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NYSED # 572771 / NYC # 226247
FINDINGS OF FACT AND DECISION
Case Number: 226247
NYS Case Identifier Number: N/A
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: Parent
Date of Hearing: 6/15/22
7/12/22
9/13/22
Record Close: 9/27/22
Hearing Officer: Nancy M. Lederman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 15, 2022*
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED]., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 12, 2022*
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 13, 2022*
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
[REDACTED], Aunt
[REDACTED] Principal, [REDACTED]
* All parties appeared via telephone/videoconference.
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
[REDACTED] ([REDACTED]) is a [REDACTED]-year-old student whose [REDACTED] ([REDACTED], or parent) brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2021-2022 school year. The hearing convened on June 15, July 12, and September 13, 2022. Extensions were entered in compliance with state regulations, with a final compliance date of October 18, 2022.
DISTRICT AND PARENT POSITIONS
The due process complaint notice (DPCN) in this case argued that the DOE had not provided. [REDACTED] with a FAPE in the 2021-2022 school year, arguing the district failed to develop and provide an IEP, failed to provide a school assignment, failed to consider related service evaluations, failed to address the parent’s request for IEP, failed to determine eligibility for and provide ESY services, failed to provide various services, and failed to honor the parent’s language rights.
As relief, the parent requested relief of direct payment of tuition for the school year from Sept. 1, 2021 through June 30, 2022, authorization for the parent to obtain compensatory services of various services during July and August 2021 at an enhanced hourly rate of $126, transportation through the end of the school year, an APE evaluation, and an interpreter to facilitate parent participation related to the hearing process. Ex. A.
At hearing on September 13, 2022, the district’s attorney stated that the district was not presenting a prong one case under the Burlington-Carter framework, and also there was no evidence concerning equities under prong three. The parent attorney withdrew the request for evaluation.
FINDINGS OF FACT
[REDACTED], recently appointed principal of [REDACTED], described how the school addressed the child’s behaviors through targeting task avoidance, and transitioning difficulties the child had, explaining that the functional behavior assessment (FBA) and behavior intervention plan (BIP), including proactive strategies and other methodologies were designed to promote reduction in the behaviors. Ex. F. She also said the school offered a 12 month program for children who were extended school year eligible according to their IEP. Tr. 104-123.
In the 2021-2022 school year, the child was in the BASE program, in a 6:1:1 class. [REDACTED] explained that he needed the ABA, both for social and behavioral issues, as well as discrete trials for academics, in which he participated in group and individual 1:1 in the class. She also noted that he had speech, physical therapy, and occupational therapy, speech, taught by a licensed speech pathologist, and physical and occupational therapies, taught by certified assistance overseen by licensed providers. His social skills training included the social thinking curriculum. Asked about progress, she stated that he had learned to de-escalate, which was huge for him. In academics, there was a big improvement in reading, where he moved from decoding a three word sentence to working with the whole book, although still not a grade level. Tr. 104-123.
[REDACTED] testified that she was the child’s aunt, living with her mother who was legal guardian as well as with the child. She testified that she involved in tasks and responsibilities concerning the child’s schooling. Asked about his progress during the 21-22 school year, [REDACTED] noted his speaking in full sentences, able to tell her his needs and wants, and that he could sit and read a book, definitely an improvement from the prior year. She also noted improvement in self-care skills, including brushing his teeth, and particularly fully potty trained since the prior year. Asked about behaviors, she said that he went in phases, but he was outgrowing the phase and had gotten better in the past year. Tr. 90-100.
Contract. The contract with [REDACTED] for the 2021-2022 school year indicated a total price for a 10-month school year, including paraprofessional services, of $112, 300. Ex. DD. An affidavit from the school indicated that the parent had not paid anything to the school, with the remaining balance of the full tuition. Ex. GG. [REDACTED] explained that MR, legal guardian of the child, worked as a home health aide, nine hours a week at an hourly rate of $15, and she was not able to afford the annual tuition at [REDACTED]. Tr. 90-100.
CONCLUSIONS OF LAW
The decision in this case addresses the challenge to the district’s actions and request for tuition for [REDACTED]’s placement at [REDACTED] in 2021-2022. The decision rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
As noted above, the district attorney stated that the district was not presenting a prong one case, conceding that the district had failed to sustain its burden as to providing [REDACTED] with a FAPE, and also there was no evidence concerning equities and prong three. Thus, the decision turns on a determination concerning the appropriateness of the unilateral placement.
Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parent has sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED].
I credit [REDACTED]’s description of the program services provided [REDACTED] at [REDACTED] in academics, social skills training, and speech-language therapy, occupational therapy, physical therapy.
I note the FBA and BIP developed for the child, ABA instruction for social/behavioral issues, as well as the discrete trials for academics, and group and individual instruction in the small 6:1:1 class. Also noteworthy was social skills training that included a social thinking curriculum. He also showed a big improvement in reading, and had learned to de-escalate, which was described as “huge.”
[REDACTED] also described [REDACTED]’s progress at [REDACTED] during the 2021-2022 school year. I credit her description of his speaking in full sentences, able to tell her his needs and wants, and that he could sit and read a book as improvement from the prior year. She also noted improvement in self-care skills, including brushing his teeth, and particularly fully potty trained since the prior year. She also thought his behaviors had gotten better in the past year. In addition to witness testimony, the child’s progress at the school was noted in progress reports throughout the school year. Exs. O-X.
For the reasons noted above, I find that [REDACTED] provided a program for [REDACTED] designed to meet his special education needs in the 2021-2022 school year.
The parent has also requested direct funding to the school, as authorized by case law. Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998); Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY). In this case, [REDACTED] indicated the parent’s inability to afford the tuition and the district representative offered no opinion on equities nor any objection to an award of reimbursement or direct payment. Under the circumstances, direct funding in this case is warranted.
Additional claims.
The request for compensatory services of various unspecified services during July and August 2021 at an enhanced hourly rate of $126 must be denied. Other than the request, there was no evidence from either party or other support in the record concerning the child’s eligibility for compensatory services.
The request for transportation through the end of the school year also lacked any mention during the hearing, and was moot by virtue of the hearing proceeding past the school year in question.
The request for an interpreter to facilitate parent participation related to the hearing process is also moot, as there was neither interpreter nor parent at the date scheduled for the parent’s testimony. The parent was in the hospital and her appearance was waived and the child’s aunt was able to testify.
ORDER
- • The DOE shall provide funding for [REDACTED]’s tuition at [REDACTED] for the 10-month 2021-2022 school year, including paraprofessional services, at a rate not to exceed $112, 300.
- • The parent’s request for compensatory services for July and August 2021 is denied.
IT IS SO ORDERED.
Dated: October 11, 2022
_Nancy M. Lederman_______
NANCY M. LEDERMAN
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 proceedings 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.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS *
2 IEP meeting notice, 2/25/20, 3 pages
3 Prior notice package, 5/11/20, 6 pages
4 Social history, 12/3/20, 4 pages
12 Minutes from IEP meeting, 12/10/21, 2 pages
13 Notice of meeting, 12/10/21, 3 pages
14 Psychoeducational evaluation, 1/14/21, 4 pages
21 Occupational therapy evaluation, 8/3/21, 7 pages
22 Prior written notice, 4/6/21, 4 pages
23 Prior notice package, 12/13/21, 11 pages
24 SESIS events log, 2/1/19 - 6/15/22, 29 pages
25 Physical therapy tracking, 8/5/21, 7 pages
26 Neuropsychological evaluation, 11/19/21, 6 pages
27 Occupational therapy evaluation, 8/3/21, 7 pages
28 Speech-language evaluation, 8/5/21, 6 pages
* There were no exhibits # 1, 5-11, or 15-20 entered into evidence.
PARENT EXHIBITS
A Due process complaint, 5 5/5/22, 10 pages
B IEP, 4/2/19, 24 pages
C IEP, 4/2/20, 30 pages
D IEP, 12/10/21, 55 pages
E Functional behavior assessment with behavior intervention plan, 3/31/20, 9 pages
F Functional behavior assessment with behavior intervention plan, 12/3/21, 9 pages
G Neuropsychological evaluation, 5/2/22, 27 pages
H [REDACTED] progress report, academic, 1/9/20, 3 pages
I [REDACTED] occupational therapy annual review, 1/15/20, 3 pages
J [REDACTED] physical therapy annual review, 3/5/20, 2 pages
K [REDACTED] speech-language therapy annual review, 3/5/20, 3 pages
L [REDACTED] academic annual review, 3/9/20, 4 pages
M [REDACTED] progress report, annual goals, June 2020, undated, 18 pages
N [REDACTED] progress report annual goals, August 2020, undated, 20 pages
O [REDACTED] occupational therapy annual review, 1/15/21, 3 pages
P [REDACTED] academic annual review, 1/21/21, 4 pages
Q [REDACTED] speech-language therapy annual review, 2/18/21, 3 pages
R [REDACTED] physical therapy annual review, 3/25/21, 4 pages
S [REDACTED] progress report annual goals, June 2021, 9 pages
T [REDACTED] annual academic review, 12/6/21, 3 pages
U [REDACTED] occupational therapy annual review, 12/6/21, 4 pages
V [REDACTED] speech-language therapy annual review, 12/7/21, 3 pages
W [REDACTED] physical therapy, 12/10/21, 4 pages
X [REDACTED] progress report, annual goals, 4/20/22, 9 pages
Y Request for evaluation, 3/30/21, 4 pages
Z Prior written notice, 4/7/21, 4 pages
AA Ten-day notice letter, 6/21/21, 2 pages
BB Student's class schedule, 2021/2022, 1 page
CC Determination letter, 6/9/21, 1 page
DD Parental guarantee of tuition, 9/13/21, 2 pages
EE Annual review meeting worksheet and notes, 12/10/21, 4 pages
FF Student attendance report, 4/20/22, 1 page
GG Tuition affidavit, 4/25/22, 1 page
HH Email from parent, 5/5/22, 2 pages
II Email from the CSE, 5/5/22, 2 pages
JJ Findings of fact and decision, Case # 207558, 6/20/22, 17 pages
KK Ten-day notice letter, 6/24/22, 4 pages
LL Program description, BASE program, undated, 2 pages
MM Statement, [REDACTED], undated, 5 pages