New York City Department of Education, Impartial Hearing Decision

SED Case Number: 571810 NYC Case Number: 225707

FINDINGS OF FACT AND DECISION

NYC Case Number: 225707

Student’s Name: REDACTED

Date of Birth: 7/22/2015

School: The REDACTED School

Request date: 4/6/2022

Dates of Hearing: July 21, 2022; August 19, 2022 and December 20, 2022

Actual Record Closed Date: 1/11/23

Date of Decision: 1/11/23

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 July 21, 2022 For the Parent:

Law Offices of REDACTED

For the Department of Education:

None

Names and Titles of Persons Who Appeared on Persons in attendance on August 19, 2022 For the Parent:

Law Offices of REDACTED

PARENT

PARENT

For the Department of Education

REDACTED, Esq., Department of Education Designee

Names and Titles of Persons Who Appeared on Persons in attendance on December 20, 2022 For the Parent:

Law Offices of REDACTED

PARENT

PARENT

REDACTED ADMINISTRATOR, SCHOOL

For the Department of Education

REDACTED, Esq., Department of Education Designee

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 7, 2022. I was not appointed, however, 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 20, 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. A status conferences was held on June 7, 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 July 21, 2022. The matter was then continued on August 19, 2022 and December 20, 2022. As a result, the decision date was duly extended to January 11, 2023. 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 2021-2022 extended school year in furtherance of a unilateral transfer to The REDACTED School (hereinafter referenced as “REDACTED”), a non-public school setting.^[1]

As a corollary, the Parents have defended the educational program implemented by REDACTED 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 designated 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, REDACTED was a REDACTED year-old child, classified as a Student with Autism. He was attending first grade at REDACTED, pursuant to a unilateral transfer, and receiving all related services as articulated in the May 20, 2020 IEP. It should be noted that the CSE did not convene in preparation for the 2021-2022 school year and there was no valid IEP in the record for the 2021-2022 school year. However, as per the stale IEP of May 20, 2022, the Department has recommended a ten-month 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 was specifically not recommended.

Issues

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), did the Department offer an educational program reasonably calculated to confer an educational benefit upon the child during the 2021-2022 and school year?

Point II: Was REDACTED/redacted an appropriate educational placement for the child during the 2021-2022 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 offered limited evidence and presented no witnesses. It is further obvious that the Department failed to convene a timely CSE and further failed to offer a timely placement. It did not draft an appropriate IEP in preparation for the upcoming 2021-2022 school year, utterly in abrogation of its IDEA mandate. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]. In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Moreover, a “T 5 School Location Letter,” ostensibly dated October 22, 2021 is unsupported by testimony. S Exh. 13. Even when the Department did offer a placement, the record is devoid of any evidence that this placement could be provided at the school designated in its School Location Letter. Exh. 13. At the very least, the document was prepared after the commencement of the school year. However, the submission of a document, unsupported by testimony which can provide context and meaning, does nothing to further the Department’s claim. It is simply unclear whether the printed date 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. Consistent with L.O. v. the NYC Dep’t of Educ., 822 F3rd 95, 106 (2nd Cir. 2016)(mere denomination of evaluative tools does not establish the CSE’s use and consideration of these measures when preparing the IEP), the Department’s failure to provide any testimonial elaboration upon the circumstances, conditions and/or context in which the School Location letter was prepared, renders the document meaningless.

Given the absence of a placement witness, the Department has not established the fact that it could deliver any program, including the stale one 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.

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 REDACTED was an appropriate placement for the child during the 2021-2022 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.

REDACTED is a child who is largely nonverbal. He has been receiving services since attending early intervention at the REDACTED Institute in 2020. December 20, 2022 Tr. at 63-64. Thereafter, REDACTED articulated into SCHOOL 2 (now known as “REDACTED”). The child presents with a range of severe receptive and expressive communication deficits. He has received PROMPT therapy for several years and can now say simple greetings. Although REDACTED demonstrates significant splinter skills (such as solving 3D puzzles and playing a musical keyboard), his communication needs are considerable. P Exh. C. The child utilizes an augmentative and alternative communication device (hereinafter referenced as “AAC”). Notably, he has consistently received instruction via ABA protocol and has been responsive to this methodology. When the Parent finally received a placement letter, it was already three months after the school year had commenced for her son. December 20, 2022 Tr. at 64. In the absence of any placement, Ms. PARENT simply continued her son’s enrollment at REDACTED as he had been successful there the previous year.

Ms. PARENT noted that her son has become more independent at REDACTED and is now able to use his ACC device to produce full sentences. He is now able to answer questions correctly when presented with three alternative answers. His writing has improved and her son is now able to recognize most numbers and letters. Ibid. at 68. He is now able to socialize in a structured environment and has made his first friends. She noted that the School provides 1:1 in person Parent training so that she is able to reinforce and generalize the skills he is learning in the school environment.

ADMINISTRATOR holds a Ph.D. in psychology with a specialty in learning processes and behavioral analysis from the REDACTED, The Graduate School and University Center. He is currently employed at the REDACTED Learning Center (“REDACTED”) as its Program Director.

As Program Director at REDACTED, 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 REDACTED 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. P Exh. Q.

At REDACTED, 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. P Exhs. L,M.N. 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 REDACTED 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 REDACTED, 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. REDACTED specifically serves students with autism and related developmental disorders. Staff at REDACTED attend professional development throughout the year, addressing the use of ABA and refining their techniques and knowledge. Although REDACTED’s lead teacher is not a certified teacher, the School’s Academic Director is both a certified special education teacher and BCBA.

During the 2021-2022 school year REDACTED was placed in a classroom with three other students and received a great deal of 1:1 therapy with his BCBA, REDACTED THERAPIST, M.A., BCBA, LBA. In addition to the lead teacher, a certified BCBA, the child was furnished with a 1:1 registered behavior technician within the classroom paradigm. In total, there were four adults in the classroom. Ibid. at 90. REDACTED made substantial and global progress on his ABA goals across most domains; in particular, he made progress in the domains of Listener Responding (i.e., responding to one-step directions or looking in the direction of a speaker), and Visual Perception (i.e., shorting items by shape or color). P Exh. Q, passim. In sum, the witness opined that REDACTED had made meaningful progress at REDACTED during the 2021-2022 school year.

I find, at the outset, that the program offered at REDACTED 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, REDACTED 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 REDACTED’s ability to absorb academic instruction. Both the Parent and REDACTED personnel uniformly agree that the child is making meaningful progress within the REDACTED 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. Q., passim.

During the 2021-2022 school year, REDACTED continued to receive his mandated related services as required. Given the above, I believe REDACTED was an appropriate placement for REDACTED 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 REDACTED. Indeed, although the Department received notice of the Parent’s concerns, there was no evidence or testimony that it attempted to resolve her issues. P Exh. B. 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 REDACTED 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. I have additionally reviewed the Parents’ income tax statements and find that relief pursuant to Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998) is appropriate.

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 REDACTED during the 2021-2022 school year for the REDACTED School, previously known as REDACTED SCHOOL 1SED. This shall include direct payment to REDACTED as well as reimbursement to the Parents of all expenses already paid to REDACTED. 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: January 11, 2023

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 REDACTED was previously known as “redacted.” Documentation and/or testimony may reflect either name.