New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573103 - NYC: 226441

FINDINGS OF FACT AND DECISION

Case Number: 226441

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: September 13, 2022

September 29, 2022

Actual Record Closed Date: October 4, 2022

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”) was conducted by me (remotely, via videoconference.)

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated May 9, 2022, filed May 16. 2022 (Ex. I) I was appointed Impartial Hearing Officer on June 28, 2022. A prehearing conference scheduled for July 7, 2022, was adjourned upon request of the parent and was conducted on July 11, 2022. An Amended Hearing Request was filed on July 11, 2022 and amendment was granted July 25, 2022. Evidentiary hearings were conducted on September 13, 2022 and September 29, 2022. An Interim Order dated September 15, 2022 provided at home SETSS until attendance at a school.

Parties moved to extend the compliance date on various occasions for anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is November 18, 2022. The record closed on October 4, 2022, upon my receipt of the final transcript.

Positions of the Parties The parent asserted in the due process complaint that the March 22, 2022 IEP was defective, that the CSE failed to provide a placement to implement it and that the district failed to provide a FAPE. The parent asserts entitlement to compensatory educational services in the form of a placement for the 2022-2023 school year at a private special education school which is not approved by the State Education Department as a facility with which the district may contract for the delivery of educational services and seeks district funding for tuition at REDACTED (“the School”), The district asserts that it provided a FAPE by issuance of a Nickerson letter, that the requested compensatory services are impermissible prospective relief and equities in this matter favor the district. ^[1] (T148-150)

Cases Presented The district presented no evidence, testimonial or documentary. Documents presented by the parent were admitted into evidence (a list of documents in the record is appended) and the parent presented the testimony of: the student’s mother (“the parent”) and of the School’s Head of School.

Findings of Fact and Conclusions of Law

A Factual Findings

Uncontested and persuasive evidence shows the following:

The student is 2nd grader whose disability classification is Other Health Impairment. His diagnoses include REDACTED.

He has also been diagnosed with ADHD and a Specific Learning Disorder in Reading. His FSIQ is in the high average range at 116 but his overall academic scores are inconsistent. (Ex. C) The student did not comply with teachers and other adults and his behaviors included elopement and aggression. (Ex. B)

The student entered a 12:1:1 special class in a community school in December 2021. His ongoing behaviors there included kicking and hitting teachers, throwing chairs, pushing desks, growling at students, extreme defiance and elopement. (Ex. B)

The CSE re-convened on March 22, 2022 and recommended a 12 month program in a NYSED Approved Non-Public Day School (“NPS”) which included: Special Class 12:1:1, counseling, occupational therapy (“OT”), and a 1:1 paraprofessional (Behavior Support) Daily 0.8. (Ex. C)

The case was referred to the CBST for placement. Packets were sent by it to nine schools. The student was accepted by none, most noting his high level of behaviors and support needs. (Ex. E) There is nothing in the record indicating that the parent did not cooperate with the CBST and that claim has not been made. The parent credibly testified concerning efforts to follow up with the CBST in May. (T141 The CBST notified the district’s school psychologist on June 6, 2022 that the referral was “inactive at the CBST, as we were not successful in securing an approved nonpublic placement….” (Ex. E) The parent was not informed of that at that time. (T141-142)

By correspondence dated August 9, 2022 (P-1 letter), the parent was informed of a legal right to place the student in a NYSED approved day school which could implement the student’s IEP for the 2022-2023 SY. (Ex. G) The parent promptly sought help from the CBST but was at that time informed for the first time that the case had been earlier designated by it as “inactive” and that the school psychologist had been expected by the CBST to notify the parent. (T142)

The parent was unable to identify an NPS which would accept the student. A non-approved private school earlier indicated acceptance of the student but that placement was lost to another student. ^[2] (T144) Subsequently the School offered a conditional acceptance. (Ex. F)

The School is a New York State registered special education school founded by a BCBA/LSW/special education teacher and a certified special education/general education teacher. (T101, 115) It currently serves some 96 students, 5-18 years old. (T116) OT, SLT, PT and mental health services are provided, based upon review of student records and subsequent assessments when indicated, by full time employees who are NYS licensed in their fields. (1T103, 125-126) Home room classes range from 6-8 students with a head teacher, a lead behavior therapist and several registered behavior therapists (the precise number depending on the needs of the students in the class.) (T103, 122) All staff are appropriately qualified and are overseen by educational supervisors, who are certified special educators, and five BCBAs. (T.102, 117, 122-123) Home room classes are grouped by social peer considerations and instructional classes are grouped based upon ability determined by standardized assessments. (T102-103, 104-105, 107, 124, 118) FBAs are conducted and BIPs covering the entire school day created under the supervision of BCBAs who also supervise the data collection. (T105) This student would be placed in a home room class of eight students of similar ages with a head teacher, a lead behavior therapist and four RBTs and would receive 1:1 behavioral support during his entire school day although not from the same person. (T119, 121-122, 130) Data is graphed to determine progress. (T113) Staff has knowledge of this student’s needs and experience in dealing with students with his diagnoses including PANS. (T107-110) Staff development is provided, parent communication is substantial and the School works with outside providers if permitted. (T106, 122, 112)

Tuition includes all related services provided up to 3x30 per week in each service. The sole basis for differences in tuition rates between students in the School are the degree of individual behavioral/developmental support service provided (three categories) and in circumstances where more than 3x30 sessions per week in each discipline are required. It has been determined that this student requires continuous 1:1 behavioral support throughout the entire day behavioral and the tuition for that level is $158,000 for a 12 month program, to be prorated based upon the student’s start date. (T126-128, 135-136) There is no claim that this student requires more than 3 sessions per week in each discipline.

B Conclusions The DOE bears the burden of proof on the issue of FAPE. N.Y. Educ. L. § 4404 (1)(c). It did not present a case at hearing, submitting no evidence, documentary or testimonial, with regard to that issue. Accordingly, it has failed to establish, as required, that it provided a FAPE for the 2022-2023 school year.

The parent seeks compensatory education in a private school for the denial of a FAPE in the school year at issue. It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) However, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. Moreover, it is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.

In this matter, the district should have provided a placement in an appropriate private school and failed to do so. I give no weight to its claim that the issuance of “Nickerson Letter” provided a FAPE and therefore satisfied its responsibilities. I note that the CBST had tried, failed and given up after its unsuccessful efforts to identify a State approved NPS.

With regard to the relief requested, tuition for the School, substantial credible, detailed, fact-specific, uncontested and unrebutted evidence shows that the School is appropriate for this student. I note my conclusion that the School would be determined to be appropriate pursuant to the more stringent Burlington/Carter analysis. ^[3]

The district has asserted no claim that the school is not appropriate or explained its claim that equities in this matter, relevant for a compensatory services request, support the district. I conclude that in this matter equitable considerations favor the parent and provide no basis for denial of the requested relief.

However, the district also claims that the parent is seeking impermissible prospective relief. I note that the sole case relied upon by the district principally addressed a situation in which both tuition and compensatory services were sought and, further, noted that the Second Circuit’s approach to compensatory education may leave room for an award of compensatory education when tuition reimbursement is denied under a Burlington/Carter analysis. Appeal No. 20-151.

Further, with regard to the district’s claim that the relief sought is not permitted because the totality of the 2022-2023 school year includes services not yet provided I note that the district was seeking a placement for the entirety of the school year and the Nickerson Letter/P-1 Authorization stated that a placement made pursuant to that would be applicable for the entirety of the 2022-2023 school year. (Ex. G)

Based upon the foregoing, the relief requested by the parent is granted.

ORDER

It is hereby ordered that:

The district shall fund the student’s tuition at the School for the 2022-2023 school year (12 months at the rate of $158,000) prorated from the date the student commences attendance.

The district may require evidence that the tuition charged for the level of 1:1 support provided is consistent with that for other students receiving the same level of 1:1 support.

Dated: October 4, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

NONE

Parent

A Amended Hearing Request, 7/11/22, 7 pgs.

B IEP 4/5/22-3/22/23, 3/22/22 26 pgs.

C Neuropsych Assessment, 2/28/22, 34 pgs.

D Medical Letter, 8/17/22, 1 pg.

E CBST Referral, 8/10/22, 3 pgs.

F School Conditional Admission, 8/10/22, 2 pgs.

G P-1 Authorization, 8/9/22, 2 pgs.

Impartial Hearing Officer

I Hearing Request, dated 5/8/22 filed 5/16/22

Footnotes

[1] In addition to the lack of a placement, the due process complaint included claims of deficiencies in the IEP. (Ex. A) Those claims were not addressed during the hearing and I conclude they have been abandoned.

[2] That school was named in the amended hearing request as that was the school known at the time of filing. The parent thereafter identified the School in disclosure and at the September 13, 2022 hearing when the September 29, 2022 hearing was scheduled for evidence concerning the School. I conclude that the relief sought in this case was adequately specified in the hearing request and I also note my conclusion that there was no prejudice to the district from the substitution.

[3] When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.