NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NYSED # 571634 / NYC # 225573
FINDINGS OF FACT AND DECISION
Case Number: [Redacted]
Student’s Name: [Redacted]
School District: N.Y.C. Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [Redacted]
Hearing Requested by: Parent
Dates of Hearing: 06/08/22, 06/28/2, 07/20/22, and 07/27/22
Record Close Date: 08/05/2022
Date of Decision: 08/14/2022
Names and Titles of Persons Who Appeared June 8, 2022
For the Student
[Redacted], Esq.
For the New York City Department of Education
[Redacted], Impartial Hearing Representative
Names and Titles of Persons Who Appeared June 28, 2022
For the Student
[Redacted], Esq.
[Redacted], Private School Supervisor
[Redacted], Parent
For the New York City Department of Education
[Redacted], Impartial Hearing Representative
Names and Titles of Persons Who Appeared July 20, 2022
For the Student
[Redacted], Esq.
For the New York City Department of Education
[Redacted], Impartial Hearing Representative
Names and Titles of Persons Who Appeared July 27, 2022
For the Student
[Redacted], Esq.
[Redacted], Esq.
For the New York City Department of Education
[Redacted], Impartial Hearing Representative
[Redacted], DOE District Representative
BACKGROUND
On March 31, 2021, the Parent, by and through the Parent’s attorneys, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 225573, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”),[1] and the New York State Education Law.[2]
The DPC asserts that the Student was denied a free and appropriate public education (FAPE) for the 2021-2022 school year after the Committee on Special Education (CSE) held an individualized education program (IEP) meeting for the Student on March 24, 2021,[3] and developed an IEP that “recommended... the Student be placed in an special education class consisting of 12 students, one teacher, and one assistant for only 15 periods per week” along with “related services” of counseling, occupational therapy, and speech-language therapy.[4] According to the Parent, the Student “is challenged with significant cognitive, language, behavioral, physical, self-care and sensory deficits and delay[,]” including “maladaptive behaviors” such as that he “cries, yells, runs away and throws objects when he is frustrated” and will “l[ie] on the floor, grab[] from peers... ignore[] teachers’ demands an verbally refuse[] to obey.”[5] The Student attended the program at the Private School for the previous school year, and as a result of the Student’s continuing deficits, “the Student remains in need of his placement in the [Private School] in the full-time extended twelve-month special education classroom to meet all of his academic, social, and behavioral needs, and to avoid regression of the advancements that he made over the school year.”[6] The Student also “require[d]... the development and implementation of a behavioral intervention plan[.]”[7] She therefore “placed the Student in the special education class in the [Private School] for the extended twelve-month 2021-2022 school year” and now seeks “for the Department of Education to directly fund tuition for such private placement” and for the Department to provide for “the development and implementation of a behavioral plan for the 2021-2022 school year.”[8]
PROCEDURAL HISTORY
I was appointed the impartial hearing officer (IHO) over this matter on April 7, 2022. On May 4, 2022, a pre-hearing conference was held before me, and I issued a Pre-Hearing Conference Summary and Order the same day. I scheduled a pendency hearing for May 12, 2022 but was informed by the parties that pendency had been resolved by and amongst themselves.[9] I issued scheduling orders on May 12, 2022, on June 8, 2022, on June 15, 2022, and on July 20, 2022.[10] I also issued orders of extension on May 12, 2022, on June 15, 2022, on June 28, 2022, and on July 28, 2022.[11] The merits hearing was held before me on June 8, 2022, on June 28, 2022, on July 20, 2022, and on July 27, 2022,[12] All of the exhibits were admitted into evidence on June 8, 2022.[13] At the June 28, 2022 hearing, the Parent produced as her witnesses the Private School Supervisor and the Parent herself. At the July 27, 2022 hearing, the Department produced as its witness the DOE District Representative.
FINDINGS OF FACT
The following was not in dispute. The Student is REDACTED years old and, for the 2021-2022 extended school year, was parentally placed at the Private School.[14] The Student is classified by the CSE as a student with a Speech or Language Impairment.[15] The Parent attended the CSE meeting that developed the IEP on March 24, 2021.[16]
The IEP itself states that the IEP team reviewed a “Vineland Adaptive Behavior” test,”[17] which found that the Student ranked in the 9th percentile for “Communication,” that is, “how well [he] listens and understands, expresses himself through speech, and reads and writes”; that he ranked in the 13th percentile for “Daily Living Skills,” that is his “performance of the practical, everyday tasks of living”; and that he ranked in the 4th percentile for “Socialization,” that is, “his functioning in social situations.”[18] In addition, the team reviewed the Student’s then-academic performance. They noted that he “struggles with math skills... writ[ing] numbers appropriately” and that he had “a limited understanding of positioning and... [h]e is unable to follow a simple pattern.” (Ex. 1-2) He was also found to be “below grade level in his reading and writing development skills[,]” including that his “handwriting [wa]s poor, his letters are oversized and sometimes backward[,]” and that “it [wa]s difficult for [him] to answer basic comprehension questions about a text.” (Id.) It describes some of his issues in the classroom, including that “he has poor expressive skills” and “poor attention” and “a hard time listening to verbal information.”
As for the Student’s behavioral functioning, the CSE listed the following. “There is some oppositional behavior towards [the] teacher, he often refuses to do the work” and says, “‘I am not going to listen to the teacher tomorrow!’” (Ex. 1-2) It also describes lesser problematic behavior, such as “us[ing] silly faces and gestures to communicate[,]” (Id.) but also more significant maladaptive behavior, including that he will “throw things” and if he is “frustrated when a task is difficult[,]” he will “cry, run away, and sit on the floor.” (Ex. 1-3)
The “Management Needs” section of the IEP states only that the Student “will be in a small classroom setting with additional assistance in related disciplines. (Id.) The weekly program recommended in the IEP was five periods each of math and English language arts (ELA) in a special education classroom with a student/teacher/assistant ratio of 12:1:1, the same ratio for three periods of social studies and two periods of science, and the related services of counseling, occupational therapy, and speech-language therapy. (See id. at 1-12 to 1-13) Under “Special Factors[,]” the team checked “No” next to “[d]oes the student need... positive behavioral interventions, support and other strategies to address behaviors that impede the student’s learning or that of others” and “No” next to “[d]oes the student need a behavioral intervention plan?” (Id. at 1-4)
The Department’s Case[19]
DOE District Representative The Department produced as its witness the DOE District Representative (DR) who attended the March 24, 2021 IEP meeting.[20] She testified via affidavit and by appearing for cross-examination and further questioning, as follows. She is a certified Clinical Social Worker, and among her duties at DOE are “creating... IEPs... organiz[ing] meetings an liais[ing] with parents towards creating... IEPs, holding IEP meetings, evaluating students, reviewing progress reports,” and “conducting Functional Behavior Assessments and Behavior Intervention Plans[.]”[21] The DR “was responsible for arranging, participating in, and leading the IEP meeting and team”[22] The team “reviewed what the [Private School] presented, which was teacher reports, progress reports, a Vineland test, and his report card.”[23] The CSE recommended a 12:1:1 class because this “setting would provide a ratio of 6:1... with a maximum of 12 students and 2 adults” and because “this was the least restrictive environment capable of meeting [the] Student’s needs and enabling [him] to make progress.”[24] The DR stated, “[i]n my professional opinion, the IEP possessed adequate information to make an appropriate IEP recommendation for [the Student]... us[ing] the teacher progress reports from [the Private School] to understand [the] Student’s function in all areas[.]”[25] The DR’s affidavit describes the Student’s academic deficits, including that he was at a prekindergarten level for ELA and math, (Id. ¶ 26) that “[h]e needed to improve his vocabulary [and] his speech,” (Id. ¶ 20) and that when he wrote, he “does some letter reversal when he is writing[.]” (See id. ¶ 23) It noted other areas of concern as well, such as “improv[ing] his... attention span, concentration, behavior, find motor functioning, and self-regulation.” (Id.) With respect to the Student’s behavior, the DR mentions that the during a lesson, he “may be disruptive to others” and that “he sometimes did not follow instructions of the teacher” and displayed “oppositional behavior towards [the] teacher” and that “he often refuses to do the work.” (Ex. ¶¶ 24, 25, 31, and 32)
The DR also stated that “[m]anagement needs were also discussed and developed... during the IEP meeting” and that they “address [the Student’s] needs for [] frequent redirection, breaks and encouragement, checks for understanding, specialized seating arrangements, refocusing, reteaching, additional time, a revised curriculum, and prompting.” (Id. ¶ 26) On this review, the team decided that the Student “was not placed in a 12-month program because there was insufficient evidence presented to demonstrate regression.” (Id. ¶ 26) Moreover, it was determined “not... appropriate to conduct a” FBA/BIP “because there was no evidence of need” in that “[t]he [S]tudent did not present as a danger... [he] did not pose danger to [him]self or to others... [w]e did not see hostile school behavior or need for conflict resolution with peers.” (Id. ¶ 26)
It was the DR’s further opinion that “[t]he recommendation addresses [the] academic, social, and behavioral difficulties presented”[26] and that the IEP’s “12:1+1 program as well as the related services and goals... were appropriate and reasonably calculated to enable [the Student] the meet [his] goals and make educational progress during the 2021-2022 school year.”[27]
On cross-examination and additional questioning, the DR testified as follows. She never interacted with the Student, but she did meet with the Parent. It was not her team that conducted the February 16, 2020 observation in the Department’s evidence. (See Ex. 7) There was a discussion about the Student’s behavior, but not a discussion about a BIP but they noted that the records included that the Student “will make silly faces” and “there’s some oppositional behaviors towards the teacher” and [he] refuses to do the work” but the teacher at the meeting “did not bring up a need for putting together a behavioral plan nor was there a demonstration of a student being in danger to himself... or others.”[28] She added that “the teacher did not bring up a need for putting together a behavioral plan” but she acknowledged that “it could be the teacher” or “the parent” or a “special ed[ucation] coordinator for the school” who suggested a BIP, but she then added, “I don’t believe that a behavioral plan was brought up because... we only start to have these conversations when there’s a clear danger to self or others.”[29] The Parent did not request a FBA or a BIP. (Id. pg. 165) The conference minutes from the IEP meeting show that the Parent reported that there were “still concerns with academics as well as behavior” but “overall the parent does see the progress that the child has made.” (Id. pp. 165-166) She also recalled that the Parent “agreed with the team’s recommendation.” (Id. pg. 166) She was not familiar with the DOE Placement School that was recommended in the SLL. (Id. pp. 168-169)
Department Exhibits In support its case, the Department submitted the March 24, 2021 IEP, the attendance sheet from the IEP meeting, the meeting’s conference minutes, a March 10, 2021 Notice of IEP Meeting, the PWN, the SLL, a February 16, 2020 classroom observation, and the Private School’s evaluations, assessments, and reports of October 5, 2020 through “3/2021[.]”[30]
Although it is not clear when DOE had all the October 5, 2020 through 3/2021 Private School reports that it offered into evidence, or if it had all those documents when the CSE met for the Student, they contained additional information regarding the Student’s behavior during the 2020-2021 previous school year beyond what was noted in the subject IEP, and even more than the DR acknowledged in her affidavit and live testimony. Since the Department itself entered these documents into evidence, I will highlight them here.
Among the Department’s exhibits was a comprehensive 12 page FBA/BIP that was dated October 29, 2020. In that assessment and plan, it describes the Student’s maladaptive behaviors as follows. He was “[a]ggressive” and “[t]hrows objects forcefully” and “[l]ays on the floor” and engages in “[c]rying” multiple times per day and exhibits “[n]on-compliance[,]” (Ex. Ex. 8-3, and 8-6) which is further detailed behavior where he will “not comply and verbally refuse... cries often throughout the day... will throw objects three times a day but more often will lay on the floor” and “escapes the work area when presented with a demand.” (Id. at 8-7, 8-8, and 8-12) Specifically, with respect to how he will “[t]hrow objects forcefully,” this behavior results in him “destroying the object and hurting others[,]” (Id. 8-9 (emphasis added)) including throwing “with enough force that the object makes physical contact with another person’s body[,] making a sound on contact and/or leaving a mark on the person’s skin[.]” (Id. 8-12) He will also cry up to eight times per day, scream, “no, no, no” or “I don’t want to do it” when “presented with a demand[,]” eight times a day, or “leave the work area without permission as often as three time a day.” (Id. 8-9 and 8-11) The BIP also provides that the “Parent will share progress and challenges she is having with” the Student and that she did, in fact, “report[] that she tried to talk to [the Student] and see what he is doing, but he becomes hostile very quickly[.]” (Id. 8-15)] The Parent’s Case
Private School Supervisor
As their first witness, the parents produced the Supervisor at the Private School. The Supervisor oversaw the 2021-2022 curriculum and all staff including teachers. She explained that the Private School specializes in applying a Common Core curriculum modified for students with learning disabilities.
The Supervisor was familiar with the Student. He had presented to the school with an “extreme language delay.” He was placed in a classroom with an 11:1:1 class ratio. He had difficulty with literacy, decoding, and reading, and in math, he understood basic number concepts but not sequencing, patterns, or abstract concepts.
The Student demonstrated some serious maladaptive behaviors, including destroying property, throwing objects that sometimes hit people, engaging in tantrums, yelling, and grabbing objects from other people. He had difficulty communicating with others, so he relied upon aggressive behavior, a form of self-directed social behavior for interacting with others.
In the Supervisor’s opinion, the IEP that DOE developed “did not match up” with the Student’s issues. The Private School, however, provided an academic program that were tailored to the Student’s maladaptive behaviors. Because of the smaller classroom, the teacher could provide the Student with more attention and access before he could display problem behavior. They built skills and trust and reinforced what he needed to stay focused. Counseling allowed him to engage more and improve on him impulses. All of this translated into a lessening of his display of poor behavior.
Academically, the Student progressed over the course of the school year. His focus and attention improved “tremendously.” The structured environment allowed him to learn more. He is not yet on-grade level, but he acquired a better vocabulary, and communicated his needs and wants and challenges much more this year. While counting to 20 was an accomplishment in the past, he can now count to 100. His reading comprehension has improved as well. Whereas in the past he had difficulty identifying letters, he can now recognize letters that he could not before.
On cross-examination and further questioning, the Supervisor testified as follows. The schedule from Monday through Thursday includes a description of the related services of counseling, occupational therapy, and speech language therapy, which would be provided at different times during the week by the Private School’s fulltime service providers. (See Ex. F; see also Tr.2 pp. 100, and 103-107) The school also offered a religious component, which took place during the first 30 minutes of school Monday through Thursday.[31] There is no religious instruction on Fridays, and there was no religious instruction or religious identity or component incorporated into any assignments in any of the Student’s other classes. (Id. pg. 112) There is a Rabbi who leads the REDACTED class, but first graders such as the Student “do[] not usually participate in a prayer service[.]” (Id. at pp. 107-108) As she understood it, “REDACTED [class] is kind of [an] accumulation of some cultural background music” and “some background information that is left to the Rabbi to decide what he would like to present to the class for that day.” (Id. at pp. 108) She could not “answer more questions on that” as it “[wa]s not [her] area of expertise.” (Id.) The Student’s 2021-2022 school year began on July 1, 2021, and it ended on June 18, 2022. (Id. pp. 116-117) His progression was tracked the during the entirety of this time period. (Id.)
Parent
Finally, the Student’s parents testified, as follows. She sent two letters to DOE, on July 1, 2021, and on August 16, 2021, requesting that the Department evaluate and provide her son, the Student, with a twelve-month extended program in a public school placement for the 2021-2022 school year, and the Department did not respond to either letter. (Id. pp. 120-121) She did not receive a public school placement from the Department or a “procedural safeguard[s] notice.” (Id. pg. 121) The household annual income was $63,000.00 and they received insurance from Medicaid. (Id. pg. 121)
On cross-examination and further questioning, the Parent testified as follows. She received the enrollment contract from the Private School in July of 2021, but she did not sign it until August 30, 2021. (See id. pg. 126) She knew she wanted him to go to school there by then, and, in fact, he had started on July 1, 2021, while August 30, 2021 was when she brought the contract back to the school. (See id. pp. 126-127) The tuition was not refundable, but she “do[es] whatever [she] need[s] for [her] son.” (Id. pg. 128) She knew that if the City did not pay for the tuition, that she would be responsible for it. (See id. pg. 130) She did not visit a public school offered by the Department, (Id.) but Attorney I pointed out that she had already testified she did not receive a placement offer. (Id.)
Parent’s Exhibits The Parent also submitted documentation in support of their position, including the DPC; a prior findings of fact and decision; the IEP; the Private School’s enrollment contract, program description, and curriculum; an affidavit of tuition payment; the Private School’s curriculum schedule; the Student’s attendance; assessments, plans and reports from the Private School for the 2021-2022 school year; the Parent’s first TDN; and the Parent’s second TDN.[32]
In the Private School’s program description, it describes itself as being “established to education children with special needs by providing the finest special education techniques in a comprehensive day school program.” (Ex. D-4) Through the provision of “[d]irect teaching” and a “[l]ow student-teacher ratio” and “[c]learly structured, multisensory experience in all subject areas” and “a physical setting in which distractions are minimized and staying on task is promoted[,]” the school strives “to build in each of [its] students a strong sense of self, and coach them to become active learners who assume responsibility for their own learning as well as understand and manage their learning disabilities.” (Id. at D-4 to D-5) The Private School also incorporates a religious aspect, whereby “students pray every day” and learn “the lyrics and tunes” of religious songs “[a]s part of our music program[.]”
Over the course of the first two of three tracking periods for the school year, the Student’s First Grade Report Card listed improvements from a “1” (“Emerging... [d]oes not demonstrate an understanding of concepts/skills”) to a “2” (“Developing... [n]ot yet consistent in demonstrating understanding of concepts”) in multiple core subject markers, including the ability to “[r]ecognize the distinguishing feature of a sentence” and “[s]egment spoken single-syllable words into their complete sequence of individual sounds” and “[r]ead grade-level text orally with accuracy, appropriate rate, and expression” and “answer questions about key details in a text” and “[d]escribe characters, settings, and major events in a story” and “[a]sk and answer questions about what a speaker says in order to gather additional information or clarify [what] is not understood” and “[r]elate counting to addition and subtraction” and “[a]dd and subtract within 20” and “[d]etermine the unknown whole number in an addition or subtraction equation relating three whole numbers” and “order three objects by length [or] compare the length of two objects indirectly by using a third object” and “[c]ompose two-dimensional shapes [such as] rectangles, squares, trapezoids... or three dimensional shapes [such as] cubes, right rectangular prisms, right circular cones, and right circular cylinders[.]” (Id. at H-26 to H-32)
As for the Student’s functional behavior, a new FBA was developed and dated August 24, 2021, (See Ex. H-1 to H-7) and a BIP dated September 2, 2021. (See id. at H-12 to H-20) Since the FBA/BIP of the previous year, the Student’s behavior had shown some improvement, including crying only twice per day, and throwing objects only once per day, (Id. at H-5) whereas the previous school year it was reported that he would cry up to eight times per day, (see Ex. 8-9 and 8-11) and “throw objects three times a day[.]” (Id. at 8-9 and 8-12) His counselor noted in December 2021 that while the Student “still struggles with listening to authority and enforcement of the rule[s],” he “has shown an increase in participation in activities such as sports and recess” and the counselor has provided the Student with “choices in therapy session to attain a sense of control in a healthy[,] balanced way.” (Ex. H-24)
The enrollment contract states, in relevant part, that “[e]nrollment... is an unconditional commitment for payment of the full tuition of the school year without any right to deduction, credit, and prorated apportionment or refund for any reason[.]” (Ex. D ¶ 3) It further holds, “On account of the Parent’s financial status... [and] financial hardship, the school will permit enrollment... prior to payment[.]” (Id. ¶ 6) It goes on to state that “however, [as] the [P]arent shall remain responsible for the full payment of tuition in accordance with the[se] term[s]... [where] Parent represents... the Student [is] not receiving a [FAPE]... [and] has initiated, or intends to initiate due process proceedings[.]” (Id.) The “Parent further represents and acknowledges that... Parent is relying – at their own risk – on the receipt of the tuition money from the Student’s school district[.]” (Id.)
With respect to the tuition amount and its payment, the Private School’s affidavit of payment states that “[t]he total contracted annual tuition rate, for twelve months... is $120,000.00 for the school year of July 1, 2021 to June 17, 2022.” (Ex. E-1) It further states that, as of the date of notarization of May 21 (or 31), 2022, the “total amount received” was “$0.00” and the “total amount owed” was “$120,000.00[.]” (Id. at E-2 (emphasis removed))
Closing Arguments
DOE’s Closing In its closing, the DOE asserts the following. The Department established a Prong 1 case. The Student was provided a FAPE, and the Parent failed to meet her burden to show that the unilateral placement at the Private School was appropriate. The March 24, 2021 IEP was reasonably calculated to enable the child to obtain meaningful educational benefits. The chosen services of a 12:1:1 program plus related services placed the Student in the least restrictive environment. The team reviewed teacher progress reports and listened to the Parent’s concerns. Moreover, the Parent agreed to the program recommended in the IEP. As for the Student’s behavior, “we do not see presentation and evidence of elopement, daily elopement, refusal to obey a teacher up to six times a day or crying twice a day” or “throwing objects[.]” With respect to Prong 2, the Parent was asking to receive payment for the same 12:1:1 setting and related services at the Private School as were manded in the IEP. Parents allege that the program needed to be for a twelve-month extended school year in order to avoid regression, but the Parent did not present evidence of regression to the IEP team or at the hearing. Because the Student attended kindergarten at the Private School, it cannot be said that he would not have made meaningful progress under the IEP for first grade.
Finally, the equities favor the Department because the Parent never genuinely intended to place the Student in a public school. The Parent did not cooperate with the CSE; she did not provide them with information regarding regression if there was no extended school year, or information regarding the need for a BIP. In addition, the Parent had already enrolled the Student for the previous school year and during the summer, and she did not visit the DOE Placement School.
Parent’s Closing With respect to Prong 1, the Department did not meet its burden of proof. It did not explain the appropriateness of the program it recommended, and it failed to demonstrate that it provided a school placement. The SLL was in its evidence but there is no proof that the parent actually received it. Moreover, the IEP failed to adequately address the Student’s extensive academic, social, and behavioral challenges. Offering only 15 periods per week of special education was not sufficient to address his deficits, and the Department offered nothing regarding what the Student should do with respect to those deficits when he was not in a special education classroom.
A BIP was in effect at the time the CSE met to develop the Student’s IEP, and the Department’s witness acknowledged that she did not know about the BIP, and the only document the team reviewed was a classroom observation report. An extended school year in 12:1:1 classroom setting was necessary to address the Student’s significant behavioral issues.
With respect to Prong 2, the Parent presented evidence that it was an appropriate program for the Student. It was a customized plan to meet his needs, and it was calculated to result in progress, as shown by the actual progress the Student made, both academically and behaviorally.
As for equitable considerations, the Parent sent the Department a TDN to remind the Department of its obligation to designate an appropriate placement for the Student. Under the fact of this case, it would be inequitable to reduce the funding of the Student’s tuition expenses on the basis of the date of the TDN, where the Department did not send the Parent a procedural safeguards notice (PSN), the purpose of which is to give notice to the Parent of her obligations, including sending a TDN. The only reference to the PSN is mention of a website in the PWN, and it is insufficient to not mail a printed PSN to parents. Here the Parent testified that she never received a PSN and the DOE presented no evidence that it sent her one. There is also no further indication that the Parent failed to cooperate with DOE or that she prevented the Department from fulfilling its obligations.
Finally, the Parent demonstrated that she cannot afford to the pay the tuition at the Private School and she therefore asks that the school be funded for the 2021-2022 school year in the amount of $115,000.00.[33]
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afford them will be reflected in the analysis. As for witness credibility, I found no reason to doubt the veracity of any witness, with respect the facts they related or to their respective expert opinions, except as to the DR’s affidavit testimony.
I do not find the DR’s affidavit credible for three reasons. First, it is internally inconsistent. It highlights as positive a “classroom observation” stating “that [the Student] followed the teacher’s instructions” but it another place it asserts that “he sometimes did not follow instructions of the teacher” and that he displays “oppositional behavior towards [the] teacher” and that “he often refuses to do the work.” (Ex. ¶¶ 25, 31, and 32)
Second, the affidavit is incongruent with the IEP it references. The DR’s affidavit includes that “[m]anagement needs were also discussed and developed... during the IEP meeting” and that they “address [the Student’s] needs for [] frequent redirection, breaks and encouragement, checks for understanding, specialized seating arrangements, refocusing, reteaching, additional time, a revised curriculum, and prompting.” See id. ¶ 26. None of those important supports, however, are actually found in the IEP’s Management Needs section (which states only that “[the Student] will be in a small classroom setting with additional assistance in related disciplines”). I find it difficult to believe that all of those supports listed in the affidavit would have been discussed at the meeting and then dropped in the final IEP, so I do not find that statement in affidavit accurate.
Third – and certainly not the least important factor – is that the affidavit states that “[t]he team did not find it appropriate to conduct” a FBA/BIP “because there was no evidence of need.” (Id. ¶ 26, emphasis) The affidavit defends this position: “[t]he [S]tudent did not present as a danger... [he] did not pose danger to [him]self or to others... [w]e did not see hostile school behavior or need for conflict resolution with peers.” (Id. ¶ 26) The affidavit makes no mention, however, of the serious behavior problems that were included in the IEP, including that he would throw objects, and cry, and run away, and lie or sit on the floor when a task was difficult or when he did not get what he wanted. (Ex. 1-3) While it is not clear how much of the Department’s hearing exhibits were available to the CSE at their March 24, 2021 meeting for the Student, (See Ex. 8) the Private School records the Department placed into evidence clarified that the Student’s throwing was much more serious, in that he would throw objects hard enough for them to break, or hard enough to leave marks on skin when his thrown objects made contact with others. The affidavit’s statements downplaying the Student’s behavior are contradictory to at least some of the evidence the CSE had before it when it developed the IEP, representing a third and important reason to limit the affidavit’s trustworthiness. On this record, therefore, I find that the affidavit lacks veracity, and I therefore do not credit it.
LEGAL FRAMEWORK
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[34] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[35] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[36]
The U.S. Supreme Court has determined that a board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) there is no FAPE, in that the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[37] These three prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.[38] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.[39] The standard required is a preponderance of the evidence.[40]
As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.[41] Moreover, the law does not require the CSE to adopt the parent’s preferred placement.[42] Even so, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[43] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[44] and then provides for the utilization of sufficient special education services,[45] and then is properly implemented.[46] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[47] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[48]
FAPE is also implicated by the degree to which the CSE recognizes and addresses problem behaviors that impede the Student’s ability to learn or the ability of others to learn. A FBA must be developed “for a student whose behavior impedes his or her learning or that of others[,]”[49] and a BIP must be developed if “the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implementing... interventions[.]”[50] The courts have held that where a CSE fails to develop a FBA or BIP when indicated, or it otherwise “fail[s] to address the root causes of [the Student’s] behavioral deficiencies, we are unable to determine whether the IEP[] adequately identified... behavioral impediments and whether the strategies formulated to address those behaviors were appropriate.”[51] Moreover, the NYS State Review Office (SRO) has determined that where a student shows maladaptive behaviors, including “eloping” and “crying” and “tantrums,” and “[t]he district failed to present the documents on which the CSE relied and, therefore, cannot demonstrate that, based on the information available to the CSE, [that] the student’s behaviors were not so intensive as to warrant positive behavioral interventions or a BIP[,]” then “the district failed to meet its burden of proving that... the IEP sufficiently addressed the student’s behavioral needs... [and, a]ccordingly, on this basis, the district denied the student a FAPE for the... school year.”[52]
If the Department proves that the recommended program in the IEP offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.[53] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”[54] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.”[55] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.[56] In fact, no one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[57] With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable,[58] whether the parents failed to make their child available for evaluation by the district,[59] or whether actions taken by the parents were unreasonable.[60] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needs-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent of the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.[61] “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”[62] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement.[63]
Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.[64] It is an important step, because the notice “gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections – all before the parents enroll their child in a private school and file a due process complaint.”[65] In a case where "parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement,"[66] as the parents of students enrolled in private school are not exempted from ten-day notice requirements.[67]
It is against this backdrop that I analyze the admitted evidence, including the Parent’s unilateral placement and equitable factors. If the factors weigh in favor of the Parents, an award is warranted, including any related services requested. In considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[68] with the only limitations being that the remedy “be appropriate in light of the purpose of the Act,”[69] and that damage awards are not available under the IDEA.[70]
ANALYSIS
Prong 1 – FAPE The Student is classified by the CSE as a student with a Speech or Language Impairment.[71] The IEP the Department relied upon in making its recommendation for the 2021-2022 school year was developed on March 24, 2021.[72] By the time the Department issued its recommendation in the PWN and SLL, both dated August 24, 2021,[73] the Parent had already sent them a TDN informing DOE that she intended to place her son at the Private School for a twelve-month school program.[74]
The Department contends that the IEP met the standards of a FAPE. Upon my review of the document, while I agree that it contained all the required information, including a statement of the student's present levels of academic achievement and functional performance, annual goals, recommendations and other options considered,[75] I cannot conclude that the Department adequately addressed the Student’s behavioral issues, and that its recommendations were thus not designed to enable the Student to make progress and that they did not provide appropriate special education and services.[76]
The IEP includes statements such as, “There is some oppositional behavior towards [the] teacher, he often refuses to do the work” and says, “‘I am not going to listen to the teacher tomorrow!’” (Ex. 1-2) It includes even more significant maladaptive behavior, including that he will “throw things” and if he is “frustrated when a task is difficult[,]” he will “cry, run away, and sit on the floor.” (Ex. 1-3) Despite these issues, and despite there being no indication in the IEP that the Student’s 2020 FBA and BIP were reviewed by the CSE, the IEP team checked “No” for the boxes that ask if the Student “need[s]... positive behavioral interventions, support and other strategies to address behaviors that impede the student’s learning or that of others” and “No” for “[d]oes the student need a behavioral intervention plan?” (Id. at 1-4)
Moreover, the severity of the Student’s behavior was downplayed a number of times. In the IEP meeting minutes, the Department first notes only that the Student “uses silly faces and gestures[.]” (Ex. 3-2) It goes on to note that “[t]here is some oppositional behavior, (Ex. 3-3) but again mentions nothing about whether anything needed to be done to address or assess the Student’s behavior. Second, although I discredited much of the DR’s testimony, I note that her affidavit defended the decision to not address the Student’s behavior, finding it “not... appropriate to conduct a” FBA/BIP “because there was no evidence of need” (emphasis added), and defining “needs” as “[t]he [S]tudent did not present as a danger... [he] did not pose danger to [him]self or to others... [w]e did not see hostile school behavior or need for conflict resolution with peers.” (Id. ¶ 26) This is directly contradicted by the evidence of severe behaviors, including throwing objects hard enough that they break and leave marks on others.
The CSE’s above conclusions were made on what the DR described as “the IEP possess[ing] adequate information to make an appropriate IEP recommendation for [the Student]... us[ing] the teacher progress reports from [the Private School] to understand [the] Student’s function in all areas[.]”[77] This is not, however, a statement that the FBA or BIP in evidence were actually reviewed by the team. In fact, the only document listed in the PWN as having been reviewed by the CSE was a February 16, 2020 classroom observation, which stated nothing about the above significant behaviors.[78] Thus it is not clear whether the CSE had the Private School’s FBA and BIP in evidence at the time of its meeting, or if it did have those documents, it failed to review them or give them sufficient weight.
If the CSE did not have the then-existing FBA and BIP, it would have been incumbent upon them to investigate and recognize that the Student’s behaviors required at least a FBA.[79] IF it did have those documents, it woefully failed to explain why interventions and related goals were not included in the IEP. The Second Circuit has held FAPE implicated when the CSE “fail[s] to address the root causes of [a student’s] behavioral deficiencies” and it is unclear “whether the IEP[] adequately identified... behavioral impediments and whether the strategies formulated to address those behaviors were appropriate.”[80] Moreover, in a case similar to the one before me, it was held that “the district denied [a] student a FAPE” after the student displayed maladaptive behaviors, including “eloping” and “crying” and “tantrums,” and “[t]he district failed to present the documents on which the CSE relied and [it] therefore[ could]not demonstrate that, based on the information available to the CSE, [that] the student’s behaviors were not so intensive as to warrant positive behavioral interventions or a BIP[.]”[81] The Student here arguably displayed even more serious behavior, including throwing objects, crying, running away and screaming at teachers. On this record, therefore, where the Department failed to order at least a FBA, or where it may have had access to a FBA and a BIP in its own records (that were offered into evidence at this hearing), but did not incorporate them or act on them, I find that the Department’s decision to not order a new FBA or BIP, or to include behavioral supports that recognized the significance of the Student’s deficits, constituted a denial of FAPE.
Given that the Department has failed to provide a FAPE with respect to how it treated the Student’s behavioral needs, I need not address whether the program the Department recommended would have adequately addressed the Student’s academic, social, and emotional requirements. I note, however, that to the extent the Department offered a 12:1:1 classroom setting, which is similar to that offered by the Private School, and despite the CSE’s assertion in the IEP that the Student’s “[f]amily believe[d] that [the S]tudent will benefit from [a] 12:1:1 setting with support[s,]” (Ex. 5-2) this does not mean that the family agreed to only 15 periods per week of the 12:1:1 program as the Department ultimately offered, in a general education setting. In fact, it would be hard to conclude that the decreased frequency of special education would have met the Student’s needs, especially in light of how the Department refused to recognize the existing FBA and BIP from 2020 – or order a new FBA and BIP – and the degree to which this would have left the Student vulnerable in a general education setting without the behavioral supports he clearly required.
I also find that the Department did not establish that the Student would receive a FAPE in a ten-month school year. Under State rules, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression[,]"[82] which is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year."[83] As I have already found, the Department failed to either review or otherwise sufficiently address the Student’s serious behavioral challenges. In failing to consider them, and the effect they had on his ability to learn, or his ability to maintain developmental levels when not in school, the Department also failed to sufficiently consider whether the Student would regress without a twelve-month program. Moreover, the Parent requested a twelve-month program in both of her TDNs sent to DOE,[84] wherein she informed the Department of the Student’s need for consistency in his education and that he undergoes significant regression when his is not in school, and the Department did not respond. I find that a twelve-month extended school year was appropriate for the Student.
On this record, therefore, I conclude that the IEP was deficient in that it failed to address the Student’s significant behavioral deficits that impeded the ability for him and others to learng, that it was not “reasonably calculated to provide some ‘meaningful’ benefit”[85] and that the DOE thus failed to prove, by a preponderance of the evidence, that it offered the Student with a FAPE.[86]
Prong 2 – Appropriateness of Unilateral Placement
Having determined that the Department did not offer the Student a free and appropriate education, I must next turn to the Parent, who “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[87] A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a [disabled] child.’”[88] The parents rejected the recommendation of the CSE and instead enrolled the Student in the Private School. They offered into evidence the testimony of the school’s Supervisor, the school’s class schedule, the Student’s attendance record, his “Progress Reports,” and the contract and payment information.[89] Consistent with the description of the Student’s needs and supports recommended in the IEP, the Private School is a dedicated full-time special education school for students with disabilities. Through the provision of “[d]irect teaching” and “[l]ow student-teacher ratio” and “[c]learly structured, multisensory experience in all subject areas” and “a physical setting in which distractions are minimized and staying on task is promoted[,]” the school strives “to build in each of our students a strong sense of self, and coach them to become active learners who assume responsibility for their own learning as well as understand and manage their learning disabilities.” (Id. at D-4 to D-5) The Private School also incorporates a religious aspect, whereby “students pray every day” and learn “the lyrics and tunes” of religious songs “[a]s part of our music program[.]” The Private School Supervisor testified how the small classroom and the focused, individualized approach to teaching would address his difficulties in literacy, decoding, and reading, and in math. The School also recognized the Student’s maladaptive behaviors, as it had developed the FBA and BIP. The Student was destroying property, throwing objects that sometimes hit people, engaging in tantrums, yelling, and grabbing objects from other people. He had difficulty communicating with others so he relied upon aggressive behavior, a form of self-directed social behavior for interacting with others. The Private School’s program was tailored to the Student’s maladaptive behaviors. Because of the smaller classroom, the teacher could provide the Student with more attention and access before he could display problem behavior. They built skills and trust and reinforced what he needed to stay focused. Counseling allowed him to engage more and improve on him impulses. All of this translated into a lessening of his display of poor behavior. In fact, a new FBA and BIP were developed on August 24, 2021, (See Ex. H-1 to H-7) and September 2, 2021, (See id. at H-12 to H-20) respectively, and they demonstrated some improvement, including that crying went down from eight times per day to twice per day, and his throwing went down from three times per day to once per day. (See Ex. H-5; see also Ex. 8-9, 8-11, and 8-12) His counselor noted further that while the Student “still struggles with listening to authority and enforcement of the rule[s],” he “has shown an increase in participation in activities such as sports and recess” and the counselor has provided the Student with “choices in therapy session to attain a sense of control in a healthy[,] balanced way.” (Ex. H-24)
Academically, the Student progressed over the course of the school year. His focus and attention improved “tremendously,” and the structured environment allowed him to learn more. This was corroborated by the Student’s report card, which demonstrated that he improved from a
“1” (“Emerging... [d]oes not demonstrate an understanding of concepts/skills”) to a “2” (“Developing... [n]ot yet consistent in demonstrating understanding of concepts”) in many ELA and math markers. (Ex. H-26 to H-32) The assessments made of the Student in August of 2021 showed that he was improving in other areas as well, including “some progress towards his goals[,]” such as “sequenc[ing] a series of 3-4 pictures, with some prompting, in 2/4 trials” and that “[h]e can also respond to simple ‘wh’ questions on 3-4 sentence paragraphs or short narratives, with some prompts, with 50% accuracy” and “retell a simple narrative... with prompting, with 50% accuracy” and “follow 1-2 step oral directions... with 50% accuracy.” (Ex. 8-26)
“[E]vidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.”[90] It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.”[91] Given the degree to which the Student’s diagnoses caused him to struggle when learning, and the extent of his maladaptive behaviors, all of which were addressed by the Private School’s comprehensive program and supports that have contributed to him improving academically and behaviorally, the Private School clearly meets this standard. The school provides the exact type of small setting with frequent 1:1 and small group support, and constant approach to addressing his maladaptive behaviors, which translates to learning. On this record, therefore, I conclude that the program chosen by the Parent is appropriate to meet their child’s needs,[92] and that the Prong 2 of the Burlington/Carter analysis is satisfied.
Prong 3 – Equitable Considerations
Finally, I must weigh pertinent equitable factors. I find on this record that the Parent never obstructed and that she, in fact, fully cooperated with the DOE during the entirety of the IEP process, which is “[i]mportant to the equitable consideration[s]” analysis[93] because equities can generally favor the parents when they cooperate in good faith and properly notify the district of the unilateral placement.[94]
Here, the Parent attended the IEP meeting on March 24, 2021,[95] and expressed her concerns to the CSE. On July 1, 2021, the Parent informed the Department of her intent to send the Student to the Private School for the twelve-month school year on July 1, 2022. While this denied the DOE an opportunity to address her concerns for ten days before the school year began, I cannot find this an equitable factor against the Parent where (1) the Department had not sent the Parent a recommended placement since the March 24, 2021 IEP meeting, (2) it would still not send that recommendation until August 4, 2021, and (3) the only PSN information sent to the Parent was in the PWN sent almost two months after the Parent’s TDN.
Moreover, and to the extent the IEP minutes indicate that the Parent agreed to the recommended program, she was likely unaware at the time that the team had not been considering all of the maladaptive behavioral information that it had (or should have had) before it, and she was also free to compare and contrast what the IEP and the Private School offered before DOE mailed her its PWN and SLL. By the time she determined that the Student belonged ta the Private School, the twelves-month extended school year was starting and she still had not received a placement recommendation from DOE. I find these factors weigh in favor of the Parent, not the Department.
With respect to the contract, she did not sign it until August 10, 2021, which is after the DOE had failed to give her a placement by July 1, 2021, when the Student had to begin school. She also credibly testified that she was willing to take the risk that she might have to pay the entirety of the tuition if she lost her IDEA claim. There is no argument or evidence that there was any fraud or collusion,[96] or that the parents failed to make their child available for evaluation by the district,[97] or that any of their actions were unreasonable,[98] or that the cost of the Private School was unreasonable.[99] Finally, I found the Parent credible, including her testimony regarding her household income. I find this sufficient to determine that the Parent had an inability to pay, and that any tuition award should be paid directly to the Private School.
Notwithstanding the overall reasonableness of the tuition, I must recognize that reimbursement is not warranted for religious instruction, for which the Department is not responsible to provide. To that end, I note two places where religious instruction was indicated in the Student’s schedule. First, the Supervisor acknowledged that the 30-minute “REDACTED” class held Monday through Thursday was a religious component of the school. She believed that this was the extend of that component, but she also acknowledged that it was not her area of expertise. The Private School’s Curriculum description, however, states, in part, that students learn “the lyrics and tunes” of religious songs “[a]s part of our music program[.]” Given that I was provided with no evidence as to whether all, most, or some of the music class (also 30 minutes for four days per week) is religious in nature, I cannot credit any of it as non-religious, and I consider 60 minutes per day, Monday through Thursday, as a religious component of the program.
Taken in their totality, the equitable considerations favor the Parent and do not favor the Department. I find that the third prong of the Burlington/Carter standard has been established for the Parent, and that remedies are therefore warranted in this case.
Remedies
Tuition The parents offered into evidence proof that the cost of tuition for the 2021-2022 school year was $120,000.00, of which the parents had not paid any amount. Per my Prong 3 analysis above, I am reducing the award here by the amount of the Student’s week devoted to a religious component, which here I find to be 60 minutes per day, Monday through Thursday. This translates to a reduction of $15,118.08,[100] rendering the total award to be $104,881.92. Accordingly, I find the Parent is entitled to be reimbursed in that amount.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall directly pay to the Private School, an amount equal to its aggregate tuition for the 2021-2022 school year, less the amount I have determined is designated as a religious component, in the amount of $104,881.92; and it is further
Ordered, that if the Parent does not submit to the DOE a 2022 Functional Behavioral Assessment before its next meeting of the CSE for the Student, the CSE shall order a new Functional Behavioral Assessment and, if the CSE deems it warranted, a Behavioral Implementation Plan as well.
So Ordered.
Dated: August 14, 2022
Richard J. Zeitler, Jr. (signed electronically)
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 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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Individualized Education Program
03/24/2021
19
2
IEP Meeting Attendance
03/24/2021
1
3
Conference Minutes
03/24/2021
3
4
Notice of IEP Meeting
03/10/2021
5
5
Prior Written Notice
08/04/2021
13
6
School Location Letter
08/04/2018
3
7
Classroom Observation
02/16/2020
2
8
Progress Reports
10/05/2020
31
(Affidavit)
[Redacted]
06/24/2022
4
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Request for Due Process Hearing and Notice of Appearance
03/30/2022
8
B.
Findings of Fact and Decision (Case No. 207744)
03/28/2022
14
C.
Individualized Education Program
03/24/2021
20
D.
Student Contract, Program Description, and Curriculum
08/30/2021
13
E.
Affirmations regarding Tuition Breakdown and Payments
05/31/2022
2
F.
Curriculum Schedule
2021-2022
1
G.
Student Attendance
2021-2022
1
H.
Assessments, Plans, and Reports
(various*)
32
I.
Ten Day Notice from Parent to DOE
07/01/2022
2
J.
Follow Up Ten Day Notice from Parent to DOE
08/16/2021
2
* The documents in Ex. H are dated August 24, 2021 (Functional Behavior Assessment), September 9, 2021 (Treatment Plan), September 2, 2021 (Behavioral Intervention Plan), October 28, 2021 (Teacher’s Progress Report), December 2021 (School Counselor Progress Report), and a Report Card (undated).
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Pre-Hearing Conference Summary and Order
05/04/2022
2
II.
Order of Extension
05/12/2022
1
III.
Order of Extension 2
06/15/2022
1
IV.
Order of Extension 3
06/28/2022
1
V.
Order of Extension 4
07/28/2022
1
VI.
Scheduling Order
05/12/2022
3
VII.
Scheduling Order 2
06/08/2022
2
VIII.
Scheduling Order 3
06/15/2022
5
IX.
Scheduling Order 4
07/20/2022
2
X.
Pendency Agreement
05/12/2022
2
Footnotes
[1] See 20 U.S.C. § 1415(f).
[2] See Educ. Law §§ 4404(1) and 3602-c(2)(b)(1).
[3] See Ex. A-3; see also Ex. 1 and Ex. C.
[4] Ex. A-3.
[5] Ex. A-3 to A-4.
[6] Ex. A-3.
[7] Ex. A-4.
[8] See Ex. A-4 to A-5.
[9] See IHO Exs. VI and X. The agreement covers the ten-month school year, while this decision will determine the issue of a twelve-month school year, as requested by the Parent.
[10] See IHO Exs. VI and VII.
[11] See IHO Exs. II, III, IV, and V.
[12] In this decision the transcript of the June 8, 2022 hearing will be referred to as “Tr.1,” the transcript of the June 28, 2022 hearing will be referred to as “Tr.2,” the transcript of the July 20, 2022 hearing will be referred to as “Tr.3,” and the transcript of the July 27, 2022 hearing will be referred to as “Tr.4.”
[13] See Exs. 1 through 8, and A through J. The Department objected to Ex. B, but I admitted it over their objection.
[14] See Ex. A.
[15] See Ex. 1-1.
[16] See id. at 1-19.
[17] See id. at 1-1; see also Ex. 8-5, which defines “[t]he Vineland-3” as “a standardized measure of adaptive behavior – the things that people do to function their everyday lives.”
[18] Exs. 1-1 and 8-5.
[19] The parties agreed that the Parent’s witnesses would testify first, due to scheduling issues; however, I am reciting the evidence in this decision in the order of the parties’ respective burdens of proof.
[20] See DR Affidavit ¶ 8.
[21] See id. ¶¶ 1 and 6.
[22] See id. ¶ 8.
[23] See id. ¶ 10.
[24] See id. ¶¶ 16-17.
[25] See id. ¶ 12.
[26] Id. ¶ 16.
[27] Id. ¶ 33.
[28] Tr.4 pg. 163.
[29] Id.
[30] See Exs. 1 to 8, respectively.
[31] See Ex. F; see also Tr.2 pp. 100-102, and 107-108.
[32] See Exs. A through J.
[33] This appears to be a reference to the second page of the Private School’s affidavit of payment, which breaks down the tuition owed as “$115,000” for classes and related services, and “$5,000” for “REDACTED Studies.” Ex. E-2.
[34] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[35] See 34 C.F.R. § 300.13.
[36] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[37] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[38] See id.
[39] See NYS Educ. Law § 4404(1)(c).
[40] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[41] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[42] See S.Y. and R.Y. v. New York City Bd. of Educ., 15 Civ. 6277 (AT), 2016 WL 5806859, at 9 (SDNY Sept. 28, 2016).
[43] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[44] See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii].
[45] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[46] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[47] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[48] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[49] NYCRR 200 § 200.4(b)(1)(v).
[50] NYCRR 200 § 200.22(b)(1).
[51] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 114 (2016).
[52] Application of a Child with a Disability, Appeal No. 22-007.
[53] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[54] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007).
[55] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[56] See id. at 364 (citing Carter, 510 U.S. 7 at 14).
[57] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[58] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[59] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[60] See id.
[61] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[62] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[63] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[64] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
[65] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[66] Id.
[67] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[68] See Doe v. East Lyme, 790 F.3d at 454.
[69] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[70] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[71] See Ex. 1-1.
[72] See id. at 1-19.
[73] See Exs. 5 and 6.
[74] See Ex. I.
[75] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[76] See id; see also 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v), and Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[77] See id. ¶ 12.
[78] See Ex. 5-2. The “Classroom Observations” listed on that page is misdated February 4, 2020, or there were other observations that the Department did not place into evidence.
[79] NYCRR 200 § 200.4(b)(1)(v).
[80] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 114 (2016).
[81] Application of a Child with a Disability, Appeal No. 22-007.
[82] NYCRR 200.6(k)(1); see also 8 NYCRR 200.1(eee).
[83] NYCRR 200.1(aaa).
[84] Exs. I and J; see also Tr.2 pp. 120-121.
[85] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[86] Because I am finding that the IEP did not substantively provide a FAPE, I need not entertain the Parent’s assertion in the DPC that FAPE was denied for procedural deficiencies.
[87] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).
[88] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[89] See Tr.2 pp. 71-117; see also Exs. D, E, F, G, and H.
[90] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[91] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[92] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[93] See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[94] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[95] See Ex. 1-19.
[96] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[97] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[98] See id.
[99] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[100] Notwithstanding the Private School’s description of the religious component as only $5,000.00 in its affidavit of payment, I find that the Student’s schedule shows that there is 1,905 minutes of school per week at the Private School (7 hours Monday through Thursday, and 3.75 hours on Friday), and that 240 minutes (4 hours in total) per week is religious in nature, which is 12.5984%, and that percentage of $120,000.00 is $15,118.11.