New York City Department of Education, Impartial Hearing Decision

NYSED # 571718 / NYC # 225636

FINDINGS OF FACT AND DECISION

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 09/22/2022

Hearing Officer: Mitchell Regenbogen, Esq.

[Redacted], a minor, by and

Through his Parent, [Redacted]

FINDINGS OF FACT AND

DECISION AND ORDER

Petitioner

-against- Case No. 225636

Mitchell Regenbogen

Hearing Officer

New York City Department of Education,

Respondent.

PROCEDURAL HISTORY

On September 8, 2022, I completed an impartial hearing by telephone in Brooklyn, New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Parent by a due process complaint filed April 4, 2022, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2020-2021 and 2021-2022 school years. At the conclusion of the hearing the Parent requested tuition payment for the Student’s unilateral placement at the [Redacted] Academy ([Redacted]) for the 2020-2021 and 2021-2022 school years, an order that the District complete the evaluations ordered pursuant to an Interim Order issued herein on June 29, 2022, and an order that the District convene a meeting of the Individualized Education Program (IEP) team to consider the evaluation results. See Parent’s post-hearing brief.

I was appointed as impartial hearing officer on June 10, 2022. Hearings were held/scheduled on June 16, 2022, June 29, 2022 and September 8, 2022. On June 16, 2020, the Parent moved for an Interim Order for a set of independent educational evaluations (IEE’s), the motion was heard on June 29, 2022, and the motion was granted the same day and the Interim Order was issued. The Order provides that:

• • The District shall forthwith conduct:
• • An adapted physical education evaluation (APE) (or, in the alternative, an assessment of the Student’s APE needs by a physical therapist familiar with adapted physical education);
• • Classroom observation;
• • Occupational therapy evaluation;
• • Social history update; and
• • Speech-Language evaluation; and
• • The District shall immediately fund an independent neuropsychological evaluation by Dr. [Redacted], in an amount not to exceed $6,000.00.

BACKGROUND AND POSITION OF THE PARTIES

[Redacted] is a [Redacted]-year-old student who has been classified as a student with Autism. The Student’s classification and eligibility for special education services was never in dispute. He has a diagnosis of Autism Spectrum Disorder (severe) with intellectual impairment. Ex. MM-1, -25, -30. He is minimally verbal and communicates in one-word utterances; he presents with significant deficits in the behavioral, communication and social domains. Ex. MM-30. His overall level of adaptive functioning is below the 1st percentile in all domains - communication, daily living skills and socialization. Ex. MM-17, -21-22. Significant behavior dysregulation is an impediment to his educational progress and continuous self-stimulatory behaviors necessitate the services of a one­to-one paraprofessional in the classroom. Ex. MM-30, -31, -32. He participates in alternate assessment. Ex. B-17. He regresses in knowledge and skills when there is "any lull in programming" and he therefore requires extended school-year services, i.e., a twelve-month program of special education and related services. Ex. MM-31. He is not yet independent with respect to toileting skills. Ex. MM-32.

The Parent unilaterally placed the Student at [Redacted] for the 2020-2021 and 2021-2022 school years, and now seeks tuition payment for the cost of the 2020-2021and 2021-2022 [Redacted] placements. The Parent contends that the District did not provide or offer the Student a FAPE for the 2020-2021 and 2021-2022 school years, and further contends that the [Redacted] placement was appropriate and that equitable factors support the tuition payment claim. The District did not appear at the due process heating, presented no evidence or witnesses, and waved submission of a closing brief. Tr. 56, IHO Ex. I.

The Parent submitted an evidence package containing 38 documents, and called two witnesses, the Parent and [Redacted], principal of [Redacted].

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). 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). In order 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).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

PRONG 1

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

The Parent raised multiple challenges to the committee on special education (“CSE”) actions and inactions for the school years in question prior to the filing of the due process complaint. Ex. A. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Here the District did not appear at the final hearing, called no witnesses and presented no evidence or argument. The Second Circuit has reaffirmed the position that a school district must offer witness testimony to meet its burden of proof in an impartial hearing. See, e.g., L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect). I find therefore that there was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s actions on behalf of this Student for the 2020-2021 and 2021-2022 school years.

Consequently I find that the District has not met its burden of proof in this proceeding. The Parent has therefore met the first of the three Burlington/Carter criteria for tuition reimbursement/payment.

PRONG 2

The Parent has the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" (Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether Parent' 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, Parent 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. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The District presented no evidence to challenge the Parent’s contention that [Redacted] was an appropriate program and placement for the Student. The Parent presented detailed and comprehensive affidavit testimony and submitted substantial documentary evidence in support of her position that the [Redacted] placement was appropriate, that it provided a unique and specialized program that was individualized to meet the Student’s needs, and that the Student made educational progress. Exs. F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, W, X, Y, Z, AA, GG, KK, and LL. I find that both of the Parent’s uncontroverted witnesses were credible and persuasive. Tr. 58-79.

The uncontroverted record establishes that the Student attended [Redacted] throughout the 2020-2021 school year. Ex. GG-1. He was enrolled in the school's BASE program in which lower-functioning students benefit from an intensive program of ABA services and highly-individualized instructional and behavioral support. Ex. L-1. His class schedule included daily instruction in the activities of daily living, science, math, language arts and social thinking, instruction in art, music, and physical education, and related services including occupational therapy, physical therapy and speech­language therapy. Ex. K-1. He received related services from state-licensed therapists and a state-certified teacher of special education. Tr. 75. An administration of the ABLLS provided the school with an initial assessment of his abilities and needs in an array of skill categories. Tr. 68- 69. The school formally assessed his progress after the first forty-five-day period of his attendance and issued "45-day progress reports" for speech-language therapy (Ex. L), special education (Ex. M), occupational therapy (Ex. N). In preparation for the annual review of the Student's program by his IEP team, the school staff prepared annual review reports of his progress in academic subjects (Ex. 0), physical therapy (Ex. Q), occupational therapy (Ex. R), and speech-language therapy (Ex. S). Additionally, the school issued quarterly reports of his progress toward each of his annual goals in all areas of services. Ex. P. These progress reports attested to his achievement of goals and objectives in numerous areas, e.g., coloring within boundaries (Ex. P-8), responding to greetings when prompted (Ex. P-13), hand-washing with prompts (Ex. P-21), responding to his name and making eye contact (Ex. W-1), receptively identify shapes and numbers (Ex. W-10), and to his satisfactory progress toward goals in other areas, e.g., following one-step directions (Ex. P-1 ), receptive identification of letters of the alphabet (Ex. P-4), identification of common objects by pointing (Ex. P-14), and attending to a structured therapeutic task for five minutes (Ex. P-14). The school conducted functional behavioral assessments and developed and implemented behavior intervention plans to address targeted behaviors; the school's board-certified behavior analyst conducted the FBA and developed the BIP. Ex. T-5, Ex. U-4.

The Student attended [Redacted] for the full 2021-2022 school year. Ex. KK-1. His schedule included daily direct instruction in the activities of daily living, social thinking, science, math and language arts, as well instruction in special subjects such as art and physical education, and related services including occupational therapy, physical therapy and speech-language therapy. Ex. Z-1. As in the previous school year, quarterly progress reports were issued to document his progress and needs with respect to his annual goals. Ex. AA. The Student was educated in a special education class with a 6:1:1 student-to-staff ratio, received instruction from a teacher who was state-certified in the field of special education (Tr. 75) and received related services from state-licensed therapists. See e.g., Ex. S-4 (speech). As during the previous school year, his behavior management needs were addressed through a behavior intervention plan (Ex. U) based on a functional behavior assessment (Ex. T; Tr. 77-78), both of which were developed and supervised by a board-certified behavior analyst (Ex. T-5; Ex. U-4). The BASE program in which he was enrolled during the 2021-2022 school year provided the Student with a twelve­month program; instructional and behavioral services based on an intensive program of Applied Behavior Analysis; and an interdisciplinary team of school psychologists, school social workers, related services providers, paraprofessionals, board-certified behavior specialists, and state­certified teachers and state-licensed service-providers. Ex. LL-1-2; Tr. 73-75. The [Redacted] program was consistent with the needs of the Student as identified in the report of a comprehensive neuropsychological evaluation completed shortly after the close of the 2021-2022 school year, including twelve-month program, one-to-one paraprofessional support, ABA methodology, functional behavioral analysis and behavior intervention plans developed and supervised by board-certified behavior analyst, adapted physical education, and occupational therapy, physical therapy and speech-language therapy services. Ex. MM-31-33.

Moreover, an independent evaluation was conducted both in the Student's home and at [Redacted] and the evaluator was able to document his behaviors and his engagement in both settings and to assess his educational progress. "[REDACTED] is making significant progress at [Redacted]," she reported, and concluded that the [Redacted] program had enabled the Student to make meaningful academic progress, as well. Ex. MM-29.

I find that the program at [Redacted] provided the Student with academic instruction in a small class with students of similar ability and need; related services such as occupational therapy and speech-language therapy by state-licensed professionals, behavioral supports developed and implemented by board-certified behavioral specialists, daily direct instruction in social skills and activities of daily living, and classroom instruction by a certified special education teacher. Moreover, the school documented the Student's academic, social-emotional and behavioral progress, and provided the Student with an opportunity to meet challenging and ambitious goals. See Endrew F v. Douglas County School District., 137 S.Ct 988,990 (2017). I also find that the Parent has demonstrated by extensive documentary evidence and by unchallenged affidavits in lieu of testimony that the educational program provided to the Student during the 2020-2021 2021-2022 school years was tailored to meet the Student's individual academic, related services, social-emotional and behavioral needs.

I find therefore that the record overwhelmingly establishes that [Redacted] was an appropriate placement for this Student for the 2020-2021 and 2021-2022 school years and that the Student made progress at [Redacted].

I find that the Parent has therefore met the second of the three Burlington/Carter criteria for tuition reimbursement/payment.

PRONG 3

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The District did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds.

The record shows that the Parent submitted timely 10-day notices for both the 2020-2021 and 2021 and 2022 school years. Exs. BB, EE. In addition, no meeting whatsoever was held to develop the Student's 2021-2022 educational program, and the Parent was deprived altogether of the opportunity to participate in the development of her child's educational program, to express disagreement with the recommended program, or to announce her intention to continue her child's non-public school placement at public expense in the event that she disagreed with the program recommended by the IEP team.

The Parent, through an affidavit in lieu of direct testimony (Ex. II) and by the submission of two years of wage records (Ex. X, Ex. GG), has demonstrated that she is unable to afford to "up-front" the cost of the Student's tuition and that an award of direct payment of tuition to the non-public school is warranted. Direct public funding of tuition, as requested by the Parent, is an available remedy where equitable considerations favor an award of the costs of non­public school tuition in cases in which the parent, though legally obligated to make such payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038, citing Mr. and Mrs. A. v. New York City Department of Education, 769 F.Supp. 2d 403 (SDSNY 2011); see also Connors v. Mills, 34 F.Supp. 2d 794 (NDNY 1998).

Overall I find that the District has made no effort, and has in fact failed to, meet its burden of proof that there was any equitable bar to direct tuition payment to [Redacted] for the two school years in question.

Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition payment for the 2020-2021 and 2021-2022 school years. The Parent has therefore met the third of the three Burlington/Carter criteria for tuition reimbursement/payment. Having met all three of the Burlington/Carter criteria, the Parent is entitled to payment for the cost of the Student’s 2020-2021 and 2021-2022 [Redacted] placements.

I also find it self-evident that the District should be ordered to comply with the Interim Order for evaluations, and that it should convene an IEP meeting to consider all appropriate information.

Finally, I find that evidence establishes that [Redacted] is owed $134,395.00 for the 2021-2022 school year, and $109,200.00 for the 2020-2021 school year, for a total of $243,595.00. Exs. II, JJ.

Based on the foregoing, I find that:

• • The District failed to provide or offer a FAPE for this Student for the 2020-2021 and 2021-2022 school years;
• • The Parent established that the [Redacted] Academy was appropriate for this Student for the 2020-2021 and 2021-2022 school years, and that the Student made progress at [Redacted]; and
• • That equitable considerations support the Parent’s request for direct tuition payment to [Redacted] for the two school years.

ORDER

Accordingly, it is hereby ORDERED that the New York City Department of Education is directed:

• • To pay directly to [Redacted] the amount of $243,595.00, which represents the balance owed to [Redacted] for the Student’s attendance for the 2020-2021 and 2021-2022 school years, within 30 days of receipt of an invoice from [Redacted];
• • Complete the evaluations ordered in the Interim Order herein dated June 29, 2022, including a classroom observation, social-history update, adapted physical education assessment, occupational therapy evaluation and speech-language evaluation within sixty days of the date of this Order; and
• • Convene a meeting of the Student's IEP team to develop an educational program that reflects the Student's current abilities and needs as documented by all new and current evaluations; and to provide the Parent with copies of all evaluations to be considered by the IEP team, such copies to be provided not later than five business days prior to the IEP team meeting; and All other relief in the due process complaint is moot and has been withdrawn by the Parent.

Dated: October 2, 2022

______________________________

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parent:

[Redacted], Esq.

[Redacted], Parent

[Redacted], Witness

For the District:

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.