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Special Education Law
DECISIONParent PrevailedIHO Case No. 223462

New York City Department of Education, Impartial Hearing Decision

August 12, 2022·Blueth Bromfield·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.

NYSED # 568488 / NYC # 223462

FINDINGS OF FACT AND DECISION

Case Number: 223462

NYS Case ID Number: 568488

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: June 23, 2022

Record Close: August 8, 2022

Hearing Officer: Blueth Bromfield, Esq.

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

REDACTED,

by and through his/her Parent(s),

Petitioners, FINDINGS OF FACT

AND DECISION

- against -

THE NYC SCHOOL DISTRICT,

BLUETH BROMFIELD, ESQ.

Respondent. Impartial Hearing Officer

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200 and/or Section 504 of the Rehabilitation Act.

PROCEDURAL HISTORY

This case was appointed by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”) on Petitioners’ due process complaint (DPC), filed on or around January 3, 2022[1]. (P - A).[2] The resolution period expired without the parties reaching an agreement. This IHO was appointed on January 7, 2022. An initial hearing conference in the matter was held on, March 8, 2022. A closed hearing was held on June 23, 2022. The initial compliance date was March 19, 2022. Extensions were granted extending the compliance date to August 16, 2022. The record closed on August 8, 2022.

BACKGROUND

What follows below are the facts as per the DPC and disclosures. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Other Health Impairment. He also has an Attention Deficit Hyperactivity Disorder (ADHD) diagnoses. The student struggles with attention, impulse control, regulation, difficulties with socialization and he has a low frustration threshold. The student’s classification and eligibility for special education supports and services are not in dispute. The school year (SYs) at issue in this DPC are 2019-20, 2020-21 and 2021-22. The student was attending public school for the 2019-20 & 2020-21 SYs and REDACTED (hereinafter “the private school”) for the 2021-22 SY. During each SY, the Committee Special Education (“CSE”) convened for an Individualized Education Program (“IEP”) meeting for the student. Both the February 4, 2019 and the May 13, 2020 IEPs recommended a 10-month program in an Integrated Co-Teaching Class for ELA, Math and Social Studies in a NYC DOE Non-Specialized District School with a full-time behavior support paraprofessional and related services of Counseling Services (CS) - Individual Service, 1 time per week for 30 minutes; CS - Group of 7, 1 time per week for 30 minutes; and Occupational Therapy (OT), Group of 3, 2 times per week for 30 minutes. (R – 2) and (R – 14). The May 4, 2021, the most recent IEP, recommended, for the first time, a 12:1+1 class in a 12 month program in a specialized class at a New York State Education Department (NYSED) Approved Non Public Day School with special transportation services; a full-time behavior support paraprofessional; assistive technology of a laptop, headphone and mic; and the following related services: CS - Individual Service, 1 time per week for 30 minutes; CS - Group of 7, 1 time per week for 30 minutes; and OT, Group of 3, 2 times per week for 30 minutes. (R – 35). The parents felt that the recommendations in the IEP did not properly address the student’s needs because, among other things, the district failed to provide sufficient special education supports during the pandemic; the district failed to provide the parents with information as to planning for instruction during the pandemic; the IEP teams failed to make decisions based upon the student's individual needs; the CSE failed to recommend a specific methodology that the student required; the IEPs do not include sufficient behavioral supports; the IEP goals were vague; the CSE failed to recommend sufficient 1:1 instruction; the IEP teams were not properly constituted; and the district failed to recommend a placement capable of implementing the IEP. While DOE was looking for a non-public school placement, the parents were conducting their own research as to non-public and private schools that met the student’s needs. At the beginning of the 2021-22 SY, DOE had not yet provided a placement in a non-public school, so the parents unilaterally placed the student at the private school and thereafter filed the DPC which is the basis for the instant case. The DPC states that the DOE failed to provide the student with a free and appropriate public education (FAPE). The parents are seeking, as compensatory services, reimbursement for payment of behavioral psychotherapy provided by a psychologist during the 2019-20 and 2020-21 SYs and tuition reimbursement and transportation reimbursement in connection with the student’s unilateral placement at the private school for the 2021-22 SY.

THE HEARING

At the hearing the following persons appeared:

For the Department of Education:

REDACTED, ESQ., DOE Attorney (Via Telephone)

For the Student:

REDACTED, ESQ., Parent’s Attorney (Via Telephone)

REDACTED, Head of School, REDACTED School (Via Telephone), (“Witness #1”)

REDACTED, Assistant Clinical Director, REDACTED School (Via Telephone), (“Witness #2”)

REDACTED, Parent (Via Telephone), (“Witness #3”)

At the hearing, the district representative stated that the district was not defending FAPE, but the district was holding the parent to their burden as to the appropriateness of the unilateral placement and was reserving the right to make arguments as to deficiencies in the parent’s evidence in terms of the equities. The parents argued that the unilateral placement was appropriate; the parent never received an acceptance from a nonpublic school; and the parent had no other option except to unilaterally place the student at the private school. The district failed to develop an appropriate IEP for the student for many years. The student displayed maladaptive behaviors such as refusing to pay attention in class, eloping the classroom, stripping naked at school, and going into crisis where the parents had to be called multiple times to intervene, yet the student remained in the same setting and there were no additional supports offered other than a DOE developed behavior intervention plan (BIP), which was not appropriate. The parent made every effort to supplement the student’s education through additional services including costs incurred for a behavioral psychologist. DOE’s production of documents alone does not establish that it provided the student a FAPE.

Witness #1

Relevant portions of Witness #1’s testimony is as follows. She is the Head of School at the private school. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, and professional experience. (TR - 50)].

The private school is a 12-month program for children with special needs, ages five through 21. It provides academic instruction in small groups with varying support ratios of 2:1 or 1:1 and provides occupational therapy, physical therapy, speech and language therapy, mental health counseling with social workers, art therapy and music therapy. All of the related service providers are New York State licensed providers. The school utilizes a variety of instructional and therapeutic approaches including, but not limited to, applied behavior analysis (ABA) which is a research-based systematic instructional approach and treatment methodology used to introduce skills, to decrease challenging and interfering behaviors, and to target more appropriate functional behaviors. There is a NYS certified special education teacher and a lead behavior therapist in every classroom and there are behavior support staff in each classroom. Teaching assistants and behavior therapists all have bachelor’s degrees, and some are enrolled in master’s programs. The typical class size is six to eight students and the students are grouped by age. Parent counseling and training is provided by the school. The private school sends home weekly e-mails to the parents and there are frequent conferences with the families. Progress reports are provided three times per year. The admission process, pre-pandemic, was in person. Post pandemic the process begins with a phone call with the parent, application, student video submission, a virtual tour of the facility, then an in-person screening with the student, potentially an observation of the student at his current school setting, review of instructional history, neuropsychological evaluations, academic reports and progress reports from previous school settings, and conversations with outside providers - mental health providers, physicians, teachers, or service providers - as deemed appropriate for the process of admission. She is familiar with the student. He began at the private school July 2021 and she sees him on a daily basis. The student receives all related services on his IEP – OT, SLT and CS. The student needed to work on self-regulation, managing his anxiety and his attention deficit and hyperactivity, as well as his pragmatic language, and social deficits due to his diagnoses. He was grouped with other students that were similarly situated.

On cross examination the witness testified as follows. The parent applied to the school in March 2021. The progress reports are released in November, March and June of each year. The student’s tuition of $138,000 for the 2021-22 SY is based on the group size and support ratio and the related services and mental health counseling provided the student.

Witness #2

Relevant portions of Witness #2’s testimony is as follows. She is the Assistant Clinical Director at the private school. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, and professional experience. (TR - 63)]. She is a board-certified behavior analyst (BCBA) and a NYS licensed behavior analyst (LBA). Her duties and responsibilities include overseeing the design and implementation of the functional behavior assessments (FBAs) and BIPs across the other supervisors and classrooms at the private school, staff training and she is the clinical supervisor of the student’s classroom. She became familiar with the student when he began attending the private school. The student’s special education needs are social pragmatic communication disorder, ADHD - combined type, generalized anxiety disorder, developmental coordination disorder, and these combinations of diagnoses contribute to some delays in social-emotional development, deficits in frustration tolerance, and other areas that impact his success in an academic setting. She meets with the student’s teachers and related service providers on a weekly basis, and more frequently if needed. She was involved in the development of the student’s FBA and BIP, and both documents were reviewed with the student’s parents. The BIP was implemented across the entire school day. When the student first began at the private school, his reading and math levels were end of third-grade beginning of fourth-grade level, but the student was at the end of fourth-grade in both areas by the end of the SY. She was involved in developing the student’s progress reports. The student’s greatest achievements for the SY were developing friendships and learning how to advocate for himself in those friendships. She was a part of the parent counseling and training for the student’s family. DOE’s BIPs, dated February 1, 2019 & March 19, 2021 (R – 4 & 53), and FBA, dated February 1, 2019 (R – 6), were not appropriate because they were not very scientific, and were not based in the science of ABA. (TR – 72 to 79). The BIP is extremely important to the student’s educational background. The private school was appropriate for the student.

On cross examination the witness testified as follows. She is an LBA. The student receives ABA from both an LBA, herself, and from someone supervised by an LBA. She supervises two BCBAs and two lead behavior therapists who are in programs to become BCBAs (Master’s programs obtaining hours toward their BCBA). The student is on medication for his ADHD. Based on her experience with the student during the SY, there is a slight difference in his behavior when he isn’t on medication, but he was consistent with his medication for the SY, so the staff never encountered much change in his behavior.

Witness #3

Relevant portions of Witness #3’s testimony is as follows. She is the mother of the student. The student is nine years old and was in the fourth grade for the 2021-22 SY. The student has ADHD - combined type, generalized anxiety disorder, social pragmatic communication disorder, developmental coordination disorder, and he may have a sensory processing disorder. He was diagnosed by both a psychiatrist and a neuropsychologist. The student received his first IEP in Pre-K when his teacher noticed his behavior and suggested that he be evaluated. The student was attending public school in Kindergarten and was in an ICT class. Kindergarten was difficult and the parents received frequent emails and calls concerning the student’s behavioral issues. The student was initially sharing a paraprofessional with another student, but shortly thereafter the student was assigned his own paraprofessional for 1:1 behavioral support. The behavioral issues continued in first grade - tantruming, crying, yelling, low frustration tolerance, running out of the room, running in the halls, breaking things, or biting objects (oral sensory seeking behavior). He never hurt another student but sometimes he hurt himself while acting out and he would state things like “kill me”. The school never provided additional support to address the student’s behavior. The parents took the child to see a psychiatrist who eventually prescribed medication and suggested that the parents seek cognitive behavioral therapy, from Dr. B (doctor), for the student to cope with his emotions. The doctor was considered an out of network provider and was therefore not covered by the parent’s insurance. The doctor conducted an observational assessment report (P – Y), at his teacher’s request, and that report was provided to the school. In spring of 2019, the doctor was coordinating with the student’s teachers to create visuals and a reward system for the student (P – Z) and was providing training to his paraprofessional. The student was making efforts but was still not succeeding. In July of 2019 the parents requested a neuropsychological evaluation, but it never took place. The student was promoted to a second grade ICT class for the 2019-20 SY. In the beginning of second grade, the doctor permitted the student to be placed in her social skills training program. (TR – 95-96). The student’s teachers were told about the skills the student was learning in the training program; however, they were not reinforcing what they were told in the classroom. The student’s behavioral issues were better the first months of the 2019-20 SY, as the student adjusted to new medication, but around December the student’s behavioral issues began again. The school did not offer any additional supports at this time. At the student’s social history meeting, the parent requested any other services that could have been provided to the student, specifically assistive technology and physical therapy, but the requests were never addressed. In January 2020, the parents received an email from the teachers stating that the student was not participating in school and was not doing his work; however, there were no suggestions for fixing the problem. The parents were frustrated that they put in time and effort outside of the school to help the student, but the teachers weren’t implementing those skills in the school. The parents forwarded the email to the doctor and the doctor agreed to start seeing the student again on a 1:1 basis. The school closed because of COVID in March 2020 and a remote program was available reasonably quickly thereafter; however, the student did not have access to a special education teacher. The student did not really understand remote learning and the parents had to watch the remote instruction with him and then try to teach him things on their own and help the student to submit his assignments. The student was not able to sit in front of the laptop for hours at a time. The parents did not speak to the school about it because that time was difficult for everyone given the circumstances and they did not want to complain about it. The student was promoted to the third grade for the 2020-21 SY and was signed up to attend school in a hybrid model, but he was suspended on the second day of school for a disability-related meltdown where he ran out of the classroom, ran down a flight of stairs and into an empty classroom where he began jumping on the desks. The student was not sent back to school because the school felt that it would not be able to keep the student safe from COVID given his behavior and the need for social distancing, so he remained remote for the rest of the year. The student’s remote classes were full classes with 20-minute periods where the student was with two other students that were not preforming on the same level. The student could not attend the remote sessions without help from his parents. The parents communicated their concerns with remote learning to the school. DOE never offered any 1:1 instruction to the student during remote learning. There was no response from the school as to the recommendations in the DOE funded neuropsychological evaluation (P – L), which was provided to the school by the psychologist. The parents were in agreement with the neuropsychological evaluation but none of the recommendations were ever implemented in school. The student was not seeing the doctor at the beginning of the 2020-21 SY because she was on parental leave until February. By January and February of the 2020-21 SY the student was refusing to do remote learning and even made some suicidal statements. The doctor, who was off or parental leave by that time, offered assistance in helping the student with remote learning (P – U). There was a CSE meeting held in March of 2021 where the district decided to place the student in a non-public school after the district concluded that everything they were doing for the student was not working. The CSE never talked about adding any kind of supplementary supports while they were locating a nonpublic school for the student. There was another meeting in May of 2021 to add assistive technology and transportation to the student’s IEP. The parents never received any information as to the non-public schools that were being considered for the student, so the parent began doing her own research on schools. The student was not accepted to any non-public school prior to the start of the 2021-22 12-month SY. There was another meeting in August 2021 where the parents thought that they were going to be told that there wasn’t a placement, but instead they were informed that they had declined a recommended placement, even though they never received a placement offer. They did receive communication from the recommended placement shortly thereafter. A meeting was set up with the placement to talk about the school, but it had to be cut short and was to be continued at a later date, but the parent never received a response for a follow up. The parent had the opportunity to tour the private school for the 2021-22 SY, which was unlike the non-public schools that they were in touch with. The parents decided to place the student at the private school because the student was declined at some schools and other schools did not have the right profile for the student’s needs. It came down to two schools and the parents and the student liked the private school, the staff at the private school were impressive with their interactions with the student and the private school stated that it was capable of handling the student. The private schools BIP was explained to the parents and it was more impressive than DOE’s BIP. The student improved under the private school BIP, moving from three prompts to zero prompts when it came to doing what was expected of him. She was given progress reports throughout the SY. The student has made improvements in his social skills, he’s making friends, and he’s happy and enjoying himself. He was elected class president. His self-esteem has improved. The parents have paid the tuition in full. They requested transportation from DOE, but it took some time for it to be put it in place and in the meantime, the parents had to figure out a way to get the student to school. The mother would take the student in an Uber there and back as she has a condition and couldn’t take the subway, but the father would use the subway whenever he took the student to the private school. The parents provided receipts for the cost of transportation. (P – FF) (TR 129-133).

On cross examination, the witness testified as follows. The parents were not seeking reimbursement for psychotherapy sessions provided by REDACTED. The parents were seeking reimbursement for sessions with the doctor and with REDACTED, the doctor’s social worker that was working with the families as part of the doctor’s service to the students. The services provided by and billed for the doctor were individual psychotherapy sessions between the doctor and the student, group psychotherapy sessions between the doctor and a group of similarly situated children including the student, and multi family group psychotherapy sessions between the doctor’s social worker and the families of the students in the group psychotherapy sessions. (P – T). The transportation receipts included trips that the mother took with the student to and from the school. Some of the trips were solo trips of the mother going to pick up the student at school or returning from dropping off the student at school. (P – FF). A few of the trips were in the middle of the day because it was either a half day or she was picking the student up because he was feeling sick. The medications that the student takes are REDACTED, REDACTED and REDACTED. The student only takes the REDACTED on school days and has been taking it since the end of third grade.

On redirect, the witness testified that she would not have needed to take the solo trips if DOE had provided the transportation for the student. Also, because of her condition, she was unable to take the subway to drop off and pick up the student.

ISSUE

The issue is whether DOE is required to fund tuition reimbursement, transportation and psychotherapy sessions in relation to the parents’ unilateral placement of the student at the private school?

RULE OF LAW

Tuition Reimbursement – The Burlington Test The issue of whether a parent is entitled to tuition reimbursement for unilaterally placing their child at a private school is governed by a three-prong test found in School Committee of the Town of Burlington v. Department of Education, Massachusetts (471 U. S. 359 (1985). Burlington establishes that a Board of Education is required to pay for educational services obtained for a child by the child’s parents, (1) if the services offered by the Board of Education were inadequate or inappropriate, (2) the services selected by the parents were appropriate, and (3) equitable considerations support the parents’ claim.

First Prong

States receiving public funds under the IDEA are required to provide FAPE to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA directs that a determination as to whether a student received a FAPE must be based on substantive grounds and/or procedural inadequacies. 20 U.S.C. §1415(f)(3)(E).  To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Specifically, a procedural FAPE violation has occurred if the district’s alleged procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)

Second Prong The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Id. The parents’ choice must be “appropriate,” “not... perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be likely to produce progress, not regression.

Third Prong The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if (1a) at the most recent IEP meeting, prior to their removal of the child from public school, the parents did not inform the CSE that they were rejecting its proposed placement and that they intended to place their child in a private school at public expense or (1b) the parents did not provide the school district with written notice of such information ten business days before such removal; (2) if the district prior to parent’s removal, informed the parent of its intent to do an evaluation of the student but the parents did not make the child available for the evaluation or (3) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 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, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014].

Compensatory Services

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015). A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Transportation The IDEA specifically includes transportation, as well as any such developmental, corrective, and other supportive services necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]).  In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]).  Transportation as a related service can include: travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]).  Special transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053; see Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 [OSERS 2009]; Letter to Smith, 23 IDELR 344 [OSEP 1995]).  If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (8 NYCRR 200.1(ww)).

Burden Of Proof The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).

APPLICATION OF LAW

After considering all the evidence, the arguments of counsel, as well as my legal research, I find that the DOE failed to provide the student a FAPE and the district is required to reimburse the parent’s for cost they’ve incurred for their unilateral placement of the student at the private school. As a preliminary matter, per the facts as presented at this juncture, there is no finding that the District failed to comply with the procedural requirements of the IDEA. However, the DOE failed to substantively provide the student FAPE, as is demonstrated in the application of the Burlington test below.

The DOE has failed to meet its burden that it provided the student with a FAPE. DOE did not defend against the parent’s failure of FAPE claim. Further, there is nothing to show that the DOE’s recommended education program was reasonably calculated to enable the child to receive educational benefits. Among other things, the IEP recommended a 12:1+1 class for the student; however, the district did not have a recommended placement in place at the beginning of the 12-month SY, and when a placement was finally recommended the non-public school did not follow up with the parents and the district did not provide any other recommendation. The IEP failed to provide the student with sufficient behavioral supports and the CSE failed to recommend sufficient small group instruction. Except for a paraprofessional for behavior support and one hour of counseling services per week, the program recommended by the IEP did not provide sufficient services to allow the student to regulate his behavior, which would ultimately interfere with his progress with learning. The school did not implement the reward program and other suggestions made by the doctor. The DOE recommended education program was not reasonably calculated to enable the child to receive educational benefits. The student was not provided FAPE for the 2019-20, 2020-21 and 2021-2022 SYs.

DOE argues that the private school was not appropriate because some of the persons working directly with the student were not LBA or BCBA. The parent countered that as per Education Law, Title 8, Article 167, Section 8807, schools are exempt, and the student can be provided ABA services by individuals who are not a LBA or BCBA. I find the parent’s argument here to be valid. The parents have sustained their burden of demonstrating the appropriateness of the private school placement. The school utilizes a variety of instructional and therapeutic approaches including, but not limited to, ABA. There is a NYS certified special education teacher with behavior support staff in each classroom. The private school provides a small class setting and personalized attention under the direct supervision of an LBA or BCBA. In addition, the school provides all his related services recommended in the IEP. Furthermore, the student’s behavior has improved while at the private school and the student has made educational progress. The private school is appropriate.

The district disputes the third prong of the Burlington three prong test arguing that the parents applied to the private school in April 2021, before they began receiving any recommended placements, and this, supposedly, shows bad faith on the part of the parents. I do not agree. The parent credibly testified that the meeting to discuss placing the student at a non-public school took place in March 2021, but the parents were not provided any information as to the non-public schools that were appropriate for the student and they had already received the first rejection letter from a non-public school by that time. That the parents, lacking information from the district, not knowing where their child would be placed or if he would receive a placement at all, with the student’s behavior getting worse and the student not being provided appropriate support by the district, took it upon themselves to do their own research and to begin the process of finding an appropriate school for their child, is not bad faith. The DOE has failed to meet its burden that the equities were not in the parents’ favor. I find that the equities favor the parent. There is no evidence that the parents did not attend the IEP meetings, did not inform the CSE that they were rejecting the recommended placement, that the parents did not provide the district with prior written notice, that the parents were not cooperative with evaluations or that there was unreasonableness on the part of the parents. Here, equitable considerations favor the parent.

CONCLUSION

The school district failed to provide the student with FAPE, the parent’s unilateral placement of the child at the private school was appropriate and the equities favor the parents. Accordingly, the parents are entitled to reimbursement of the tuition for the private school for the 2021-22 SY. The parents testified, that as of the time of the hearing, they had paid, in full, $138,000 for the student’s tuition for the 2021-22 SY. The parents should be reimbursed for any monies paid for the student’s tuition. The district argued that the parent should not be reimbursed for the services provided by the doctor because the doctor did not appear as a witness and there is no evidence that the psychotherapy sessions were relevant to the student’s education; in the alternative, if there were to be reimbursement, it should only be for the individual sessions and not for group or family group sessions. I find that the evidence, the doctor’s CV and the parent’s testimony, establishes that the service that the doctor was providing to the student was related to psychotherapy services to address the student’s behavior. I also find that group and family group sessions were necessary for the improvement of the student’s behavior. As per the parent’s testimony, in addition to providing services to the student individually, the doctor provided services to the student in a group so the student could learn skills to use while interacting with others, provided the parents with skills to interact with the student and to help him with his behavior when he was home and provided services to the district (which DOE never denied) in the form of the neuropsychological evaluation, suggestions for the rewards chart, suggestions during remote learning and training for the student’s paraprofessional. I find that in this situation, where a minor child has major behavioral issues, it would not make sense for DOE to agree to pay for the student/minor child to learn individual skills without providing those around him, in his social, home and school life, skills to reinforce what the student was learning individually. Under the qualitative approach, the parents should be reimbursed $11,500 for the individual, group and family group psychotherapy sessions conducted by the doctor and her social worker. The district also argues that the transportation reimbursement should only be for trips with the student and should not include the parent’s solo trips. The district’s argument is not valid. The parent would not have needed to take solo trips to and from the private school had DOE provided the transportation services from the beginning, as it was required to do. The district cannot now argue that the parent should not be reimbursed for getting the student to and from school when it was the district’s obligation to do so in the first place. The parents provided persuasive evidence that the mother’s cost for transporting the student was $1,103.41 and the father’s cost was $192.03. The parents should be reimbursed $1,295.44 for all transportation costs.

ORDER

Based upon the foregoing, it is hereby:

  • • ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2019-20, 2020-21, and 2021-2022 SYs,
  • • ORDERED that DOE reimburse the parents $138,000.00 for monies that they have personally paid in connection with the student’s tuition at the private school for the 2021-2022 SY, within 30 days of proof of payment (bank statement, credit card statement, etc.) and proof of receipt by the private school;
  • • ORDERED that DOE reimburse the parents $1,295.44 for the cost to the parent of transporting the student to and from the school when DOE failed to provide transportation, within 30 days of this decision,
  • • ORDERED that DOE reimburse the parents $11,500 for the individual, group and family group psychotherapy sessions, within 30 days of this decision.

IT IS SO ORDERED

Dated: August 12, 2022

BLUETH BROMFIELD

_______________________________

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

  • • January 25, 2019, Notice of IEP Meeting, 4 pgs.
  • • February 4, 2019, IEP, 22 pgs.
  • • February 4, 2019, IEP Attendance Page, 1 pg.
  • • February 1, 2019, Behavior Intervention Plan, 4 pgs.
  • • May 13, 2019, BIP Review Meeting, 1 pg.
  • • February 1, 2019, Functional Behavior Assessment, 5 pgs.
  • • January 25, 2019, Occupational and Physical Therapy Clinical Guide, 2 pgs.
  • • February 4, 2019, Occupational and Physical Therapy Clinical Guide, 2 pgs.
  • • February 12, 2019, Chapter 408 Teacher & Related Service Provider Verification Form, 1pg.
  • • March 24, 2017, Classroom Observation, 4 pgs.
  • • February 12, 2019, Prior Written Notice of Recommendation, 5 pgs.
  • • January 29, 2020, Notice of IEP Meeting, 4 pgs.
  • • April 23, 2020, Notice of IEP Meeting, 4 pgs.
  • • May 13, 2020, IEP, 25 pgs.
  • • January 21, 2020, Consent for Additional Assessments, 1 pg.
  • • January 3, 2020, Notice of Mandated Three-Year Evaluation, 3 pgs.
  • • March 27, 2020, Consent for Teletherapy, 1 pg.
  • • January 22, 2020, Physical Examination, 2 pgs.
  • • May 4, 2020, Occupational and Physical Therapy Clinical Guide, 3 pgs.
  • • January 28, 2020, Updated Social History, 2 pgs.
  • • January 17, 2020, Teacher Report 2019-20, 4 pgs.
  • • January 21, 2020, Neuropsychological Assessment Authorization, 8 pgs.
  • • November 13, 2019, Progress Monitoring Review Meeting, 12 pgs.
  • • September 3, 2019, Chapter 408 Teacher & Related Service Provider Verification Form, 1 pg.
  • • September 4, 2019, Chapter 408 Paraprofessional Verification Form, 1 pg.
  • • April 8, 2020, Remote Learning Plan, 4 pgs.
  • • May 22, 2020, Prior Written Notice of Recommendation, 5 pgs.
  • • November 25, 2020, Related Service Adaptations for Blended and Remote Learning- Occupational Therapy, 4 pgs.
  • • October 2, 2020, Related Service Adaptations for Blended and Remote Learning- Counseling, 4 pgs.
  • • September 29, 2020, Special Education Program Adaptations Document, 6 pgs.
  • • March 4, 2021, Notice of IEP Meeting, 5 pgs.
  • • April 23, 2021, Notice of IEP Meeting, 4 pgs.
  • • December 10, 2020, Request for Reevaluation, 1 pg.
  • • December 21, 2020, Consent for Additional Assessments, 1 pg.
  • • May 4, 2021, IEP, 38 pgs.
  • • January 18, 2021, Psychiatric Assessment Authorization, 8 pgs.
  • • January 27, 2021, Remote Assessment Agency Evaluator Pre-Evaluation Checklist and Signature, 2 pgs.
  • • January 27, 2021, Psychiatric Assessment, 10 pgs.
  • • January 20, 2021, Psychoeducational Evaluation Report, 8 pgs.
  • • January 19, 2021, Classroom Observation, 3 pgs.
  • • March 3, 2021, Parent Response to Classroom Observation, 3 pgs.
  • • Undated, Parent Annotations of Classroom Observation, 2 pgs.
  • • March 9, 10, & 12, 2021, Classroom Observation, 6 pgs.
  • • February 9, 2021, Speech Language Evaluation, 7 pgs.
  • • March 2021, Occupational and Physical Therapy Clinical Guide, 4 pgs.
  • • January 19, 2021, 2020-2021 Social History Update, 7 pgs.
  • • September 14 & 27, 2020, Neuropsychological Assessment, 18 pgs.
  • • January 12, 2021, Letter from REDACTED, MD, 1 pg.
  • • Undated, AT evaluation, 2 pgs.
  • • February 5, 2021, Assistive Technology Evaluation Referral, 8 pgs.
  • • May 7, 2021, AT Procurement Order, 4 pgs.
  • • March 14, 2021, Teacher Report, 6 pgs.
  • • March 19, 2021, Behavior Intervention Plan, 4 pgs.
  • • May 14, 2021, Prior Written Notice of Recommendation, 6 pgs.
  • • May 21, 2021, CBST Acceptance, 2 pgs.
  • • May 21, 2021, Assurance Checklist, 2 pgs.
  • • May 21, 2021, IEP Team Efforts to Place Student in LRE, 2 pgs.
  • • Various Dates, Non Public School Response Letters, 27 pgs.
  • • July 29, 2021, IEP Meeting Notice, 4 pgs.

PARENT EXHIBITS

  • • 1/3/22, Due Process Complain, 6 pgs.
  • • 6/17/21, Ten Day Notice, 2 pgs.
  • • 21-22 SY, Student Enrollment Contract, 14 pgs.
  • • 1/12/22, Affidavit of REDACTED, 2 pgs.
  • • 21-22 SY, REDACTED Program Description, 1 pg.
  • • 21-22 SY, Student Schedule, 12 pgs.
  • • 3/19/21, IEP Attendance, 2 pgs.
  • • 5/4/21, IEP Attendance, 1 pg.
  • • 3/22/21, IEP, 30 pgs.
  • • 5/14/21, Prior Written Notice, 4 pgs.
  • • 20-21 SY, Report Card, 1 pg.
  • • 11/10/20, Neuropsychological and Educational Evaluation, 22 pgs.
  • • 11/19/21, Progress Report, 15 pgs.
  • • 4/20/21 & 5/3/21, Assistive Technology Evaluation, 3 pgs.
  • • 4/20/21 & 5/3/21, Writing Samples for Assistive Tech Evaluation, 2 pgs.
  • • 7/13/21, FBA & BIP, 16 pgs.
  • • Undated, Student Peace Corner Ticket, 1 pg.
  • • Undated, Student Rules and Rewards Chart, 1 pg.
  • • Undated, Student Social Story, 1 pg.
  • • Varied, REDACTED Costs, 7 pgs.
  • • Feb 2021, February Session Plan and Notes, 3 pgs.
  • • March 2021, March Session Plan and Notes, 6 pgs.
  • • 1/7/19, Email Correspondence, 2 pgs.
  • • 2/10/20, Follow Up Email, 1 pg.
  • • 6/14/19, Observational Assessment Report, 3 pgs.
  • • 5/13/19, Behavior Chart/Mission Card, 6 pgs.
  • • Varied, Communication Tree Email Thread, 7 pgs.
  • • 2/14/20, Smiley Charts Email, 1 pg.
  • • Varied, Neuropsychological Assessment Request Email Thread, 8 pgs.
  • • 4/22/21, Email Thread Regarding School Placement Meeting, 2 pgs.
  • • Varied, Email Regarding Potential Enrollment, 6 pgs.
  • • Varied, REDACTED Transportation Receipts, 38 pgs.
  • • Varied, REDACTED Transportation Receipts, 8 pgs.
  • • 10/8/20, Suspension Paperwork, 14 pgs.
  • • Varied, Email regarding Zoom Meetings/Reports for Student, 6 pgs.
  • • Undated, Curriculum Vitae of REDACTED PhD, 17 pgs.

IHO EXHIBITS

NONE

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.

Footnotes

[1] This DPC was a refile of another DPC, Case #212060, filed on August 30, 2021 and which was withdrawn on January 16, 2022.

[2] The Hearing Officer Exhibits, if any, will be referred to as “(IHO (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (T (followed by a page number)).