New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572148 - NYC: 225921

FINDINGS OF FACT AND DECISION

Case Number: 225921

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: REDACTED 19, 2022

Date(s) of Hearing: April 29, 2022

June 1, 2022

July 6, 2022

August 15, 2022

September 23, 2022

October 28, 2022

Actual Record Closed Date: November 8, 2022

Date of Decision: November 10, 2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON REDACTED 29, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 1, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Law Clerk

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON July 6, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 15, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 23, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 28, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Educational Director, The REDACTED School

For the Department of Education:

REDACTED REDACTED, Esq.

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 19, 2022. Ex. A.^[1] On REDACTED 21, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement for tuition for REDACTED at The REDACTED School for the 2021-2022 school year. Ex. A at 4.

I conducted a prehearing conference on April 29, 2022. I considered a request to consolidate this proceeding with another proceeding pending with respect to REDACTED’s special education and services. After hearing from the parties, I determined that it would not be appropriate to consolidate the two proceedings (Tr. 2-5) and issued a written Order to that effect. I continued the case to June 1, a date after the conclusion of the resolution period.

On June 1, Parent’s counsel appeared; the Department failed to appear. I continued the case to July 6, 2022, in order to permit the parties to consider settlement and for Parent’s counsel to provide an opening statement and offer documents in evidence.

On July 6, Parent’s counsel appeared; the Department failed to appear. The Department was notified that it was in danger of default. IHO Ex. I. The hearing was adjourned to August 15 for the hearing on the merits.

On August 15, Parent’s counsel appeared; the Department failed to appear. Parent’s Exhibits A through N and IHO Exhibit I were admitted in evidence. The hearing was continued to September 16; after the August 15 hearing, the Department requested an adjournment of the September 16 date. The hearing was adjourned to September 23, and the Department was given the opportunity to explain its failures to appear. IHO Ex. II. The Department did not avail itself of this opportunity.

On September 23, Parent’s counsel appeared; the Department failed to appear, despite changing the date and time of the hearing at the Department’s request. Tr. 48-49. Parent’s Ex. O was admitted in evidence, and Parent’s counsel presented an opening statement on behalf of REDACTED’s Parents. Tr. 51-57.

The hearing was completed on October 28 with Department in default as to its “prong I” case; and the presentation of the testimony of REDACTED’s mother and the Educational Director of The REDACTED School.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on June 1, July 6, August 15, September 23 and October 28, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on November 8, 2022, upon the Hearing Officer’s receipt of the transcript of the final day of the hearing..

JURISDICTION

The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

REDACTED’s mother consented to the hearing being conducted by videoconference and to transmission of this decision by email.

ISSUES

Parent requests funding for tuition at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

• • Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?
• • Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

• • REDACTED is a now REDACTED year-old boy whose disability is classified, for the purposes of the IDEA, as autism. Ex. A at 1.
• • REDACTED has been diagnosed with an REDACTED and REDACTED REDACTED Exs. G at 1, K at 10. He demonstrates pervasive and global delays in engagement, learning, communication, social skills, sensory processing and regulation, attention and focusing, and fine and gross motor skills. See Exs. G, H, I, J, K; Tr. 74, 77-78, 99.
• • REDACTED manifests maladaptive behaviors that interfere with his learning. These behaviors include screaming, crying, yelling, punching, kicking, and inflexible adherence to routines; he also engages in hiding and elopement in order to avoid learning tasks. Exs. E, G at 4; Tr. 99-100.
• • REDACTED’s mother attended a CSE meeting in March 2021. The CSE recommended that REDACTED attend a 12:1:1 program for REDACTED. Tr. 101. REDACTED’s mother was concerned that a class with 12 students was too large for REDACTED. Tr. 101-103
• • The Department recommended that REDACTED attend P.S. REDACTED; REDACTED’s mother visited the school and was concerned that the school was too large for REDACTED and that ABA was not offered at the school. Tr. 101-103.
• • During the 2021-2022 school year, REDACTED attended The REDACTED School (“REDACTED”). Ex. A at 2.
• • REDACTED is a non-public special education school for children with autism and related disabilities. The school focuses on foundational skills for learning and providing individualized instruction, 1:1 teaching utilizing Applied Behavior Analysis^[2] (“ABA”) techniques, and related services. Ex. E; Tr. 72-73.
• • School personnel developed an individualized educational program for REDACTED based upon assessments conducted at the beginning of the school year. Ex. G at 1.
• • School personnel also developed a detailed Behavior Intervention Plan (“BIP”) for REDACTED to address his tantrumming. Ex. F. The BIP addresses tantrumming behaviors (including screaming, crying, yelling, crying) and rigid patterns of behavior through (among other interventions and strategies) positive attention, positive reinforcement, differential reinforcement, concrete and clear language, permitting time for REDACTED to process information, engagement strategies and prompting positive behaviors, and teaching him positive replacement skills. Ex. F; Tr. 80-81.
• • REDACTED participated in a class of REDACTED students, a certified special education teacher, and REDACTED 1:1 instructors. Tr. 74-75. The students in the class had needs similar to REDACTED’s needs and were social peers for him. Tr.74-75.
• • REDACTED’s schedule at REDACTED (Ex. D) for the 2021-2022 school year included the following:
• • OT group in the mornings for “massage,” which was described as “[d]eep proprioceptive and tactile input [a]ctivities to increase attention and arousal levels;”
• • Morning Meeting for calendar, math, classroom and conversation skills;
• • Learning Time for core academic programs;
• • Brain Gym, in an OT group, for “[f]ocusing, rhythmic movement, coordination;”
• • Centers involving dramatic play, sensory activities, music, art, library;
• • Physical education;
• • Instructional lunch involving work on ADL skills, table manners and nutrition;
• • Social Group;
• • Group Lesson for content area instruction, social thinking, executive functioning and language concepts;
• • Additional OT group time for strengthening and other activities;
• • The school day ended with “calm down activities” and “Self Regulation awareness;”
• • Related services are scheduled during the school day to minimize loss of classroom instruction to REDACTED. See also Tr. 89-91.
• • In academics, REDACTED worked on early literacy skills, including increasing his phonological awareness, understanding letters and their corresponding sounds, increasing attention to and comprehension of stories read to him, and using facial expressions and gestures to act out parts of a story. Ex. G at 2; Tr. 82-83.
• • School personnel utilized a multi-sensory approach to teaching writing: REDACTED was working on writing his name and forming upper and lower case letters. He needed to, and did, work on writing letters with the correct sizing, orientation and directionality rather that writing all over the page. Ex. G at 2.
• • In math, REDACTED worked on number concepts, counting, and identifying numbers; using concrete materials, he worked on quantitative concepts; he needed “consistent prompting” to focus and attend to this work. Ex. G at 2.
• • REDACTED worked on improving his social skills, identifying his emotions, sustaining attention and focus, play skills, and increasing his self-regulation. Ex. G at 2-3. School personnel utilized sensory activities, engagement strategies and a self-regulation program and a social thinking curriculum to address REDACTED’s needs in these areas. REDACTED needed support to use self-regulation techniques. Ex. G at 2-3; Tr. 78.
• • REDACTED worked on his ADL skills in the areas of utilizing utensils to eat, hand washing, dressing himself, toileting, and community and safety awareness skills, including understanding street signs. Ex. G at 3.
• • REDACTED also worked on executive functioning skills, including transitioning and organization/planning. Ex. G at 3.
• • REDACTED provided REDACTED with occupational, speech and physical therapies. The therapists were appropriately licensed in their respective fields. Exs. H, I, J; Tr. 86-89.
• • Occupational therapy targeted REDACTED’s sensory processing and self-regulation, visual motor/perception skills, engagement, attention, fine motor skills, play skills, balance, strength/endurance, executive functioning, and self-care skills. Ex. H.
• • REDACTED used a sensory diet in the classroom and participated in four sensory motor groups each day to maintain an appropriate level of regulation in order to participate in learning. Ex. H at 2.
• • Speech therapy targeted REDACTED’s receptive, expressive and pragmatic language challenges and his play skills. Ex. I at 1.
• • Physical therapy targeted REDACTED’s gross motor development, gait, motor control, strength and agility, and motor and postural control. Ex. J at 1.
• • REDACTED met REDACTED’s needs for ABA programming, 1:1 instruction, a BIP, and related services, and, as a result, he made progress. Tr. 78-79.
• • REDACTED made progress in recognizing what triggers his dysregulation; completing one and two step daily living tasks; “significant progress” in attention (especially to group instruction) and engagement through the sensory strategies implemented in the classroom and through occupational therapy; REDACTED improved his fine motor skills, particularly with his grasp, which led to improvements in hand-writing, play activities and self-care skills; he learned to increase his social and verbal interactions during play activities and social skills; he improved his expressive language, his ability to identify his feelings and to use regulation tools to calm down and not become upset. Exs. G at 2-3, H at 2-3; I at 3; Tr. 79-80, 85, 104, 106, 108.
• • With respect to academics, REDACTED made progress in phonological awareness, sounds of letters, decoding and encoding words with vowers A and O; and his listening comprehension improved. Tr. 83.
• • In math, REDACTED learned pre-number concepts and to identify numbers to 100, to count items up to 20, and to understand basic quantitative concepts. Tr. 84.
• • As to behavior, REDACTED decreased his incidents of elopement with the consistent implementation of both proactive and reactive strategies as well as self-regulation strategies. Ex. G at 4. As to the behaviors addressed by the BIP, data showed that the targeted behaviors decreased, and the replacement behaviors increased. Tr. 81.
• • REDACTED’s parents, through counsel, submitted a ten-day notice letter to the Department on August 18, 2021. Ex. B. In the letter, they explained their concerns with the Department’s IEP and proposed school placement for REDACTED. Ex. B.
• • REDACTED’s parents, through counsel, submitted a follow-up notice letter to the Department on October 7, 2021. Ex. C. In the letter, they again explained their concerns with the Department’s IEP and expanded upon their concerns with the proposed school placement for REDACTED. Ex. C.
• • REDACTED’s parents entered into an enrollment contract with REDACTED for the 2021-2022 school year, from September 1, 2021, through June 2022. Ex. L. The total tuition was $107,500.00. Ex. L at 1.
• • REDACTED’s parents have paid $250.00 towards REDACTED’s tuition at REDACTED for the 2021-2022 school year. Ex. M.
• • REDACTED’s parents are obligated to pay REDACTED the total tuition amount. Ex. L at 2. REDACTED’s parents’ income is such that they are unable to pay the full amount at this time. Ex. O, Tr. 107.

CONCLUSIONS OF LAW

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or the educational and related services selected by the parents are not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition or services reimbursement for a unilateral placement, or services selected by the parent, has the burden of proof regarding the appropriateness of such placement, programming or services. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the Department did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2021-2022 school year or to rebut the testimony of REDACTED’s mother or her witnesses. Since the Department did not offer any testimony or documentary evidence to explain how its program for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED’s program for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parents must show that the educational services provided by REDACTED addressed REDACTED’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that REDACTED’s program provided REDACTED with an educational program in which his complex constellation of identified and significant special education needs was addressed. In particular, the record is clear that REDACTED needed the behavioral and other supports that school personnel provided to him in the classroom and the related services provided by REDACTED. See paragraphs 7 through 22 above.

REDACTED has made progress during the 2021-2022 school year. See paragraphs 23 through 27 above. REDACTED has made progress across the range of his significant and varied autism-related challenges, demonstrating that REDACTED provided him with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that REDACTED’s program was appropriate for REDACTED for the 2021-2022 school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s mother cooperated with the CSE by attending the CSE meeting, learning about the school proposed for REDACTED, communicating with Department personnel about her concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although REDACTED’s parents have paid only a small portion of the REDACTED tuition, the debt for the full amount of the tuition is very real. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment (rather than reimbursement) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents have the financial wherewithal to “front” the entire amount of the private school tuition and subsequently seek repayment from the school district.

Equitable considerations thus favor the award of relief to REDACTED’s parents. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

The Department of Education shall fund REDACTED’s placement at the REDACTED School for the 2021-2022 school year. The amount of funding for the 2021-2022 school year shall not exceed $107,500.00. The funding shall be reimbursement to REDACTED’s parents for the amounts that they have paid to REDACTED for REDACTED’s tuition for the 2021-2022 school year, and direct payment to REDACTED for any amounts that REDACTED’s parents have not yet paid for tuition the 2021-2022 school year.

SO ORDERED.

DATED: November 10, 2022

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

Exhibit

Date

Title

Number of Pages

A 04/19/2022 Impartial Hearing Request 4

B 08/18/2021 Ten Day Notice Letter and Email Confirmation 4

C 10/07/2021 Follow Up Ten Day Notice and Email Confirmation 4

D 2021-2022 Daily Schedule 2

E 2021-2022 Program Description 4

F 2021-2022 Behavioral Intervention Plan 6

G January 2022 Educational Progress Report 4

H 01/21/2022 Occupational Therapy Progress Report 3

I January 2022 Speech Language Therapy Progress Report 2

J 02/11/2022 Physical Therapy Progress Report 3

K 02/06/2021 Developmental Pediatrics Evaluation 11

L 2021-2022 Enrollment Contract 6

M 09/13/2021 Affidavit of Payment 1

N 2021-2022 Attendance Record 1

O

2021

U.S. Individual Income Tax Return

2

IMPARTIAL HEARING OFFICER EXHIBITS

I Email to Counsel July 6, 2022 2 pages

II Email to Counsel August 16, 2022 3 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”

[2] REDACTED’s Educational Director described ABA. Tr. 72-73.