New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 229170

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: October 3, 2022

November 21. 2022

December 21, 2022

December 29, 2022

January 30, 2023

March 2, 2023

April 18, 2023

May 2, 2023

Actual Record Closed Date: May 5, 2023

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 [REDACTED] (“the student”) was conducted by me remotely via videoconference.

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated July 19, 2022. (Ex. A) I was appointed Impartial Hearing Officer on July 21, 2022. A prehearing conference was conducted on August 26, 2022. Status conferences were conducted on various dates between October 3, 2022 and March 2, 2023. The evidentiary hearing was conducted on April 18, 2023, April 25, 2023 and May 2, 2023.

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, closing statements and receipt of the transcript and issuance of the decision. 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 May 30, 2023. The record closed on May 5, 2023 upon my receipt of the final transcript.

Positions of the Parties

The parent asserts that the February 15, 2022, IEP was procedurally and substantively deficient and that an appropriate placement was not provided. Therefore, the parent claims, the district failed to provide a FAPE for the 12-month 2022-2023 school year (“SY”). The parent unilaterally enrolled the student in [REDACTED] (“the School”), asserts that that placement was appropriate, and seeks district funding for that placement, through direct payment. The parent assets there is no basis in equity for reduction or denial of district funding. (Ex. A; T168-173)

The district asserts that provision of a FAPE is established via the documents in evidence and further, that the parent has failed to establish that the unilateral placement is appropriate. The district does not claim that equitable consideration provide a basis for limitation or denial of the relief requested. (T165-168)

Cases Presented

Both parties submitted documentary evidence for admission. (A list of documents in the record is appended).

The district presented no witnesses. The parent presented the testimony of the parent presented the testimony of: the Curriculum Supervisor-BCBA at the School; the student’s mother.

Finding of Fact and Conclusions of Law

A Initial Factual Findings

Persuasive and uncontested, unrebutted evidence establishes that:

In the 20212-2023 SY the student is a 6th grader. Her disability classification is Autism. (Ex. C) WISC-V testing had been attempted in earlier school years but the student was unable to follow the directives of the test. She has severe language deficits and uses a communication device. Her academic skills are at an emerging level. She is reported to present with Sensory Modulation Dysfunction, specifically high arousal, and has severe deficits in fine motor skills, gross motor skills and adaptive behavior. She tantrums and exhibits aggressive behavior, has limited safety awareness and attention limits and is unable to acquire skills in a group setting. (Exs C, 1; T94-95, 111-112, 113, 142-146, 153).

The CSE convened on February 15, 2022 and its recommendations included a 6:1:1 (30 periods) program in a District 75 specialized school, occupational therapy (“OT”), speech language therapy (“SLT”), physical therapy (“PT”), PTAC and a full time 1:1 paraprofessional (toileting). The parent and School staff participated in the review and stated parental concerns. (Ex. C; T94, 149) By communication dated June 21 2022 the parent informed the CSE as to her disagreement with the proposed program and placement and of her intention to place the student in the School if an appropriate response was not received. (Ex. B) The parent did not receive a response. (T152)

An enrollment contract with the School (12 month program) was fully executed on June 30, 2022. Total tuition is $151,917 which includes all related services and a paraprofessional. (Ex. D) A pendency agreement for the period commencing September 7, 2022 was issued by the district. The parent has made no payments and is financially unable to pay the amount due to the School and seek reimbursement. (Ex. Q; T155-156)

The School provides a special education program for students requiring high levels of support and services and student diagnoses include autism and severe disorders. (T79) It conducts formal assessments to determine student capacity as well as on going informal assessments (T81, 100, 127-129) and develops individualized programs and goals for each student. (T79, 100-101; Exs. J, L) Group instruction enables interactions with peers. (T80) An FBA was conducted and a BIP was created for this student by a BCBA, 1 of 3 for 42 children. In 7 classes. (T82-83, 85, 98; Ex. K) Data is collected and evaluated routinely and the programs altered if warranted. (T80-81, 132) The student was placed in an appropriately grouped class with 6 students and a certified special education teacher and a fulltime paraprofessional was provided for each student. (T 85. 108, 109, 135) The School utilizes the principles of ABA and the student receives at least 2 ½-3 hours a day of 1:1 discreet trial instruction as well as 1:1 related services. (T 79, 83, 111) Routine, scheduled staff meetings are held and ongoing scheduled staff training is provided. (T78, 80, 86-87, 107-108) Related services (OT, PT, SLT and counseling) are provided by appropriately licensed staff. (T83-85, 95, 111-113) There is a sensory gym a sensory diet has been created for this student and sensory input is provided. (T84, 93, 99) A communication device is utilized. (T153-154) There are ongoing parent-staff communications and parent training and support is provided. (T87-88, 120-121, 123-125) The student progressed in all areas during the 2022-2023SY. (T90, 98, 101, 112, 116, 134; Exs. L-U )

B Conclusions

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

Prong 1

Evidence supporting the parent’s claim that a FAPE was not provided has been submitted. With regard to the district’s claim that it provided a FAPE, I note that although the district submitted various documents including an IEP, an IEP does not on its own without testimony to explain its appropriateness establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Further, allegations left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” See Appeal No. 01-044; see also Appeal No. 12-006.

I conclude that the district has not met its burden to establish that a FAPE was provided for the 2022-2023 SY.

Prong 2

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). A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. However, the program should be 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.

The district claims that the evidence is insufficient to establish that the program was sufficiently individualized and appropriately met this student’s needs. I do not agree. I note the Curriculum Supervisor-BCBA’s familiarity with the program provided, her daily visits to the student’s classroom, the comprehensive and detailed reports in evidence, which include the goals developed for this student which I find credible and the very substantial 1:1 instruction provided in accordance with individualized programs.

I conclude the parent’s burden to establish that the unilateral program, supported by appropriate related services, was reasonably calculated to enable meaningful progress in light of the student’s unique circumstances has been met.

Prong 3

The district makes no claim that equitable considerations do not support full district payment and, further, I conclude that the evidence in this matter would not support such a claim.

ORDER

It is HEREBY ORDERED that:

1. The student is entitled to full district funding for the program provided by the School for the 2022-2023 SY (not to exceed $151,197). The district shall deduct the amount paid for that school year during the pendency of this proceeding and shall, within 45 days of the issuance of this order, directly pay the School for the balance due.

2. The student is entitled to special education transportation in accordance with OPT regulations during the 2022-2023 SY.

Dated: May 13, 2023

_________/s/

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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.

EXHIBITS

1. District Psychoeducational Evaluation Report, 1/6/2020, 3 pp

2 Teacher Certification, 12/21/2022, 1 p DOE

3. IEP Conference Minutes, 2/15.2022 2 pp DOE

4. IEP, 2/15/2022. 15 pp Parent DOE

A. Impartial Hearing Request and Pendency Form, 7/19/22 9pp.

B. Ten Day Notice and Ten Day Notice Receipt, 6/21/22 10pp.

C. Individualized Education Program, 2/15/22 23pp.

D. School Enrollment Contract, 6/30/22 3pp.

E. School Attendance, 2022-2023 1p.

F. School Tuition Affidavit,1/10/23 1p.

G. School Schedule 2022-2023, 1p.

H. School Related Service Schedule,2022-2023 1p.

I. School Mission Statement, Undated 2pp.

J. School Annual Educational Goals, 2022-2023 5pp.

K. School Behavior Intervention Plan, 2022-2023 9pp.

L. School Initial Educational Report, 11/19/22 8pp.

M. School Initial Physical TherapyReport,1/8/22 9pp.

N. School Initial Speech Report, 10/26/22 5pp.

O. School Initial Occupational Therapy Report,11/19/22 9pp.

P. School Sensory Diet 2022-2023 3pp.

Q. Parent Tax Return 2021 4pp.

R. School Final Educational Report 6/17/22 4pp.

S. School Final Physical Therapy Report, 6/9/22 3pp.

T. School Final Speech Therapy Report, 6/2/22 3pp.

U. School Final Occupational Therapy Report, 6/9/22 3pp. Impartial Hearing Officer NONE