New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 577048 - NYC: 229579

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: September 14, 2022, March 8, 2023 and April 4, 2023 Record Closed Date: April 4, 2023

Hearing Officer: Audrey Daniel, Esq.

Date of Decision: April 14, 2023

Names and Titles of Persons who appeared at the September 14, 2022 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

Names and Titles of Persons who appeared at the March 8, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Parent Parent

REDACTED, Educational Director, REDACTED

REDACTED, Financial Officer, REDACTED

Names and Titles of Persons who appeared at the April 4, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Occupational Therapy Supervisor, REDACTED

I. Introduction and Procedural History

On August 4, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A pendency hearing was held on September 14, 2022, status conferences were held on November 15, 2022 and January 13, 2023 and hearings were held on March 8, 2023 and April 4, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective April 4, 2023.

II. Background

Parent filed a due process complaint on July 6, 2022, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at REDACTED. (Exh. A). There were two days of hearing. The REDACTED did not put on a case but argued that Parent did not prove that the unilateral placement was appropriate. (Tr. 117). Parent had four witnesses at hearing, including Parent, and the educational director, financial officer and supervising occupational therapist, all from REDACTED. 4

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student has been receiving the requested placement pursuant to a pendency agreement dated September 9, 2022, providing for services starting the date of the due process complaint, July 6, 2022. (Exh. A and Exh. C). The request was based on an unappealed Findings of Fact and Decision finding the same program appropriate. (Exh. C).

A psychological evaluation and psycho-social report, conducted on December 27, 2022, diagnosed Student with Autism and Moderate Intellectual Disabilities. He presented with profound delays with receptive and expressive language, very poor range of intellectual functioning, and low adaptive functioning. (Exh. E and Exh. F). The evaluator recommended necessary assistance as Student is “incapable of adequate self-care, demonstrates severe, and cannot ensure his own safety.” (Exh. 8, page 9).

Student is attending REDACTED for the 2022-2023 school year. REDACTED is a full-time independent school for students with autism spectrum disorders and utilizes the Integrated Model, which uses ABA therapy, speech and occupational therapy, sensory integration training, music therapy and play therapy. (Exh. I). The school assesses students in 200 different areas and develops a program targeting the student’s specific needs. (Exh. I). There are a total of 29 students in six classrooms. There are about 3-7 students per classroom, with a lead teacher, supervisor of the classroom, speech and language pathologist; there are seven ABA instructors, and a behavioral consultant. There is also an occupational therapist that treats those students. The staff is trained prior to working with students. They meet with parents as needed, sending home weekly notes, and providing support as needed. They use the Autism Curriculum Encyclopedia (“ACE”) to develop the program and track progress and make changes as needed. (Tr. 39-45).

Student has been attending the school since he was five. He is mostly non-verbal and is a “rigid” learner. He uses assistive technology for communication. He has a strong visual memory and does well with fine motor activities. (Tr. 45-7). He has some behavioral issues as he does not realize his size and he becomes aggressive, including pinching and was self-injurious at the beginning of the school year. Elopement is also an issue. They added the “Circles Curriculum” to address his behaviors. (Tr. 47-51). 5 The school developed an Individualized Education Program for Student and provided progress reports based on the goals. (Exh. L). A behavior plan was also developed for Student. (Exh. M). Student’s schedule includes ABA therapy, occupational therapy, speech and language therapy, all provided individually. (Exh. J).

In developing a plan for Student’s education, the school also conducted a speech and language evaluation, developed a curriculum plan based on the evaluation and provided progress reports assessing Student’s progress towards his goals. (Exh. N, Exh. O and Exh. P). An occupational therapy evaluation and progress report were also submitted as evidence. (Exh. Q, Exh. R and Exh. S). An “ACE Progress Snapshot” was provided for the time period between July 1, 2022 and April 26, 2023 showing progress in all functional domains. (Exh. T). According to the school, Student has made good progress this school year. They have a chat room, and they send home progress reports. They work on communication with the family to help generalize skills into the home and support Parent. The midyear progress report indicates progress for the first three quarters of the 2022-2023 school year. The school attended Student’s CSE meeting, and the school and the Parent disagreed with the 6:1:1 program, as it did not address Student’s need for ABA and did not provide for a behavioral plan and did not provide for his need for individualized instruction. (Tr. 62-68). According to Parent, Student is making slow but steady progress, and his ADL and vocational skills are progressing. His behavior and communication skills are also progressing. (Tr. 89-90).

The school worked on goals to prepare him for work, including functionality of reading and math, they are working on ADL’s, including self-care. They are working on using his language more functionally, in part to reduce behaviors. They used a number of assessments, including the AFLS and PEAK assessments to determine his needs. (Tr. 55-6). They use ABA therapy with Student, including high rates of reinforcement. A plan was developed for Student (Exh. L). Goals are based on the assessment and goals from the previous year and are developed by the team, including the related service providers. (Tr. 51-2).

According to the supervising occupational therapist, they assess students after the spring break to determine Student’s needs, including observations and assessment, and develop Student’s IEP goals. They developed goals for ADL and regulatory goals. Student receives OT services five times per week for 45 minutes. It takes Student a long time to initiate activities, 6 and he is easily distracted. Progress is assessed through observation and his session notes, and his goals are “scored” quarterly. Based on his progress, they change the goals as needed. Student made progress, but he needs skills broken down into the smallest components. They work on learning the skills itself and then generalizing the skill. Progress updates are provided to Parent, his progress is reported weekly, and they collaborate with parents to help generalize the skills as well. They collaborate with Student’s teacher and other providers constantly. Student is at four different vocational sites and is enjoying it. Wellness and leisure skills, processing speeds, initiation, response time, and going outside his comfort zone continue to be challenging for Student. He continues to struggle with initiation, including at the work sites, he is less dependent, but still needs assistance to initiate. (Tr.104- 115).

Parent signed an enrollment contract on September 12, 2022. (Exh. G). Rather than a set rate for tuition, Parent is billed “a la carte” for services provided at rates provided by the agreement, but also provided a services plan for Student, including ABA therapy and related services. (Exh. G). Services are billed for the hours that the services are provided. They bill based on the hours provided. The enrollment contract includes the program recommended for Student by the program director. (Exh. G). Sometimes the contract services and the services provided differ. (Tr. 75-9). The agreement provides for cancellation if Student was placed is an appropriate public-school classroom. (Exh. G, page 2). Affidavits were provided for services from August of 2022 through January of 2023. (Exh. H). Parent provided proof of income by submitting her 2020 tax return. (Exh. U). Parent has not made payments, as Student is receiving services pursuant to pendency. (Tr. 87-8).

Parent filed a Ten-Day Notice on June 21, 2022. (Exh. B). There is nothing in the record to indicate a response.

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set 7 forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009). 8

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED conceded that FAPE was not provided. (Tr. 117). Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 9

359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419). 10

Although the REDACTED argues that Parent has not met her burden of proof that REDACTED is an appropriate placement, I disagree. Parent has shown, through testimony, and documentation, that REDACTED understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year. 12

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The REDACTED shall fund/reimburse Parent for services provided at REDACTED for the 2022-2023 school year within thirty days of receipt of invoice or proof of payment and proof of attendance and delivery of services.

Dated: April 14, 2023

AUDREY DANIEL, 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 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. 14

EXHIBITS ADMITTED AT HEARING

None

A. Confirmation Ten Day Notice with outgoing email and Email 07/06/22 13 pages

B. Confirmation 06/21/22 6 pages

C. Order of Pendency, 2022-2023 09/09/22 2 pages

D. Individualized Education Plan 03/01/22 29 pages

E. [REDACTED] Psychological Evaluation 12/27/22 9 pages

F. [REDACTED] Psycho-Social report 12/27/22 2 pages

G. REDACTED Enrollment Contract July 2022 – 09/12/22 8 pages

I. H REDACTED Services Affidavits 7 Jan. 2023 [REDACTED] Program Description 2022-2023 1 page

J. REDACTED Student Schedule July 2022– 2022-2023 1 page

K. REDACTED Current Attendance Record Feb. 2023 1 page

L. REDACTED Curriculum Plan / IEP with Progress Notes 2022-2023 13 pages

M. REDACTED – Student Behavior Plan 2022-2023 2 pages

N. Speech Evaluation Report May 2022 14 pages

O. Speech Curriculum Plan 2022-2023 6 pages

P. Dec. 2022 Speech and Language Progress Report 6 pages

Q. Occupational Therapy Evaluation June 2022 4 pages

R. 15 Dec. 2022 Occupational Therapy Progress Report March 4 pages

S. Occupational Therapy IEP Scores 2023 3 pages

T. ACE Progress Snapshot 2022-2023 88 pages

U. Parent’s 2021 Tax Return Impartial Hearing Officer None. 2021 5 pages