New York City Department of Education, Impartial Hearing Decision

Findings of Facts and Decision

Case No: 223783

Student’s name: Redacted

Date of Birth: Redacted

CSE: Redacted

Hearing Requested by: Parent

Actual Hearing Close Date: December 20, 2022

Dates of the Hearing: 9/14/22, 10/18/22, 11/15/22

Persons who appeared at the hearing

For the Student:

Redacted, Attorney

Redacted, Parent

Redacted, Principal, For the Department of Education:

Redacted, District Representative

Introduction

On September 14, 2022 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the impartial hearing request filed by the parent alleging the failure of the DOE to provide FAPE to the child for the 2020-2021 school year by failing to offer the child an appropriate program and placement.

The impartial hearing was held by video conferencing. The hearing commenced at 1:00 pm and continued on October 13,2022 and November 15,2022.

A list of Exhibits admitted into evidence is attached hereto.

Background

The student is [redacted] years old and classified by the DOE as a student with Autism. (Ex. A-1) She is diagnosed with Autism and Generalized Anxiety Disorder. (T. 65, 83) On January 28, 2020, the CSE convened and recommended that she attend a Special Class 12:1+1 in a community school, with related services. (T. 84-5) It was recommended that she attend P.S. [redacted] for the 2020-2021 school year. (T. 86) The parent did not agree with those recommendations and enrolled her at [Redacted] for the 2020-2021 school year. (T. 88). The parent now seeks tuition payments and claims the unilateral placement is appropriate and that the equities tip in her favor.

The parent’s position The parent alleges that the DOE failed to provide a FAPE for the 2020-2021 SY because it:1) failed to hold an IEP meeting with a team that was validly composed, 2) failed to follow appropriate procedures, 3) failed to consider relevant documentation and evaluative data. She alleges that the unilateral placement is appropriate placement and that the equities tip in her favor.

The DOE’s position The DOE did not defend its IEP or its placement. It presented no evidence to show that it provided a FAPE. It did not submit a post-hearing brief.

Findings of Fact

The student is [redacted] years old and classified by the DOE as a student with Autism. (Ex. A-1) She is diagnosed with Autism and Generalized Anxiety Disorder. (T. 65, 83) She has behavioral issues. (Ex. A)

She is described as a sweet young woman who presents with delays in the areas of academic skills, language and communication skills, attention/concentration, motor skills, executive functioning skills, and social emotional skills. (T. 65) She also struggles with a low frustration tolerance and maladaptive behaviors, such as disruptive behaviors and acting immaturely. (T. 65).

On January 28, 2020, the CSE convened and recommended that she attend a Special Class 12:1+1 in a community school, with related services. (T. 84-5) It was recommended that she attend P.S. 099 for the 2020-2021 school year. (T. 86) The parent did not agree with those recommendations and enrolled her at redacted for the 2020-2021 school year. The DOE did not offer any evidence to defend the recommendations in the IEP or the recommended placement.

On 8/24/20 the parent signed an enrollment contract for tuition for [REDACTED]. On 9/1/20 she signed an addendum for related services. (Ex.D) She has made no payments to date to Redacted. (Ex.E)

The principal of [Redacted] described it as a small, supportive school for students who require self-contained special education classrooms. (T. 59-60) During the 2020-2021 school year, [Redacted] had approximately 50 students. (T. 63) She has observed the student in the classroom and was in contact with the parent. The student started [REDACTED] in 2017 as a fourth grade student. In 2020-2021, she was in the 8th grade. The student was placed in a class with eight students, one lead teacher and two classroom assistants in each classroom. (T. 64) All of the students in her class had similar academic, language, behavioral, and social/emotional needs. (T.65) She had three main teachers. (T. 64)

[Redacted] used both formal and informal assessments to determine her academic functioning level at the beginning of the year. (T. 66) At the beginning of the 2020-2021 school year, the assessments showed that her reading and writing skills were delayed. She was reading at a sixth-grade level. She also needed to work on her comprehension skills and higher-level thinking skills. (T. 66) Reading instruction was provided to her in a group of 6. (T. 67) Through novel studies, she worked on building her vocabulary, learning literary elements, and deeper analysis of characters. (T. 67) She made significant progress in her vocabulary, was able to answer more complex questions and by the end of the SY her reading was at the end of the 6th grade reading level. (T. 68)

She began the school year able to write simple paragraphs, but her sentence structure was weak, she struggled with grammar skills, and she required significant teacher prompting. (T. 69) Writing instruction was provided in a small group setting utilizing a significant amount of 1:1 prompting and the Write Approach, which is based on the Step Up to Writing Program. (T. 70) This program provided her with a systematic approach that utilized graphic organizers. (T. 70) In writing, she ended the year able to more independently formulate a paragraph with an appropriate topic sentence, relevant details, and improved sentence structure. (T. 70-1)

In math, she was at beginning 6th grade level at the beginning of the 2020-2021 school year. (T. 71) She struggled with solving verbal problems and being able to identify which operation to use. (T. 71) Her teachers utilized multisensory materials and visual aids to help her with understanding concepts. (T. 71) Instruction was provided in a whole group, as well as a smaller group to review the skills learned. (T. 73) Her teachers utilized the Progress in Mathematics program to teach pre-algebra skills. (T. 72) By the end of the SY, her math skills were at the end of 6th grade/beginning of 7th grade level. (T. 73) In addition, by the end of the year, she learned how to write and solve algebraic expressions. (T. 72)

[Redacted] also addressed her behavioral and social emotional needs. At the beginning of the year, she had difficulty regulating herself when work was difficult. She would become easily overwhelmed. (T.73) She presented with a low frustration tolerance and she would display disruptive behaviors or act immaturely. (T. 75) Due to her language delays, she struggled to express herself and maintain conversations with her teachers and peers. (T. 75) To address these needs, [Redacted] used direct social skills instruction and a behavior management program. (T. 75-6) She was provided with modeling and role playing in order to show her appropriate behaviors in different social situations. (T. 75) She was also taught strategies to cope with her anxiety. (T. 76) The teachers utilized a class behavior modification program based on a token economy that let her earn points and incentives for meeting her personal behavior goals, as well as class wide behavior goals. (T. 76) During the SY, her social emotional skills developed significantly. She made noticeable improvement in her awareness of her emotions, self-advocacy skills, and ability to interact more appropriately with her peers. (T. 76) Overall, during the 2020-2021 school year, made meaningful progress. (T. 68, 70-3, 76, 81)

She also received related services (including Speech Language Therapy, Occupational Therapy, and Counseling) at [Redacted] from New York state licensed providers. (T. 62, 77) No RSA’s were requested or utilized. These service providers were all employees of [Redacted]. (T. 63) There is no issue here as to whether related services were provided or as to whether the use of these particular providers made the unilateral placement at [Redacted] inappropriate. All related services were provided. The related services providers collaborated with each other to ensure that the student’s needs were met throughout the school day. (T. 63, 78-9)

In March 2020, [Redacted] closed all of its locations and discontinued in person instruction. (Ex. H). Special education classes were conducted via Zoom and attendance was strictly monitored. Id. This continued from October 12 to November 5, 2020. Then, during the balance of the 2020-2021 SY, remote instruction was implemented as needed as a it had been the previous year SY.(Ex. H) This meant that remote classes were held with a main teacher and a para synchronously using Zoom. Id. The lessons were recorded for parents to reference to reinforce learning. Id. The related service providers utilized the Zoom platform as well. Teachers provided assessments through the use of ongoing monitoring, checking for understanding, provided regular documented feedback and tracking progress. (Ex. H)

Approximately 10 percent of the school week is spent on religious prayers of bible studies. (Ex. I)

The parent cooperated with the CSE. She participated in the January 2020 IEP meeting. (T. 84) Upon receipt of the district’s placement letter, she attempted to visit the school; however, she was informed that they were closed due to the Covid-19 pandemic (Ex. C-1; T. 87) She then spoke with representatives from the school and had serious concerns about whether it was appropriates for the student. (Ex. C-1; T. 87-8) She contacted the district in writing on multiple occasions, detailing her concerns with the January 2020 IEP and the recommended public school placement. (Ex. B, C; T. 88) The DOE did not respond to those letters. Id.

According to the parent’s income statement, she does did not have enough income to pay for the tuition at [Redacted]. (Ex. F) her total income was $44,000. She has five children. The tuition at [Redacted] is $50,000. According to the addendum signed by the parent, the cost of related services is an additional $10,000. (Ex.D)

Conclusions of Law

The IDEA was enacted to “ensure that all children with disabilities have available to them...a [FAPE] which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C.A. § 1400(d)(1)(A) The IDEA requires that IEPs be tailored to fit each child. As the Supreme Court of the United States recently held, the services and supports listed in a student’s IEP must be “reasonably calculated to enable a child to make progress appropriate in light of [his] circumstances.” Endrew F., 137 S. Ct. at 999. Instructional topics in an IEP can include academic and non-academic skills, including social/emotional regulation. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 248-9 (2d Cir. 2012). Where, as here, the parent is seeking reimbursement for a private school program as well as related services, the DOE has the burden of proof to show that it provided a FAPE. The DOE did not present any evidence to show that it offered the child a FAPE. Accordingly, the DOE failed to meet its burden for the 2020-2021 SY that it offered the child a FAPE.

Where, as here, the DOE fails to meet its burden, the parent bears the burden of proof to show that the unilateral placement is appropriate and provides a program that is reasonably calculated to provide an educational benefit. In addition, a unilateral private program is appropriate if it provides “education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) State regulation defines specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability." 8 N.Y.C.R.R. § 200.1(vv]). It is up to the Parent to demonstrate that the placement provides educational instruction to meet the unique needs of the child. Frank G. v. Bd. Of Education of Hyde Park, 459 F.3d 356, 364-65 (2d Cir.2006). Here, the evidence shows that the parent met her burden in major part.

[Redacted] provided the child with small classes as well as small group instruction when needed. She improved academically in reading, writing and math. Her behaviors also improved. Her related service providers routinely collaborated with her teachers to ensure that her SL, OT and counseling were effective in improving her communication skills as well as her behavioral issues. Accordingly, the parent has met her burden and is entitled to the cost of tuition for the secular portion of the instruction and the related services.

The only issue here is the amount of payment which the DOE must pay for the related services. Each of her related service providers were salaried employees of [Redacted]. There is no indication in the record of how much they were paid or whether the cost of their services exceeded the amount that would have been paid through the use of RSAs. While the SRO sanctioned funding for a private program in which, like the program here, the student para was provided based on an addendum to the enrollment contract, there is no discussion in that opinion as to whether the para was an employee of the school and receiving a salary or what that salary was or whether that cost exceeded an amount paid by an RSA. Application of a Student with a Disability, Appeal No. 14-098. However, the parent’s reliance upon the fact that the DOE has a long accepted, standard practice of providing students with related services by non-district employees via RSAs) is instructive in this case. Application of the NYC Dept of Educ, Appeal. No. 14-023. In Application of the NYC Dept of Educ., Appeal. No. 14-023, the SRO explained:“...it is permissible for a school district to contract for the provision of special education related services in limited circumstances and with qualified individuals over whom the district has supervisory control...Moreover, case law also supports a finding that it is permissible for districts to offer parents vouchers to obtain related services in response to a recognized shortage of service providers (see A.L.v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]). As such, when a private school such as [Redacted] utilizes their own salaried employees to provide related services instead of requesting RSA’s from the DOE to pay for those services, the parent is limited to recovering the amount of money that the DOE would have paid for those related services had an RSA been requested and utilized.

Finally, there is no evidence showing that the parent failed in any way to cooperate with the DOE or obstruct its efforts to provide the child with a FAPE. Moreover, the evidence shows that the parent’s income would not enable her to pay for the tuition or the related services at [Redacted] up front.

It is ordered that the DOE shall: 1) directly pay [Redacted] the cost of tuition in the amount of $45,000 ($50,000 minus 10% attributable to religious instruction), 2) the DOE shall pay [Redacted] for related services in an amount not to exceed the cost of providing AL, OT and counseling provided in the frequency and duration provided to this student if RSAs were utilized but in no event in an amount greater than the amounts contained in Exhibit D.2.

Dated: December 24, 2022 Judith T. Kramer Impartial Hearing Officer

PLEASE SEE FOLLOWING PAGE FOR THE APPEAL NOTICE

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or Public School District has a right to appeal the decision to the State Review Officer of the New York State Department of Education under Section 4404 of the Education Law and the Individuals with Disabilities in 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 not 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 to 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 and model forms are available at http:www.sro.nysed.gov.

Directions and forms can also be found in the office of the State Review website: www.sro.nysed.gov/appeals.htm.

EX H I B I T S

A Due process complaint, dated 1/16/22,3pp.

B Parent letter dated 8/17/20,3 pp.

C Parent letter dated 11/17/20,3 pp.

D Contract for 2021,2 pp.

E Payment affidavit dated 11/1/22, 1 p.

F Federal 1040 form, dated 2021,3 pp.

G Program description, unidentified date, 1 p.

H Remote learning plan,2020,4 pp.

I 2021 schedule,1 p.