New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593952 NYC: 226951

FINDINGS OF FACT AND DECISION

Student's Name: REDACTED

School District: REDACTED

Hearing Requested By: Parent

Record Closed Date: July 19, 2023

Hearing Officer: Dora M. Lassinger

The student’s parent filed a request for an impartial hearing on June 16, 2022, alleging that the student was not provided an IEP or placement for the 2020-2021 and 2021-2022 school years and requesting funding for the student’s unilateral placement at the REDACTED (“ the private school ”) for both school years. The parents also requested funding for an independent educational evaluation, due to the school district’s failure to timely evaluate the student. (Par. Ex. A). I was designated to hear this matter on July 5, 2023, pursuant to 20 U.S.C. Section 1415(f)(1).

A pre-hearing telephone conference was held on August 1, 2022. The compliance date was extended due to settlement negotiations, with a final compliance date of July 26, 2023. (IHO Ex. I). An impartial hearing was held on June 12, 2023 and June 28, 2023.

Department of Education (“DOE”) Position

The DOE did not present any evidence at the hearing. (Tr. p. 51). It did not oppose the parent’s request for funding for the student’s unilateral placement. The DOE opposed the request for funding for the independent evaluation, arguing that the parents failed to disagree with an evaluation produced by the DOE. (Tr. p. 149).

Parent’s Position

The parents argue that the student was denied a FAPE for the 2020-2021 and 2021-2022 school years, as no IEP was provided, and the DOE failed to present any evidence. The parents argue that the unilateral placement was appropriate, and seek direct funding for that portion of the tuition (for the 2021-2022 school year) which was not funded pursuant a pendency agreement.^[1] The parents also seek funding for an independent evaluation, at the rate of $7,500, due to the DOE’s failure to evaluate the student since 2017. (Tr. pp. 143-148).

Evidence at Hearing

The student was diagnosed with Autism in 2017. (Tr. p. 66). His mother described him as a loving and kind child, who can be impulsive, and has difficulty with focus and concentration (Tr. pp. 69-71). He attended various public and charter schools from REDACTED to REDACTED grade, but did not perform well in those settings. (Tr. pp. 75-76). Neuropsychological testing of the student was attempted in 2017, but could not be performed due to the student’s lack of compliance. It was felt that the student would benefit from behaviorbased interventions, such Applied Behavior Analysis (“ABA”) to address his difficulty with impulse control. (Par. Ex. C) The letter from the neuropsychologist recommending ABA services was provided to the CSE; however, ABA services were not offered. (Tr. pp. 79-80).

The student has attended the private school since the end of the 2017-2018 school year. (Par. Ex. HH at 2). The parent testified that he has benefited from the smaller setting and ABA methodologies provided at the private school, and has progressed tremendously. (Tr. p. 81).

The student was the subject of a prior impartial hearing (Case No. 193848). By decision dated October 5, 2021, IHO Hobson-Williams found that the student was entitled to tuition funding at the private school, effective with the date of filing of the due process complaint (on or about May 12, 2020), and during the pendency of due process. (Par. Ex GG). A final decision in that case, dated April 22, 2022, awarded tuition at the private school for the 2019/2020 school year. (Par. Ex. HH at 6).

Pursuant to the pendency order, the student’s tuition for the 2020-2021, and part of the 2022-2023 has already been paid. (Tr. pp. 55-56).

The student was last evaluated by the DOE in 2017 and 2018, when he was in the REDACTED grade. (Par. Ex. F, G). The DOE has not conducted further testing since that time. (Tr. p. 73 ). When tested in 2017, his full-scale IQ was 68, in the mildly delayed range. His academic skills were generally at the low range. (Par. Ex. F). An IEP was developed on July 28, 2017, classifying the student with Autism, and recommending placement in a special class (12:1+1, with related services of Occupational Therapy (“OT”) and Speech Language Therapy (“SLT”). (Par. Ex. B).

The parent testified that an IEP meeting was held for the 2020-2021 school year; but that she did not recall whether she received notification of the meeting, and did not attend. (Tr. pp. 83-84). In a letter dated May 14, 2020, her attorney requested a reconvene of the May 5, 2020 meeting; stating that the parent was unable to participate in the meeting due to an emergency. (Par. Ex. Q). The CSE responded that the meeting proceeded, as it was the date which the parent rescheduled to, and several messages were left. The parent was advised to request a reconvene when she receives a copy of the IEP. (Par. Ex. R). Nevertheless, she never received an IEP. (Tr. p. 85). On August 20, 2020, the CSE sent the parent a prior written notice recommending placement in a special class (12:1+1) with related services. (Par. Ex. O). A school location letter, designating a public-school placement, was sent on August 20, 2020.(Par. Ex. N).

On June 18, 2020, the parents, through their attorney, wrote to the CSE stating that in the in the absence of an IEP or placement for their son, they intended to enroll him at the private school and seek funding. (Par. Ex. D).

On July 14, 2020, the parents signed a parental guarantee of tuition for the Summer 2020 program, in the amount of $12,000. (Par. Ex. M). On October 2, 2020, the parents signed a parental guarantee of tuition for the ten-month 2020-2021 school year in the amount of $79,000. (Par. Ex. L).

Payment of tuition for the 2020-2021 school year was made pursuant to the October 5, 2021 pendency decision. (Par. Ex. GG; Tr. pp. 55-56).

The student’s mother testified that the student received his services remotely during the 2020/2021 school year, and that he adjusted well. (Tr. p. 86).

During the 2020-2021 school year, the student attended the private school as a REDACTED grade student in a class with a staffing ratio of 6:1:1, which utilized ABA strategies. He received SLT once per week individually and twice per week in a group. He received OT twice per week individually. The private school reported that as of April 2021, he was reading on a second-grade level. He presented with a deficit in reading comprehension and was learning how to identify the author’s purpose and point of view. He benefited from small group instruction and one-to-one support. In writing, he was learning how to compose a sentence using commas and quotation marks. He benefited from using of a writing checklist at the end of the assignment. In math, he was performing at the end of second grade level; and benefited from the use of visuals, manipulatives and one-to-one support. His teacher reported that the student requires a highly structured, environment and ABA methodologies with frequent prompting and reinforcement. (Par. Ex. H).

A Functional Behavior Assessment (“FBA”) was performed and a Behavior Intervention Plan (“BIP”) was developed to address the students maladaptive behaviors (inappropriate socialization and tantrums.) (Par. Ex. Z).

The parent testified that she attended an IEP meeting for the 2021/2022 school year. She testified that the CSE continued to recommend placement in a 12:1:1 community school; and that she disagreed with the recommendation. She testified that she did not receive a written IEP or school placement. (Tr. pp. 87-89).

On August 24, 2021, the parents, through their attorney, wrote to the CSE stating that in the in the absence of an IEP or placement for their son, they intended to re-enroll him at the private school and seek funding. (Par. Ex. S).

On September 14, 2021, the parent signed a parental guarantee of tuition for the ten-month 2021-2022 school year in the amount of $82,000. (Par. Ex. FF). The parents are unable to make payment of any outstanding tuition payments and seek reimbursement. (Tr. p. 93).

During the 2021-2022 school year, the student attended the private school as a REDACTED grade student in a class with a staffing ratio of 6:1:1, which utilized ABA methodologies. He received SLT once per week individually and twice per week in a group. He received OT twice per week individually, counseling once per week in a group, and parent training once per month. The private school reported that as of April 2021, he was reading on a third-grade level. In writing, he was working on writing a 3-5 sentence persuasive essay, with the help of a graphic organizer and a writing checklist. In math, he was performing up to a thirdgrade level. (Par. Ex. U). The student progressed emotionally and academically. (Tr. p. 90; Par. Ex. X).

In counseling, he worked on goals of engaging in appropriate peer interaction, utilizing coping strategies and utilizing emotional vocabulary to state his needs and wants. (Par. Ex. W).

The Vice President (“VP”) of education programs for the private school testified that she is certified in Special Education in New York and holds an administrative license in New Jersey. She has served as VP of educational programs, at the private school, since 2019. (Tr. p. 95).

The private school serves students, on the autism spectrum, aged 5 to 21 years old, in a variety of programs and campuses. (Tr. pp. 96-97).

The student’s program utilizes ABA and Collaborative Problem Solving (“CPS”), both of which are research based, data driven programs, which are effective for students on the autism spectrum. (Tr. pp. 97-98).

A large percentage of the teachers at the private school are certified. All related services providers are certified in their fields. All staff receive intensive training. (Tr. p. 101).

The student began attending the private school during the 2017-2018 school year. It was determined that the student had academic skills and social skills deficits; and that he would benefit from ABA programming to enable him to attend. (Tr. p. 106).

The private school performed informal assessments of the student. (Tr. p. 108). The VP testified that the student is bright and capable of learning, within an appropriate environment with appropriate methodologies, with a Behavior Intervention Plan (“BIP”). He benefited from a social skills curriculum, in order to understand how his behaviors affect others. (Tr. pp. 109-110).

The neuropsychologist who proposes to evaluate the student testified that a comprehensive neuropsychological assessment is warranted, due to the lack of cognitive or academic testing since 2017. She testified that her fee of $7,500.00, is within the prevailing market rate in New York City for a comparable evaluation. (Par. Ex. EE; Tr. p. 141).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.

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 be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

2020-2021 School year

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2020/2021 school year. The parent’s testimony that no IEP was developed for either school year was not challenged by the DOE. The placement offer made for the 2020-2021 school year, in a 12:1:1 classroom in a community school, was not appropriate for this student, who required a highly structured setting with small group instruction and one-to-one support.

I find that that the parents demonstrated that the program at the private school was specially designed to meet the student’s unique needs, for the 2020-2021 school year. The student was provided with a small class with a staffing ratio of 6:1:1, with related services of SLT and OT. The program utilized ABA and CPS, both of which are research based, data driven programs, which are effective for students on the autism spectrum.

The student progressed academically during the 2020-2021 school year, when he received remote instruction.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012).

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998).

As to the 2020-2021 school year, I decline to make any finding regarding equitable considerations, as payment of tuition, in full, has already been made, pursuant to a pendency order. The parent’s explanation for her failure to participate in the scheduled May 2020 IEP meeting was vague; although she did request a reconvene. Her testimony that no placement offer was made is inconsistent with the documents in evidence, indicating that a placement was offered in August 2020. I also note that the parents provided 10 -day notice of their intention to unilaterally place the student and seek funding.

2021-2022 School Year

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2021/2022 school year. The parent’s testimony that she did not receive an IEP or placement offer for the 2021-2022 school year was not challenged by the DOE.

I find that that the parents demonstrated that the program at the private school was specially designed to meet the student’s unique needs, during the 2021-2022 school year. The student was provided with a small class with a staffing ratio of 6:1:1, with related services of SLT and OT, counseling and parent training. The program utilized ABA and CPS, both of which are research based, data driven programs, which are effective for students on the autism spectrum.

The student progressed academically and behaviorally during the 2021-2022 school year.

Equitable Considerations

I find that equitable considerations support the parents’ request for direct funding of tuition which is still owed for the 2021-2022 school year. The parent participated in the IEP meeting, and provided 10- day notice of her intention to unilaterally place the student and seek funding. The parents are unable to front the tuition owed and seek reimbursement.

I also note that the DOE does not oppose the parent’s request for tuition funding.

Request for Independent Evaluation

The request for funding for an independent neuropsychological evaluation is granted. No testing of the student has been performed since 2017, although a triennial evaluation was required . 8 NYCRR 200.4 (b)(4). Under these circumstances, the parents were not required to wait first for the school district to perform an evaluation, and then disagree with it, as argued by the DOE.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

1.The DOE shall, by August 9, 2023, directly fund the balance owed to private school, on account of the student’s tuition for the 2021-2022 school year (up to a maximum of $82,000); 2. The DOE shall fund an independent neuropsychological evaluation at the rate of $7,500. Dated: July 21, 2023 Dora M. Lassinger DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

IMPARTIAL HEARING OFFICER EXHIBITS

PARENT’S EXHIBITS

REDACTED

Footnotes

[1] Parent’s counsel stated that tuition for the entire 2020/2021 school year has been paid in full. (Tr. pp. 55-56).The parents still seek a finding that the student was denied a FAPE for that school year, and that the parental placement was appropriate. (Tr. p.138). The only portion of the tuition claim which is not covered by a pendency order is the period from April 22, 2022 (when the final decision was rendered) until the end of the 2021-2022 school year. (Tr. pp. 139, 148).