New York City Department of Education, Impartial Hearing Decision

Case Number: 577330 – NYC: 229770

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: [REDACTED]

Region: [REDACTED]

Hearing Requested By: Parents

Dates of Hearing: August 18, 2022

September 20, 2022

October 25, 2022

November 29, 2022

January 5, 2023

February 8, 2023

February 16, 2023

March 23, 2023

Actual Record Close Date: May 10, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 18, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 20, 2022

For the Student:

REDACTED Parent Advocate

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 25, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 29, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 5, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 8, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 16, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 23, 2023

For the Student:

REDACTED Parent Attorney

REDACTED Supervisor @ REDACTED

REDACTED Parent/Mother

For the Department of Education:

REDACTED DOE Attorney

INTRODUCTION

On August 12, 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 2022/23. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about August 12, 2022. The DPC is carried under New York City (“NYC”) Case No: 229770. The impartial hearing was held over a series of dates to complete the record on March 23, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on May 10, 2023. 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 known to the DOE and classified “Autism Spectrum Disorder” (ASD) (Exhibit A). Parent alleges, including but not limited to, REDACTED cannot maintain attention, has difficulty focusing, is impulsive, tends to elope from the classroom, is self-directed and does not comply with directions, struggles with expressive and receptive language skills, has a limited vocabulary and struggles to communicate, often resorts to aggression or destructive behavior, and has a hard time selfregulating (Exhibit A). As a result, Parent contends REDACTED required an educational program consisting of a full-time 12:1:1 special education class that offers individualized support, modified and simplified instruction and direction, repetition review, modeling, prompting, social skills instruction, behavior support paraprofessional, speech language therapy, occupational therapy and counseling services for the extended 12-month 2022/23 school year along with the development and implementation of a behavioral plan to make meaningful academic and functional progress (Exhibit A). The Parent alleges for the 2022/23 school year, the DOE failed to offer REDACTED a free appropriate public education (FAPE), both on procedural and substantiative grounds. The Parent presented the DOE failed to evaluate REDACTED, failed to convene an IEP meeting and failed to offer a placement for REDACTED for the 2022/23 school year (Exhibit A). The Parent gave notice of her concerns to the DOE of its failure to provide REDACTED with an appropriate program and placement and gave notice of her intent to unilaterally re-enroll REDACTED at REDACTED (REDACTED) and seek funding (Exhibits G and H) if the DOE failed to respond and address Parent concerns. Subsequently, as a remedy for the DOE’s failure to provide REDACTED a FAPE for the 2022/23 school year, the Parent filed a Due Process Complaint (DPC) seeking for the DOE to fund the tuition, costs, and expenses of REDACTED’s program at REDACTED for the 12-month 2022/23 school year (Exhibit A).

In an effort to support her position, the parent submitted a documentary exhibit package consisting of fourteen pieces of evidence (Exhibits A-N), and presented two witnesses: REDACTED, Supervisor at REDACTED (Exhibit S) and REDACTED, parent/mother.

The DOE submitted a documentary package consisting of three (3) pieces of Evidence (Exhibits 1-3). At the hearing, the DOE failed to present any witnesses, opted not to present a Prong I case, waived an opening and closing statement and briefly cross-examined Parent witness - REDACTED (T @ 33, 49, 98).

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:

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. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, In the case at hand, the DOE did not provide any witnesses to rationalize its recommended program for REDACTED and represented it would not be presenting a Prong I case or defending a failure to provide a FAPE. Upon due consideration, I find the DOE failed to meet its affirmative burden of showing that it provided a FAPE to the Student for the 2022/23 school year by providing an appropriate IEP and placement for REDACTED, resulting in a denial of FAPE.

The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement. Prong II: Having determined that the DOE did not offer the student a FAPE for the 2022/23 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).

REDACTED is represented as “an institution established to educate children with special needs….services children with learning disabilities, behavioral issues and attention deficit disorders…our program is arranged to provide individual curricula geared towards specific learning needs and styles as well as specialized focus on each student, afforded by the small class sizes” (Exhibit K). It’s mission is “to build in each of our students a strong sense of self, and coach them to become active learners who assume responsibility for their own learning as well as understand and manage their learning disabilities. Our goal is for our students to become effective advocates for themselves as they develop essential academic skills, increase their funds of knowledge, develop age-appropriate social skills and behaviors, and ultimately to enter the mainstream as they become ready” (Exhibit K).

REDACTED testified to being personally familiar with REDACTED (T @ 61). She testified as to his social, behavioral, emotional and academic issues in detail and to the progress he has made through the personalized instruction he receives at REDACTED (T @ 62-79).

In the case at hand, the DOE did not put forth any witnesses. The DOE cross-examination of parent witness did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by parent witness supports that REDACTED was an appropriate placement for REDACTED during the 2022/23 school year. I credit the testimony (T @ 56-93) and documentary evidence (Exhibit J) submitted herein 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 progress. For the 2022/23 school year REDACTED was placed in a class of 7 students with a licensed special education teacher and assistants (T @ 62). He received related services of Speech Therapy, Occupational Therapy and Counseling delivered by licensed and certified professionals in their respective fields (T @ 79-80) and benefitted from a curriculum aligned with ABA methodology (T @ 58).

I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports geared to the development of academic, emotional, social and behavioral skills required by REDACTED to make progress. Specifically, the record supports that REDACTED created a customized program to address all of REDACTED’s challenges that enabled him to make meaningful academic and functional progress which included a small classroom, a curriculum based on ABA methodology, a behavioral plan developed and supervised by a BCBA, social skills training, opportunities to integrate with typically developing peers, individualized attention and support, related services, and numerous other accommodations and supports.

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 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 2022/23 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. 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 parent was anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2022/23 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 2022/23 school year. REDACTED’s Parent timely put the DOE on notice of REDACTED’s unilateral placement and her intent to seek reimbursement (Exhibits B-H, T @ 91-92).

This case involves a situation where the Parent’s financial circumstances limit her ability to make payment to REDACTED (T @ 93). Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned: “By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”

REDACTED credibly testified that no portion of REDACTED’s classroom instruction is religious in nature due to his grade level (preschool) (T @ 80 and 86).

I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 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 and (4). 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 2022/23 school year. Upon due consideration, based upon the foregoing,

ORDER

The Department of Education shall provide direct funding for the cost of the student's tuition, costs and expenses at REDACTED for the 12-month 2022/23 school year in the amount of $144,000.00.

All payments shall be supported by the presentation of appropriate documentation.

This Order shall exclude any payment that may have been previously paid by the DOE pursuant to any Pendency Agreement.

Dated: May 14, 2023

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 MARCH 23, 2023

1. DOE: Psychoeducational Evaluation Report, 12/22/22 -6pp

2. Consent for Use of Electronic Mail, 12/22/22 – 1pp DOE

3. Consent for Initial Evaluation, 12/22/22 – 1pp Parent: DOE

A. Request for Due Process Proceeding and Notice of Appearance, 08/11/22 - 10pp

B. Request for Evaluation and Placement, 09/01/20 - 2pp

C. Follow Up Request for Evaluation and Placement, 2020/21, 09/29/20 - 2pp

D. Request for Placement and Ten Day Notice, 2021/22), 06/01/21 - 3pp

E. Request for Evaluation, Placement and Ten Day Notice, 06/17/21 – 2pp

F. Request for Placement and Ten Day Notice, 06/17/21 - 2pp

G. Request for Evaluation, Placement and Ten Day Notice, 07/26/22- 2pp

H. Follow Up Request for Evaluations, IEP, Placement and Ten Day Notice, 11/25/22 - 2pp

I. Findings of Fact and Decision, 03/14/22 - 9pp

J. Assessments, Plans and Reports, Various – 32pp

K. Student Contract, Program Description and Curriculum, 06/20/22 – 19pp

L. Affirmations regarding Tuition Breakdown and Payments, 12/01/22 -2pp

M. Curriculum Schedule, 2022/23 -2pp

N. Student Attendance, 2022/23 -1pp