New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 578072 - NYC: 230255

DRAFT FINDINGS OF FACT AND DECISION

Case Number: REDACTED

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: 2

Hearing Requested by: REDACTED

Dates of Hearings: September 23, 2022

October 27, 2022

November 29, 2022

December 21, 2022

January 5, 2023

Record Close: April 28, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq. Case No. REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 23, 2022 *

For the Student:

REDACTED., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 27, 2022 *

For the Student:

REDACTED., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 29, 2022 *

For the Student:

REDACTED., Attorney

REDACTED, Parent Student

REDACTED Student

REDACTED

For the Department of Education:

REDACTED., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 21, 2022 *

For the Student:

REDACTED., Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 5, 2023 *

For the Student:

REDACTED., Attorney

For the Department of Education:

REDACTED., Attorney

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

REDACTED (Student) is a REDACTED-year-old student whose mother REDACTED (Parent) brought the instant action, arguing that the DOE had failed to provide her child with a free appropriate public education (FAPE) for the 2021-2021 and 2022-2023 school years.

The hearing convened on November 29, 2022, and continued December 21, 2022. The Parent was represented by REDACTED., and the District was represented by REDACTED. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated August 25, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 and 2022-2023 school years, requesting reimbursement for unilateral placement at REDACTED (School) for the 2022-23 school year because of the DOE’s alleged failure to locate a program, public or private, that could implement the student’s Individualized Educational Programs (IEPs). It further requested that the Student be awarded compensatory services, an evaluation, and transportation.

At hearing on November 21, 2022, the District representative claimed that she had just received Parent’s disclosure and did not have time to prepare a case. She indicated that the District was taking no position. This hearing officer explained that the District failed to appear REDACTED at the preliminary hearing dated September 23, 2022, and a subsequent status conference held October 27, 2022. It is also noted that the Parent’s attorney submitted the disclosure to the District in a timely manner. As such, the hearing went forward. The District offered no documentary or testamentary evidence and elected to not give an opening statement.

The Parent offered documentary evidence including testimony given by the Parent, REDACTED, and the Assistant Principal of the REDACTED, REDACTED.

FINDINGS OF FACT

The Student is a REDACTED-year-old young man with the classification by the Committee on Special Education (CSE) of Autism. (P exhibits H-1, I-1). An independent neuropsychological evaluation conducted on August 17, 2016, concluded that the Student needs ABA services in an appropriate, small-class setting and that the Student “is alert, responsive and has basic skills that suggest that he will be able to progress in the type of setting recommended.” Further the student suffered from language impairment, associated neurodevelopmental, mental or behavioral disorder, and deficits in social communication and social interactions. (P exhibit J19-21). An independent neuropsychological evaluation commissioned by the department in 2020 confirmed the Student’s autism diagnosis, documented his deficits in communication and social skills and general intellectual functioning below the 0.1 percentile. (P exhibit M-2-4, 12).

The Student attended the REDACTED from the 2019-2020 school year until the 2021-2022 school year. (P exhibits F, G, H). At the time of the March 16, 2021 IEP, the student had made no progress in either reding or math (P exhibits G, H).

The Student’s IEPs have repeatedly determined that he requires speech-language therapy REDACTED and provisions for assistive technology devices and services. However, these services were removed from his IEP without evaluation or explanation. (P.G-14, H-19). Similarly, occupational therapy has been identified as being necessary, and it was stated that the Student needed increased support in this area (P exhibits G, H, I, Q) however, the Parent noted that the goals provided were not specific enough.

On June 29, 2022, the Parent gave notice to the Department of her intention to unilaterally place her child at the REDACTED and that she was seeking funding for that placement. (Z-1-2). The District responded on July 18, 2022 stating that that placement was not appropriate. ({AA-1). The Parent executed a contract with REDACTED on July 11, 2022 (P exhibit CC), and the Student began attending on July 18, 2022 (P exhibit DD).

At REDACTED, the Student is in a class with a 6:1:1 student to staff ratio. (Tr. 48), The Student receives classes daily in math, science, language arts, socials studies social thinking, and life skills. (P exhibit EE-1). He also receives occupational therapy, physical therapy, and speech-language therapy from state-licensed and state-certified providers (Tr. 51-52). The student has made significant progress in academics and related services as indicated in the appropriate progress reports and assessments. (P exhibits S, T, V and X). The school administrator also testified that the Student made both academic and behavioral progress. (Tr. 64-65, 70-71).

The Parent testified about her inability to make direct payment to the school as she is currently receiving worker’s compensation due to an injury (Tr. 82-83). She indicated that she is satisfied with the support her child receives at REDACTED including the feeding support services provided that the IEP declined to include although they are needed. (Tr. 94-95, 98-99). REDACTED

She also stated that she cooperated with the DOE throughout the process. (Tr. 104-105).

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that 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 the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY 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. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of REDACTED the New York City Department of Education, Appeal No. 13-121.

In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2021-2022 and 2022-2023, neither did she provide any documentary evidence or witness testimony. The District also did not note any issues concerning equity in this matter.

For the reasons noted, I find the district failed to provide a FAPE for the student for the 2021-2022 and 2022-2023 school years. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at REDACTED. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the school REDACTED

Director.

For all the above, I find that the Parent has demonstrated the appropriateness of the program at REDACTED for the Student for the 2022-2023 school year. ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, the Parent establishes sufficient justification unilaterally placing the Student at the REDACTED by demonstrating that the Student was not making progress at the previous placement, and was not even receiving all of the services recommended by the IEPs. REDACTED

Furthermore, the District did not offer any proof to challenge equities favoring the Parent. REIMBURSEMENT.

A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).

The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove

v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation). REDACTED

In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the progress reports, evaluations, and testimony of the Parent.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.

The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).

3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).

4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.

5. Whether there was a lack of parental cooperation with the school district. REDACTED

C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)

In this case, the Parent gave timely notice, and established that she fully cooperated with the District.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. The DOE failed to provide the Student a FAPE for the 2021-2022 and 2022-2023 school years;

2. The DOE shall provide direct funding for the student’s tuition at the REDACTED school for the 2022-2023 school year;

3. The DOE shall consider the assistive technology evaluations developed for the student and conduct an assistive technology evaluation for the student within 30 days of this decision.

4. Compensatory services of 24 hours of Speech-Language Therapy from a community-based service provider based on the March 16, 2021, and May 5, 2022, IEPs for two 30-minute sessions per week at the agency’s normal and customary rate; and;

5. The DOE shall provide for and reimburse or directly fund transportation between home and school and related services through the end of the 2022-2023 school year.

IT IS SO ORDERED.

Dated: May 9, 2023

Annette Hicks Gill

ANNETTE HICKS GILL

Impartial Hearing Officer

Case No. REDACTED

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 proceedings 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. REDACTED

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Hearing Request 08/25/2022 13 pages

B. Acknowledgment of Hearing Request 08/30/2022 2 pages

C. Resolution Agreement re Assistive Technology 10/2//2022 D [reserved] 2 pages

E. IEP 05/04/2018 20 pages

F. IEP 06/25/2019 21 pages

G. IEP 02/24/2020 19 pages

H. IEP 03/16/2021 28 pages

I. IEP 05/05/2022 33 pages

J. Neuropsychological Evaluation REDACTED 08/17/2017 25 pages

K. Assistive Technology Evaluation Addendum 08/07/2017 5 pages

L. Transition Assessment 12/00/2019 3 pages

M. Neuropsychological Evaluation REDACTED 04/10/2020 14 pages

N. Speech-Language Evaluation 06/30/2020 7 pages

O. Clinical Swallowing Evaluation 10/01/2021 6 pages

P. Transition Evaluation 12/14/2021 13 pages

Q. Occupational Therapy Evaluation 01/14/2022 10 pages

R. Physical Therapy Evaluation 02/08/2022 11 pages

S. Progress Report- Physical Therapy 08/10/2022 3 pages

T. Progress Report- Occupational Therapy 08/19/02022 10 pages

U. Progress Report- Speech Therapy 08/19/2022 3 pages

V. Behavior Intervention Plan 10/14/2022 4 pages

W. Behavior Intervention Plan Case No. REDACTED 10/14/2022 4 pages

X. Progress Report -Academic 10/14/2022 3 pages

Z. Y [reserved for proposed Assistive Technology Eval] Ten-Day Notice 0629/2022 2 pages

AA. Determination Letter 07/18/2022 1 page

BB. Class Schedule- July-August 2022 07/00/2022 1 page

CC. Non-Public School Tuition Contract 07/11/2022 4 pages

DD. Student Attendance Record 0819/2022 1 page

EE. Class Schedule- September 2022-2023 09/00/2022 1 page

FF. Tuition Affidavit 09/0102022 1 page

GG. REDACTED Program Description undated 2 pages

HH. REDACTED referral to CSE 05/08/2020 1 page

II. FOFD (Case No. REDACTED) 08/10/2021 9 pages

JJ. Parent’s Form 1040 Income Tax Return 2021 2 pages

KK. Meeting Notice 03/30/2022 3 pages

LL. Physician’s Recommendation for Para Services 04/29/2022 3 pages

MM. Physician’s Progress Notes 04/29/2022 3 pages

NN. E messages between Parent and REDACTED 05/24/2020 3 pages

IHO EXHIBITS

None