washing utensils. In the beginning of the school year, his mother, identified a new concern about nutrition, and the need to work with him on increasing his understanding of healthy lifestyles and eating habits. Tr. 53-77.

[REDACTED] stated that [REDACTED] showed a general improvement in his maturity and understanding of his behaviors and how they impacted things that happened, allowing him to withdraw some of the need for external motivation and rely more on prompting and encouragement. He showed great improvement acting appropriately without attention seeking behaviors. His ability to transition from place to place greatly improved, with fewer incidents, helping both his social improvement and his academic progress. He was also forming good peer relations, which allowed him to have more social interaction after school hours. He learned to Facetime on his own with friends, and related interest in play dates. This also impacted his nutrition and his weight gain, as he had more social interaction after school. Academically, he start to focus more, completing tasks with fewer reminders, mastering another 10 to 15 words on the Dolch sight word list and able to read longer passages. His addition skills improved in accuracy, with improvement in subtraction showing a significant gain and increased understanding in the concept. Whereas before he wasn’t able to add even like coins, in 2021-2022 he mastered the ability to add different coins individually. He also improved his ability to tell time. His tendency to perseverate diminished greatly, and he was able to find more items in the store, and showed more of an awareness of those around him instead of being more self-focused. Tr. 53-77.

[REDACTED] testified that there was no [REDACTED] or [REDACTED] studies for the student. She confirmed that there was religious activity offered to students, but was unable to provide the percentage. She noted [REDACTED] in the morning, as well as 15 minutes [REDACTED] at the end of the day, which h she described as a short prayer session. Ex. E. There was also a monthly opportunity for mainstreaming with students from other high schools, through various activities at the school or at other locations for sports or games. Tr. 53-77.

[REDACTED] stated that he demonstrated progress in the 2021-2022 school year at staff, stating that the biggest jump was his ability to be more related, relatable, and appropriate. He never used to have social interactions, only participating in parallel play and only able to form some sort of relationship with adults, but he learned to Facetime with his friends every night and laugh at their jokes, showing more appropriate conversation and just being so much more on the ball. She also noted doing homework with him that he was a little bit better in math, and he cared more about doing his homework, reminding her that he wants to do. She stated that he was making tremendous progress, but described it as one day at a time for him moving forward. She noted trying different programs, having started the public school system, and stated that the [REDACTED] was the one place where he was growing by leaps and bounds. Tr. 83-102.

Contract. The tuition contract for [REDACTED]’s attendance at [REDACTED] in 2021-2022 provided a total fee of $55,000, with an additional $9,000 for related services of speech, occupational therapy, and physical therapy. Exs. Q, R. [REDACTED] confirmed that she signed the contract with [REDACTED] to pay tuition for the 2021-2022 school year. She stated that she had paid anything yet, because she was waiting for payment from the DOE for prior school years, and [REDACTED] said they would give her a little more time to see if the money comes in. She confirmed that she was asking for reimbursement of tuition in this case. Tr. 83-102.

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. The district representative provided no meaningful defense of the district’s actions, and offered no witnesses and only one document into evidence. Nor did she dispute any of the parent’s testimony concerning the IEP meeting and the school placement. 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], and her description of the significance of the small class size for [REDACTED], noting the ability for individual and paired instruction in the 9:1:2 class. I credit the focus on academic instruction focused on areas to help the REDACTED year-old student in life, nothing emphasis of reading longer passages, money skills, and vocational tasks, with progress noted in sight words, adding coins, and telling time. I credit the testimony of both [REDACTED] and [REDACTED] in social improvement as well as academic progress, forming relationships that actual social interaction. I credit [REDACTED]’s statement that the biggest jump was his ability to be more related, relatable, and appropriate, showing more appropriate conversation and just being so much more on the ball. Finally, I take note that the district representative offered no argument that the program was inappropriate, objecting only to included time for religious instruction in any award.

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 will 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. The district representative provided a pro forma objection that the parent had not intended the child to attend a public school, which was without any evidentiary basis in the record and would in any case be irrelevant to a determination as to 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 4 hours devoted to religious activities. I have calculated a reduction in the tuition charge of $55,000 by 11.4 percent, for a total of $48,730. 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.^[1] Exs. E, Q, R.

Additional relief requested. There was no mention by the parent advocate or parent about the demand for transportation or home support, and there will be no decision concerning the demand.

ORDER

• • The DOE shall fund [REDACTED]’s enrollment for educational services at [REDACTED], at a rate not to exceed $48,730 for the 2021-2022 school year.
• • The DOE shall fund related services provided to [REDACTED] at [REDACTED] during the 2021-2022 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 $9,000, upon submission of proof of service delivery at the noted frequency:
• • speech 1x30x40 weeks 1:1 at $100 per hour; for a total not to exceed $2,000,
• • speech 1x30x40 weeks 3:1 at $50 per hour; for a total not to exceed $1,000,
• • occupational therapy 2x30x40 weeks 1:1 at $100 per hour, for a total not to exceed $4,000,
• • occupational therapy 1x30x40 weeks 3:1 at $50 per hour, for a total not to exceed $1,000, and
• • physical therapy 1x30x40 weeks 3:1 at $50 per hour; for a total not to exceed $1,000.

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 Prior written notice with school location letter, 6/3/2021, 14 pages

PARENT EXHIBITS

A Impartial hearing request, 12/14/2021, 6 pages

B Program description, 2 pages

C IEP, 5/4/2021, 18 pages

D Ten-day notice, 6/17/2021, 2 pages

E Class schedule, 2021-2022, 1 page

F Goals and objectives, 2021-2022, 6 pages

G Behavior modification plan, 2021-2022, 1 page

H Classroom routines, 2021-2022, 2 pages

I [REDACTED]'s sensory diet, 2021-2022, 1 page

J Physical therapy report, April 2022, 2 pages

K Teacher's report, April 2022, 2 pages

L Occupational therapy report, April 2022, 4 pages

M Speech and language report, April 2022, 3 pages

N Counseling report, April 2022, 2 pages

O School letter to camp, 5/9/2021, 1 page

P Biannual student evaluation, September 2021, 8 pages

Q Related services cost, 2021-2022, 1 page

R Enrollment contract, 2021-2022, 1 page

S Attendance record, 2021-2022, 1 page

Footnotes

[1] The breakdown for related services, with a heading of 10-month educational services, mistakenly lists physical therapy for 46 weeks, although the total is correctly figured at a 10-month rate. The order will reflect a 40-week period.