New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573279 - NYC: 226555

FINDINGS OF FACT AND DECISION

Case Number: 226555

Student’s Name: REDACTED

Date of Birth: REDACTED

District: redacted

Region: redacted

Hearing Requested By: Parents

Dates of Hearing: June 27, 2022

July 21, 2022

August 26, 2022

September 30, 2022

October 17, 2022

Actual Record Close Date: November 17, 2022

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 27, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 21, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 26, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 30, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 17, 2022

For the Student:

REDACTED Parent Attorney

REDACTED Parent/Father

REDACTED Parent/Mother

For the Department of Education:

REDACTED DOE Hearing Representative

INTRODUCTION

On May 25, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about May 20, 2022. The DPC is carried under New York City (“NYC”) . The impartial hearing was held on June 27, 2022, July 21, 2022, August 26, 2022, September 30, 2022, and October 17, 2022 to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on November 17, 2022. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a student classified with an “Autism Spectrum Disorder” (Exhibit A). The DPC alleges REDACTED presents with a variety of significant deficits and interfering behaviors and that REDACTED’s deficits are pervasive and global and they transcend behavioral, communication, social and physical domains. For the 2021/22 school year REDACTED attended the REDACTED (REDACTED). At an IEP meeting held on February 1, 2021, the team recommended a placement in an 8:1:1 special class in District 75 and a 1:1 paraprofessional (Exhibit B). The Parent alleged both procedural violations and substantive inadequacy and claimed the recommended program amounted to a deprivation of FAPE for the 2021/22 school year. Particularly, parent alleged the team failed to conduct adequate evaluations and assessments; the program failed to provide for adequate transition planning and support; the recommended program and placement failed to meet REDACTED’s individual needs and failed to provide sufficient teaching intervention; the team failed to provide for 1:1 instruction; the team failed to provide a sufficient level of services; the team failed to provide individualized parent-training and counseling; the recommendations provided inappropriate and insufficient behavioral interventions; the IEP provided insufficient/inadequate goals and/or objectives; and the team failed to make a methodology recommendation (Exhibit B). The parent alleges giving notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of their intent to unilaterally place REDACTED at REDACTED and seek funding (Exhibit B). The DOE failed to respond. As a remedy for the DOE’s failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks (a). reimbursement for REDACTED’s unilateral placement at REDACTED for the 2021/22 12-month school year, as well as (b) up to 15 hours per week of home and community based ABA/behavioral therapy/instructional support; (c) up to 5 sessions per week of Speech and Language services; and (d) up to 2 sessions per week of Occupational Therapy (Exhibit A, T @ 34).

In an effort to support their position, the parent submitted a documentary exhibit package consisting of twenty pieces of evidence (Exhibits A-T), which included the affidavit of REDACTED, Director of Education at REDACTED (Exhibit P) and REDACTED, REDACTED’s mother (Exhibit T).

The DOE failed to present any witnesses or submit documentary evidence into the record and conceded Prong I (T @ 31). The DOE representative merely delivered an opening statement presenting the position of the DOE that as REDACTED receives ABA support throughout the school day as well as speech language therapy and occupational therapy, any additional ABA, speech, and occupational therapy outside of the school day ought to be denied (T @ 35). The DOE representative then opted not to cross-examine any of parent witness(es).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. A FAPE begins with an IEP developed by its CSE through the IDEA’s procedures that is “reasonably calculated” to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F. 186, 192 (2d Cir 2005). The DOE bears the burden of establishing the appropriateness of its recommendations. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and determine the type of program required for the child.

Herein, the DOE conceded a denial of FAPE to REDACTED therefore no further analysis is required.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Herein, I credit the evidence (Exhibits C, G-T) and testimony (Exhibits P and T) submitted by Parent and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, multi-sensory instruction, modifications and supports required by REDACTED to make progress. I find the evidence and testimony to corroborate that while related services are provided and incorporated into the academic program, the after-school components are appropriate and reasonably calculated to produce an educational benefit for REDACTED (Exhibits C, P-T).

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED, along with the after-school components for the 2021/22 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits O, P and T). I further find the evidence to support the additional after-school speech language services, occupational therapy and home and community based ABA/behavioral therapy/instructional support crucial components in enabling REDACTED to make appropriate progress and prevent regression as per the findings and recommendations of the evaluation obtained by REDACTED’s parents and shared with the DOE (Exhibit C).

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. REDACTED’s Parents timely put the DOE on notice of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibit B).

I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits; (4). that the after-school components were appropriate and reasonably calculated to produce an educational benefit for REDACTED and (5). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2021/22 school year.

Based upon the foregoing,

ORDER

• • It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse/directly fund the cost of the student's tuition at REDACTED (REDACTED) for the 2021/22 school year. All payments shall be supported by the presentation of appropriate documentation;
• • It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse/directly fund the cost of up to 15 hours per week of home and community based ABA/behavioral therapy/instructional support;
• • It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse/directly fund the cost of up to 5 sessions per week of Speech and Language Services; and
• • It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse/directly fund the cost of up to 2 sessions per week of Occupational Therapy.

Dated: November 28, 2022

Maria R. Dispenza

_________________________

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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 ON OCTOBER 17, 2022

Parent:

• • Demand for Due Process and email confirmation, 5/25/22 -13pp
• • 10-Day Notice and email confirmation, 06/17/21 -14pp
• • REDACTED Evaluation, 01/12/21 -7pp
• • Email from Parent to DOE, 01/27/21 -1pp
• • REDACTED Enrollment Contract, 2021/22 -5pp
• • REDACTED Affidavit of Payment, 2020/21 School Year -1pp
• • REDACTED Program Description, 2021/22 -9pp
• • REDACTED Classroom Schedule, 2021/22 -1pp
• • REDACTED OT Progress Report, Spring 2021 December 2021 – 5pp
• • REDACTED SLP Progress Report, Spring 2021 December 2021 -6pp
• • REDACTED Classroom Progress Report, December 2021 – 7pp
• • REDACTED FBA Report, 08/25/20 April 2022 -10pp
• • REDACTED OT Progress Report, June 2022 -6pp
• • REDACTED SLP Progress Report, June 2022 -6pp
• • REDACTED Classroom Progress Report, June 2022 -8pp
• • REDACTED Affidavit and Resume, 10/12/22 -12pp
• • REDACTED Resume, Undated -2pp
• • REDACTED Resume, Undated -2pp
• • REDACTED Resume, Undated -1pp
• • Affidavit of REDACTED, 1-/14/22 -4pp