New York City Department of Education, Impartial Hearing Decision

SED Case Number: 571809 NYC Case Number: 225706

FINDINGS OF FACT AND DECISION

NYC Case Number: 225706

Student’s Name: STUDENT

Date of Birth: REDACTED

School: The UNILATERAL PLACEMENT 2 School

Request date: 4/6/2022

Dates of Hearing: August 18, 2022; October 24, 2022; December 5, 2022

Actual Record Closed Date: 12/27/22

Date of Decision: 12/27/22

Date of Distribution if Different than Decision Date: not applicable

Hearing Officer: Lynn B. Almeleh, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on August 18, 2022 For the Parent:

Law Offices of REDACTED.

REDACTED, Parent

REDACTED, Parent

For the Department of Education

REDACTED, Department of Education Designee

Names and Titles of Persons Who Appeared on Persons in attendance on October 24, 2022 For the Parent:

REDACTED Law Offices

REDACTED, Parent

For the Department of Education

REDACTED, Consultant Impartial Hearing Representative

REDACTED, CLINICIAN, Department of Education

Names and Titles of Persons Who Appeared on Persons in attendance on December 5, 2022 For the Parent:

Law Offices of REDACTED.

REDACTED, Parent

REDACTED, Parent

THERAPIST 1

ADMINISTRATOR Program Director, the REDACTED School

For the Department of Education

REDACTED, Consultant Impartial Hearing Representative

Introduction and Procedural History

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (”DPC”) filed on or about April 6, 2022, I was not appointed to hear the above-referenced matter until April 26, 2022 in violation of the Department of Education’s mandate as articulated in the Individuals with Disabilities Education Act, 20 U.R.R. Section 1415 (f)(1) and its implementing regulations, 34 C.F.R. § 300 et seq. in addition to the New York State Education Law, Educ. Law § 4404 et seq. and its implementing regulations, 8 NYCRR § 200.5 et seq. As the Department of Education was in gross violation of its IDEA mandate, it is additionally clear that a timely resolution meeting was never held, if one was held at all. There has been no motion practice in this matter and closing statements were incorporated into the hearing proceedings on December, 2022.

On May 2, 2022 a pre-hearing conference was held for the purpose of developing a litigation calendar and framing the issues, where possible. Status conferences were held on June 7, 2022 and July 11, 2022. 2022. When it became apparent that the parties were unable to arrive at a mutually satisfactory resolution of this matter, a hearing was scheduled for August 18, 2022. As a result, the decision date was duly extended to December 27, 2022. The is the compliance date, the date of distribution and the date of this Findings of Fact.

Specifically, the Parent asserts that the School District’s educational placement stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A. As a result, thereof, they are seeking tuition reimbursement for the 2020-2021 extended school year in furtherance of a unilateral transfer to The UNILATERAL PLACEMENT 2 School (hereinafter referenced as “UNILATERAL PLACEMENT 2”), a non-public school setting.^[1]

As a corollary, the Parents have defended the educational program implemented by UNILATERAL PLACEMENT 2 and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief.

As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. It should further be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and submission of post-hearing documentation. I note that the student is classified as “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is classified as a “Student with Autism” as that term is defined under the IDEA, 20 U.S.C. §1401(a)(1). et seq.

A list of persons in attendance and of evidence is appended hereto.

Background

At the time of these proceedings, STUDENT was a REDACTED-year-old child, classified as a Student with Autism. He was attending first grade at UNILATERAL PLACEMENT 2, pursuant to a unilateral transfer, and receiving all related services as articulated in the May 20, 2020 IEP. In contrast, the Department has recommended a 6:1:1 class in both ELA and math, 15 periods each per week, to be supplemented by Occupational therapy (1:1; 30 x 2); Parent Counseling and Training to be offered as a group four (60 minute) sessions per year; Speech and Language Therapy (1:1; 4 x 60) and Speech and Language Therapy to be offered as a group service 30 minutes per week. Further supplementary aids and services are not articulated in the IEP and the use of a BIP is specifically not recommended. Despite the child’s full-scale IQ falling within the “severely delayed” range and his Vineland II Adaptive Behavior Composite falling within the “Moderately Low Range,” the child was recommended for a ten-month school year without the assistance of positive behavioral interventions and supports. It is noted that STUDENT is very self-directed, highly distractible and non-verbal. D Exh. 1 at 2, 7, 18. The IEP of May 20, 2020 describes a child with multiple and global deficits in all areas of function who requires “maximum support” to begin and complete a task. Ibid. at 3.

Issues

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 5, 2020 reasonably calculated to confer an educational benefit upon the child during the 2020-2021 and school year?

Point II: Was UNILATERAL PLACEMENT 2/ UNILATERAL PLACEMENT 1 an appropriate educational placement for the child during the 2020-2021 school year?

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Findings of Fact

The Department of Education’s Case The record is very clear in this case. The Department limited evidence and offered no witness testimony on the issue of placement. A “T 5 School Location Letter, ostensibly dated June 15, 2022 stands unsupported by testimony. S Exh. 4. It is unclear whether this is the date the document was prepared or whether this document was printed or mailed out on this date. The Department has not established the factual circumstances surrounding this letter and one can only guess if and when it was ever sent and to whom.

CLINICIAN is a school psychologist who participated in the child’s “turning five” CSE meeting. He is employed by the Department of Education. D.Exh. 1 at 24. He had a limited recollection of the circumstances surrounding the May 20, 2020 convene and had never observed the child ostensibly due to “Covid restrictions.” Ibid. at 85. However, when reviewing the IEP, he recalled that the Parent was concerned about the continuing use of her son’s AAC device. Mr. CLINICIAN did not recall the discussion surrounding the use of ABA as an instructional technique, and although there is no mention of ABA in the IEP, the witness testified that it is always discussed. October 24, 2022 Tr. at 82, 98. He enumerated the list of evaluations and documents upon which the CSE relied and opined that the recommendations forthcoming from that convene were appropriate. Ibid at 84. He did not comment upon the Department’s T5 School Location Letter and, in fact, it is unclear whether Mr. CLINICIAN has any direct knowledge of that placement. D Exh. 4. I note that the recommendation reflects placement at DEPARTMENT OF EDUCATION RECOMMENDATION. Mr. CLINICIAN is assigned to PS 217 and did not describe any duties related to placement or ascertaining the availability of services for a school recommended by the Department. Ibid. at 75. Indeed, the only placement responsibilities to which Mr. CLINICIAN testified were those related to parents applying to the AIMS program. Although he had no recollection of discussing this specifically with the T. family, he testified that he routinely furnishes flyers and applications for this program. October 24 2022 Tr. at 99. Nevertheless, he later indicated that as between the 6:1:1 DEPARTMENT OF EDUCATION RECOMMENDATION and the AIMS program, the former was the better option for STUDENT at that time. Ibid. at 100-101.

Given the absence of a placement witness, the Department has not established the fact that it could deliver the program articulated in its May 20, 2020 IEP. In the absence of a placement witness who could confirm the availability of services for this child, one is forced to rely upon “retrospective testimony,” i.e., testimony that certain services not listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement. In the case at bar, the Department has not even presented retrospective testimony. It has wholly ignored the issue. In view of the above and consistent with R.E. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421 (S.D.N.Y. 2014); Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv., I find that the Department of Education has not met its prong one burden consistent with Burlington v. Department of Education of Massachusetts.

However, even if placement were not an issue, the Department offered no testimony as to why a ten month school year would be appropriate for a child with severe learning issues.

The Parent’s Case

Having determined that the Department of Education has not met its prong one burden, pursuant to Burlington, supra, I will now address the issue of whether UNILATERAL PLACEMENT 2 was an appropriate placement for the child during the 2020-2021 school year. Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

STUDENT is a child who is largely nonverbal. He has been receiving services since attending early intervention at the REDACTED Institute in 2020. Thereafter, STUDENT articulated into UNILATERAL PLACEMENT 2 (previously known as “UNILATERAL PLACEMENT 1”). The child presents with a range of severe developmental delays and communication deficits. Although STUDENT demonstrates significant splinter skills (such as solving 3D puzzles and playing a musical keyboard), his communication needs are considerable. P Exh. C at 1. Notably, he has consistently received instruction via ABA protocol and has been responsive to this methodology. At some point, the child commenced classes in an 8:1:1 paradigm. The Parent testified that her son could not function appropriately in this setting and that the professional staff were not trained to use his AAC device. October 24, 2022 Tr. at 140. Ultimately, as the exigencies of Covid materialized, the Parent testified that remote instruction could not serve her son in any meaningful way as he is unable to sit at a computer terminal.

In preparation for the May 20, 2020, the witness indicated that she had furnished the Department with all evaluations she had obtained, including a privately secured pediatric Neuropsychological Evaluation obtained in April 2020. In addition, the Parent supplied the Department with letters from both the child’s developmental and pediatric neurologists. P Exhs. D-E. Nevertheless, the Parent opined that her concerns had not been heard at the CSE convene.

Ms. REDACTED indicated that she had additionally applied to the NEST and Horizon programs, but her son was not accepted. She then toured approximately five District 75 programs. She noted that the programs did not utilize ABA, nor were there opportunities for individualized instruction. Similarly, PROMPT instruction was not offered as a related service. Finally, the Parent testified that she had observed the school at REDACTED. She noted that related services were offered in a large room with other students, some of whom displayed behavioral issues. She noted that STUDENT is unable to attend to instruction within a group setting as he is highly distractible and does not make eye contact. For this reason and others, the Parent did not believe REDACTED would be appropriate for her child. Beyond this, Ms. redacted further testified that the school did not offer PROMPT therapy, ABA or even 1:1 support. Given all of the foregoing, REDACTED opined that the Department had not offered STUDENT an appropriate placement.

THERAPISTT 1 additionally testified as the child’s speech and language therapist. STUDENT has difficulty with motor coordination and articulating sounds. As a result, he benefits from PROMPT therapy as a means of developing the musculature necessary to produce sounds. She noted that the child relies upon an AAC device although he now has some emergent sounds. STUDENT requires 1:1 support for developing speech production but can manipulate his ACC device in order to access receptive language commands. She is familiar with the UNILATERAL PLACEMENT School and, as such, testified that it was an appropriate setting for the child.

ADMINISTRATOR holds a Ph.D. in psychology with a specialty in learning processes and behavioral analysis from the City University of New York, The Graduate School and University Center. He is currently employed at the UNILATERAL PLACEMENT 2 Learning Center (“UNILATERAL PLACEMENT”) as program director.

As program director at UNILATERAL PLACEMENT 2, Dr. ADMINISTRATOR is responsible for overseeing the ABA program of each student; conducting Functional Behavior assessments and developing Behavior Intervention Plans, among other things. He is also part of the admissions team and evaluates the appropriateness of prospective students for the program. He described the program at UNILATERAL PLACEMENT 2 indicating that each student receives 1:1 instruction using Applied Behavioral Analysis (ABA) in a small, nurturing classroom environment that operates on a 12-month calendar.

At UNILATERAL PLACEMENT 2, students are provided with 1:1 support within a small group setting for behavioral and instructional needs. In addition to ABA therapy, as part of their individualized programs, students can receive speech-language therapy, occupational therapy, physical therapy, art therapy, and group music therapy. He noted that ABA is a philosophy derived from research in behavioral psychology, in which data is collected on the effects of environmental events on specifically defined target behaviors in order to determine cause and effect relationships. Environmental events, including the behavior of the instructor, are then methodically altered to evoke socially important behavior changes such as skill acquisition and reduction of disruptive or dangerous behaviors.

The program at UNILATERAL PLACEMENT 2 is data driven and collected throughout the entire school day in order to assess the effectiveness of its various interventions. In this manner, modifications to the treatment plan can be made in a timely fashion as needed. Skills addressed by an ABA program may include language, social, daily living, and academic skills. At UNILATERAL PLACEMENT 2, problem behaviors are addressed only if they have immediate social significance and prevent the individual from thriving, learning, and being safe and independent.

Dr. ADMINISTRATOR noted that the use of ABA therapy is important for students on the autism spectrum, as children on the autism spectrum often have difficulty or a lack of interest in attending to stimuli relevant to learning new skills. ABA therapy focuses on finding ways to motivate children to attend to the relevant stimuli, and then teaches new skills in small components so that the children can build upon each success. In addition, ABA enables instructors to identify the environmental events responsible for the occurrence of disruptive or unsafe behaviors and alter those events in a way that will reduce the unwanted behaviors and teach more appropriate replacement behaviors. 9. During the 2020-2021 school year there were 24 students from ages five to twelve. UNILATERAL PLACEMENT 2 serves students with autism and related developmental disorders. Staff at UNILATERAL PLACEMENT 2 attend professional development throughout the year, addressing the use of ABA and refining their techniques and knowledge. In sum, the witness opined that STUDENT had made meaningful progress at UNILATERAL PLACEMENT 2 during the 2020-2021 school year.

I find, at the outset, that the program offered at UNILATERAL PLACEMENT 2 correlates well with the student’s educational and behavioral needs, as identified by credible witnesses. The child is functionally grouped in a classroom whose students reflect a similar profile, enabling him to serve as a peer model and to learn from others. Specific measures are taken to encourage generalization of skills across personnel and environment.

Clearly, UNILATERAL PLACEMENT 2 utilizes methods and curriculum which are based upon empirical research. P Exh. G, passim. Its personnel are experienced with autism spectrum disorder. Data is taken throughout the day facilitating assessments of the child’s progress and areas of deficit. In this manner, the student’s goals may be individually tailored to meet his needs in a timely manner. Personnel are familiar with autistic stereopathies, off-task and self-injurious behaviors. They are trained to reduce their occurrence. A behavior management program has been implemented and this has facilitated STUDENT’s ability to absorb academic instruction. Both the Parent and UNILATERAL PLACEMENT 2 personnel uniformly agree that the child is making meaningful progress within the UNILATERAL PLACEMENT 2 paradigm. Its methods and curriculum are based upon empirical research and its personnel are experienced with ABA. All skills are taught with an understanding that no skill is truly acquired until it is generalized across environments and people. P Exh. J., passim.

During the 2020-2021 school year, STUDENT continued to receive his mandated related services as articulated in the May 20, 2022. Given the above, I believe UNILATERAL PLACEMENT 2 was an appropriate placement for STUDENT during the 2021-2022 school year.

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Finally, the evidence indicates that the Parent participated willingly in her son’s CSE convenes and communicated at length about her concerns. To her credit, she did so in the absence of hostility and negativism. The Parent authorized assessments and willingly exchanged reports and evaluations from UNILATERAL PLACEMENT. She visited the proposed school placements and communicated her concerns to the Department on June 18, 2020, to no avail. P Exh. B. Indeed, although the Department received notice of the Parent’s concerns, there was no evidence or testimony that it attempted to resolve her issues. Under these circumstances, I see no factors which would militate against the Parent’s equitable right to recovery.

Conclusions of Law

The Department of Education has not met its burden of providing STUDENT with a FAPE, consistent with Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. In contrast, the Parent has established both prongs two and three, referent to the cases cited, supra.

Order

Based upon the above Findings of Fact and conclusions of Law, it is hereby ordered:

Within forty-five (45) days of the date of this Order, upon the Parent’s submission of a duly executed Affidavit of Attendance, and consistent with Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998), the Department shall make direct payment of all tuition expenses incurred by STUDENT during the 2020-2021 school year to the UNILATERAL PLACEMENT 2 School, previously known as UNILATERAL PLACEMENT 1. This amount shall represent the Department of Education’s total liability pursuant to the Parent’s Due Process Complaint dated April 6, 2022.

SO ORDERED

Dated: December 27, 2022

Lynn B. Almeleh, Esq.

_____________________________________

New York State Certified 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.

Footnotes

[1] It should be noted that UNILATERAL PLACEMENT 2 was previously known as “UNILATERAL PLACEMENT 1.” Documentation and/or testimony may reflect either name.