New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 580775 - NYC: 232694

FINDINGS OF FACT AND DECISION

Student’s Name: 1 [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: September 6, 2022

Date(s) of Hearing: November 16, 2022

December 8, 2022

January 18, 2023

February 13, 2023

March 20, 2023

April 19, 2023

May 17, 2023

June 14, 2023

July 14, 2023

Actual Record Closed Date: September ^[1], 2023

Date of Decision: September 15, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Katia Mehu

NAMES AND TITLES OF PERSONS WHO APPEARED

November 16, 2022:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

December 8, 2022:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

January 18, 2023:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

February 13, 2023:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

March 20, 2023:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

April 19, 2023:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

May 17, 2023:

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

June 14, 2023:

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Clinical Coordinator, [REDACTED]

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

July 14, 2023:

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Clinical Coordinator, [REDACTED]

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (IHO) on Parent’s Due Process Complaint (DPC) filed on or about September 6, 2022, on behalf of [REDACTED] (Student), for the 2022-2023 school year. (Parent Exh. A-1) 2. Parent filed the complaint against the New York City Department of Education (DOE, District, or CSE).

The undersigned was appointed on September 22, 2022. A prehearing conference was held on October 17, 2022, during which District’s representative reported the dispute was under investigation, and Parent intimated she would request the matter proceed to a pendency hearing. Status conferences took place on the following dates: November 16, 2022; January 18, 2023; February 13, 2023; March 20, 2023; April 19, 2023; and May 17, 2023.

During the November 16, 2022 status conference, a determination was made that a pendency hearing was warranted. The pendency hearing took place on December 8, 2022. Parent was represented by [REDACTED], and District was represented by [REDACTED]. District’s representative contended the DOE would have been able to provide Student with the recommended IEP program but were not afforded the opportunity to do so, as Parent had already chosen a placement and filed a 10-day notice before the start of the 2022-2023 school year. Parent’s representative countered pendency at [REDACTED] ([REDACTED]), was warranted, as the placement was a state-approved special education program in a 6:1:3 setting, which was mandated in the November 2021 IEP. Parent’s representative also argued District had, in fact, had the opportunity to resolve the situation before a 10-day notice was filed but had not done so. A pendency order was issued on February ^[2], 2023.

On February 13, 2023, another status conference occurred. Parent was represented by [REDACTED], and District was represented by [REDACTED]. The parties were pursuing a negotiated settlement, and an extension of the compliance date was requested to allow more time for a negotiated resolution.

The next status conference took place on March 20, 2023. Parent was represented by [REDACTED], and District was represented by [REDACTED]. The parties informed the undersigned that a settlement was still being negotiated and documents still needed to be exchanged. Another extension of the compliance date was requested, and a status conference was scheduled for April 19, 2023, to be followed by a merits hearing on May 17, 2023.

During the April 19, 2023 status conference, Parent was represented by [REDACTED], and District was represented by [REDACTED]. Parent’s representative reported the documents requested by District had been submitted, and District informed the undersigned that said documents were currently under review. An extension was requested for the parties to further pursue settlement. The May 17, 2023 merits hearing was adjourned and converted to a status conference.

On May 17, 2023, Parent was represented by [REDACTED], and District was represented by [REDACTED]. The District informed the undersigned that, due to the nonexistence of a document requested by District, the settlement negotiations had stalled and a merits hearing would be necessary. The undersigned scheduled a hearing and, at the parties’ joint request, granted an extension of the compliance date.

On June 14, 2023, the merits hearing convened. It was a closed hearing. No significant agreements occurred, nor were any motions filed, before the hearing proceeded. Parent was represented by [REDACTED]. DOE was represented by [REDACTED]. The district representative did not present a defense of the provision of a free appropriate public education or move for the admission of documentary evidence. (RT 06/14/2023, at 106-07.) Parent’s representative moved for the admission of 8 documents into the hearing record, and the exhibits were admitted into evidence without objection. (Id. at 113-14.) Parent testified on behalf of Student and was cross-examined. (Id. at 125-36.) [REDACTED], a clinical coordinator at [REDACTED], also testified on behalf of Student. (Id. at 140-63.) The due process hearing concluded on July 14, 2023. Parent was represented by [REDACTED]. DOE was represented by [REDACTED]. Witness [REDACTED] concluded her testimony on direct examination and was cross-examined. (RT 07/14/2023, at 182-217.)

The parties submitted closing briefs on August 18, 2023, and August 19, 2023. District’s representative argued Parent had not established that [REDACTED] is an appropriate placement for Student. He also asserted that, during the hearing, Parent had sought an alternative form of relief which falls beyond the scope of the DPC in question. For those reasons, he moved for the matter to be dismissed. In her closing brief, Parent’s representative reiterated that District had denied Student a FAPE, [REDACTED] was an appropriate placement for Student, and District’s direct payment of tuition was warranted. The record was closed on September 1, 2023. The parties requested an extension of the compliance date for the preparation of the transcripts and the issuance of the FOFD.

JURISDICTION

The due process hearing was held, and a decision on this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. Educational programs for preschool students with disabilities are provided in accordance with Section 4410 of the Education Law and 8 NYCRR § 200.16 of the Regulations of the Commissioner of Education. See also 20 U.S.C. § 1412(a)(10)(A) and 34 C.F.R. §§ 300.130 through 300.144.

BACKGROUND AND POSITION OF THE PARTIES

Student, D.O.B. [REDACTED], was [REDACTED] at the beginning of the 2022-2023 school year and was enrolled at [REDACTED]. (P-A-1.) The Committee on Special Education (CSE) classified Student’s disability as Preschool Student with a Disability. (P-D-1.) On November 12, 2021, the Committee on Preschool Special Education (CPSE) had convened an IEP meeting for Student for the 2021-2022 school year and recommended the following program:

1. Special Class, 6:1:3, 5x5 hours per week;

2. Speech-Language Therapy, Individual Service, 4x30 minutes per week; and

3. Parent Counseling and Training, Group Service, 3x30 minutes per year. (P-D-21). The IEP indicated that the preschool program would be implemented at an approved special education program. (Id.) The 2021 IEP was the last agreed upon IEP, as the CSE developed a Turning 5 IEP for Student on May 11, 2022, that Parent argues is inadequate and not appropriate for Student’s needs.

Neither party made the May 11, 2022 IEP part of the hearing record. Parent reports the May 11, 2022 IEP designated Student’s disability as autism and recommended that Student be placed in a special class with a student-to-staff ratio of 6:1:1 for ELA and math. The IEP further recommended Student receive speech and language therapy and that Parent receive training and counseling.

Parent contends the May 2022 IEP is inadequate and inappropriate, as Student requires more individualized and 1:1 instruction to remain safe and make progress. Below, Parent elaborates on her concerns:

Upon information and belief, this program recommendation is designed for a student with different needs than [Student]. As stated in the IEP, [Student] tends to demonstrate self-harming behavior such as biting or hitting. The 6:1:1 classroom would not provide [Student] with the amount of supervision [Student] needs to remain safe throughout the school day. The CSE also failed to provide [Student] with a 1:1 paraprofessional. The parent expressed these concerns to the CSE, especially for mealtime and toileting since [Student] requires assistance with both. Moreover, despite these behavioral concerns that clearly have potential to interfere with [Student’s] learning and the learning of her peers, the CSE failed to conduct a functional behavior assessment or develop a behavior intervention plan.

(P-A-2.) Parent also contended the May 2022 IEP review team was not validly constituted and the components of the IEP did not adequately describe or address Student’s present levels of performance, goals, management needs, and recommendations. Parent asserts the May 2022 IEP fails to meet IDEA’s criteria of providing student with scientifically-based instruction and special education and supplementary aids and services “based on peer-reviewed research.” In addition, Parent asserts the CSE’s failure to consider her suggestion of instructing Student using the research-based methodology of Applied Behavior Analysis (ABA) or 1:1 instructional support is a denial of meaningful parental participation. The CSE’s recommendations were predetermined and based on the Department of Education’s policies rather than Student’s individual special education needs. Parent received a Prior Written Notice, dated June 15, 2022, that provided Student a placement at [REDACTED]. After touring the school location, Parent concluded the placement was not appropriate for Student.

ISSUES

Parent argues the May 11, 2022 IEP is inadequate and not appropriate for Student’s needs. One of the CSE’s recommendations was a 6:1:1 classroom, which Parent asserts would not provide the amount of supervision needed for Student, who demonstrates self-harming behavior which could interfere with her learning and the learning of her peers. Parent had received a Prior Written Notice, dated June 15, 2022, placing Student at [REDACTED], a placement Parent finds unsafe for her child, as she believes it would provide an inadequate level of student supervision. Parent also alleges Student may find the environment overwhelming, which may exacerbate her behavioral struggles.

Parent argues the DOE failed to offer Student a FAPE and contends continuing Student’s placement at [REDACTED] is appropriate. The following is requested as a proposed resolution:

1. Funding/reimbursement for unilateral placement at [REDACTED] in the absence of a timely, procedurally valid, and substantively appropriate IEP and public-school placement for the 2022-2023 school year; and

2. A declaratory finding that the district failed to provide Student with a free and appropriate public education for the 2022-2023 school year. (P-A-3.)

APPLICABLE LEGAL STANDARDS

The Individuals with Disability Education Act (IDEA) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE, or a free appropriate public education. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); accord, Phillips ex rel. T.P. v. District of Columbia, 932 F.Supp.2d 42 (D. D.C. 2013) (“The stated purpose of the IDEA is ‘to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’”)

IDEA also ensures that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(B); Rowley, 458 U.S. at 206-07; accord, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. 20 U.S.C. §§ 1221e-3, 1415(c)-(f); Educ. Law § 4404(1); 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5(h)-(l). If the matter progresses to a due process hearing, the parties appear before an impartial hearing officer, who typically conducts a trial-type hearing regarding the matters in dispute. 20 U.S.C. § 1415(f)(2)(A), (h)(1)-(3); 34 CFR 300.512(a)(1)(4); Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(3)(v), (vii), (xii). An impartial hearing under the IDEA is limited to issues “relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.” 20 U.S.C. § 1415(b)(6); 34 CFR § 300.507(a)(1); 8 NYCRR § 200.5(j). A decision made by an impartial hearing officer shall be made on substantive grounds based on a determination of whether the student received a free appropriate public education. 34 CFR § 300.513(a); 8 NYCRR 200.5(j)(4).

A FAPE is offered to a student when (a) the board of education complies 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. Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “‘[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.’” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 999 (2017).

Educational programs for preschool students with disabilities are provided in accordance with Section 4410 of the Education Law and 8 NYCRR § 200.16 of the Regulations of the Commissioner of Education. See also 20 U.S.C. § 1412(a)(10)(A) and 34 C.F.R. §§ 300.130 through 300.144. In preschool, every child with an IEP is classified as a “Preschool Student with a Disability” on the IEP. 8 NYCRR § 200.1(mm)(1)(i). Procedural due process safeguards and impartial due process hearings for preschool children are to be provided in accordance with 8 NYCRR § 200.5(a) and 200.5(j) respectively. See 8 NYCRR § 200.16(h)(1), (9). By contrast, a school-aged child must meet the criteria for one of 13 disability classifications to be eligible for special education. 8 NYCRR § 200.1(zz).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for their child 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. Burlington/Carter ^[3]. In Burlington, the Supreme 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Cent. Sch. Dist. 427 F.3d at 192 (2d Cir. 2005). “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. Burlington’s three-part test is applicable to requests for prospective relief, retroactive reimbursement, and retroactive direct tuition payment claims. Mr. and Mrs. A. v. N.Y. City Dep’t of Educ., 769 F.Supp.2d 403, 415 (S.D.N.Y. 2011).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014); Gagliardo, 489 F.3d at 114-15.

FINDINGS OF FACT [SEE BELOW]

CONCLUSIONS OF LAW

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a student received a FAPE. 8 NYCRR § 200.5(j)(4)(i). As a result, dismissal of this DPC on summary judgment grounds is not tenable as District requests. (I-1-5.) In addition to seeking direct tuition payment to [REDACTED], Parent is seeking a declaratory finding that the DOE failed to provide Student with a FAPE for the 2022-2023 school year. (See P-A-3.) Accordingly, a determination must be made as to whether the district’s proposed placement was appropriate. If not, was the parent’s unilateral placement appropriate? If parent’s unilateral placement was appropriate, do equitable considerations support the parent’s claim?

Prong 1 – Appropriateness of School District Program The district has the initial burden of demonstrating that the IEP provides the student with a FAPE. R.E., 694 F.3d at 186 (adopting the majority view that an IEP must be judged prospectively from the time of its drafting). Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself. R.E., 694 F.3d at 186-88. The district must establish the following: (a) it “complied with the procedural requirements of the IDEA”; and (b) the IEP was “reasonably calculated to enable the child to receive educational benefits.” Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at 206-07).

Here, the district did not present a Prong 1 case or documentary evidence in support of having procedurally or substantively provided Student a FAPE during the 2022-2023 academic year. Nonetheless, the evidence presented establishes that the CSE convened a Turning 5 IEP meeting for Student on May 11, 2022, and recommended that Student be placed in a special class with a student-to-staff ratio of 6:1:1 for ELA and math. The CSE also recommended related services for Student and training for Parent. On June 15, 2022, the DOE offered Student a placement at a [REDACTED] school, [REDACTED]. Despite the paucity of evidence presented, the IEP “complied with the procedural requirements of the IDEA”; and (b) the IEP was “reasonably calculated to enable the child to receive educational benefits.” Further, Parent availed herself of the opportunity to visit the school and made a determination on its appropriateness for Student. As a result, District minimally met its burden of establishing that it offered Student a FAPE for the 2022-2023 school year.

Prong 2 – Appropriateness of Parent Placement

Ordinarily, it is not necessary to consider whether the program selected by Parent was appropriate or address any of the equitable considerations presented if the district offered Student a FAPE. M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) (“Only if a court determines that a challenged IEP was inadequate should it proceed to the second question.”) However, given the paucity of evidence presented, the undersigned assesses the appropriateness of Student’s placement at [REDACTED]. Educ. Law § 4404(1)(c); accord Gagliardo, 489 F.3d at 112 (holding that, even if the IEP was inappropriate, parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate.”). Although a unilateral parental placement need not satisfy IDEA’s definition of a FAPE or meet state education standards or requirements, “the same considerations and criteria that apply in determining whether the School District’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207). In short, “the issue turns on whether a placement—public or private—is ‘reasonably calculated to enable the child to receive educational benefits.’” Id. (quoting Rowley, 458 U.S. at 207). Frank G. instructs, “[n]o 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.

Frank G., 459 F.3d at 364.

Parent has established Student received educational benefit from the program provided by [REDACTED]. Parent presented evidence that Student was placed in a kindergarten-equivalent special class at [REDACTED]. (RT 06/14/2023 at 152.) [REDACTED] offers both a preschool program and a school-aged program. (Id. at 144.) Both programs use applied behavior analysis or ABA as the basis for teaching students. [REDACTED] placed Student in a 12-month program in the same 6:1:3 class configuration she was placed as a preschooler. (Id. at 147-49.) The program provides for one-on-one or small group instruction. (Id. at 156.) Teachers essentially attempt to teach the children to attend to one leader of the group, whether it’s the classroom teacher or an assistant, and the other staff members sit behind the children and help prompt appropriate behavior and appropriate responses. (Id. at 157.)

The clinical coordinator testified Student required close supervision because, unsupervised, she could engage in self-injury and described the conduct as follows:

[Student] was a student who would need supervision and close supervision, because she could engage in some self-injury. She really had little to no functional communication, so could not spontaneously tell us either verbally or with pictures or with a device that she was tired, that she needed the bathroom, that she wanted a chip, that she didn't feel good. So there was really no spontaneous communication, no real verbal speech. She - she was working on making some sounds and imitations. Little short tolerance for sitting in a group, needed hand-over-hand prompting for a lot of her selfcare programming.

(RT 06/14/2023, at 158.) [REDACTED] developed individualized educational goals for Student, and the clinical coordinator reported Student had progressed during the school year. (Id. at 158-63.) Student’s toileting skills and her transition into the school at the beginning of the school day improved. (Id. at 161-62.)

The clinical coordinator opined a 6:1:1 class would not be appropriate for Student for the 2022-2023 school year:

[Student] needs more supervision, in general, especially in a group setting, as well as when she's learning. You know, she’s – she’s very impaired in certain areas and needs some of these skills broken down in really discrete steps and repeated and reinforced. And I don't believe that two -- one teacher and one para would be able to individualize the academic and -- and other programming that she would need. (RT 07/14/2023, at 191.) The clinical coordinator also opined that the 6:1:3 class at [REDACTED] was appropriate for Student, based on the higher teacher-to-student ratio. (Id. at 191.) Below, she elaborates further: And she -- her -- her lessons, her programming, are individualized. She has her own book with her own steps and her own reinforcement. And all of the staff in the room are -- are shown how to work with her one-on-one, twoto-one, or in the small group, when they do different activities. But she really needs more individualized prompting and attention, to make progress.

(Id. at 192.) Both the 6:1:1 program offered at the [REDACTED] school and the 6:1:3 program offered at [REDACTED] were reasonably calculated to enable Student to receive educational benefits as a kindergartener with an autism diagnosis. Individual or small group instruction for students with autism is specified in the regulations, 8 NYCRR § 200.13(a), and no evidence was presented to establish that the [REDACTED] school would not provide Student the educational program she was mandated to receive. State regulations provide that the 6:1:1 program is appropriate for Students who require a high degree of individualized attention and intervention and have management needs that are determined to be highly intensive. 8 NYCRR § 200.6(h)(4)(ii)(a). The behaviors of concern for Parent were not consistent with behaviors required for the CSE to conduct a functional behavior assessment or develop a behavior intervention plan for Student. See 8 NYCRR §§ 200.4(d)(3)(i), 200.22(a)-(b). Both programs had the capacity to manage Student’s intensive needs—as a kindergartener—which stemmed from her inability to verbally communicate her needs:

She really had little to no functional communication, so could not spontaneously tell us either verbally or with pictures or with a device that she was tired, that she needed the bathroom, that she wanted a chip, that she didn't feel good. So there was really no spontaneous communication, no real verbal speech.

(RT 06/14/2023 at 158.) Student would have received the necessary attention from a paraprofessional who assists students with orientation, mobility, or toileting.

Previously, as a [REDACTED], Student engaged “in verbal and motor stereotypies as well as aggression such as attempts at biting and hitting herself in the head throughout the day.” (P-D-2.) However, in preschool, [REDACTED] had addressed these behaviors with Student by “immediately redirected when these behaviors occur. [Student] is on continuous reinforcement for both correct responses and appropriate behaviors.” A more detailed explanation can be found in the following IEP excerpt:

She continues to receive praise and reinforcement through the day for appropriate behaviors. She works well for verbal praise, adult attention, M&Ms, graham crackers, iPad, bubbles, and various toys. Redirection is contingent upon challenging behaviors in an effort to prompt appropriate behavior that will result in reinforcement. Data on her aggression (biting/hitting herself in the head) is being taking, as well as data for her motor stereotypies such as finger play, and shaking of her hands. [Student] is working on maintaining sitting appropriately for 3-5 seconds without a built-in prompt. She is also working on maintaining eye contact for up to 3-

5 seconds without a prompt. These programs are still run on a consistent basis to strengthen and generalize these skills as well as used during her behaviors. Responding to name is being run on mat in cubby engaged with toy without a prompt. [Student] is working on returning to work while on a rug next to her chair while engaged. [Student] is working on imitating arms up in discrimination. She has mastered clap hands, stomp feet, and slap table. She is also working on putting a block in cup in discrimination. She mastered hit drum, shake maraca, and ring bell in her non-verbal imitations with objects program. [Student] has mastered matching identical objects and colors. Matching non-identical objects was assessed and she mastered this skill. She is currently working on receptive colors id and the current target is red in isolation. She is also working on block imitation. She is currently working on imitating a 4 block structure. [Student] is working on waiting for 10 seconds for a desirable. At this time, she makes gradual progress across these programs. (P-D-2.)

Even if it could be said that the program at [REDACTED] offered Student greater educational benefit, the program is strikingly similar to the program available at the [REDACTED] school, and the District’s failure to affirmatively present a Prong 1 defense does not invalidate the program District would have been mandated to provide for a student with an autism diagnosis. The fact that the district’s program did not incorporate a nap period and juice at Student’s desk does not detract from its mandate. Likewise, the size of the cafeteria and the morning drop-off procedures do not render the district’s program inappropriate for Student. As is often referenced in the special education sphere, a school district is not required to “furnish[ ] . . . every special service necessary to maximize each handicapped child’s potential,” Rowley, 458 U.S. at 199, but rather “fulfill[ ] its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression,’ and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130). Walczak held the education provided must be “sufficient to confer some educational benefit upon the handicapped child,” Rowley, 458 U.S. at 200, but need not “provide[ ] everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quotation omitted).

Prong 3 – Equitable Considerations

Whereas the DOE procedurally and substantially offered Student a FAPE, the undersigned is not required to address whether equitable considerations are relevant to fashioning relief. However, the District asserts that Parent lacks standing to lodge a claim of redressable injury against the DOE, as Parent did not enter into a contractual obligation with [REDACTED]. (IHO-I, District Closing Brief.) Parent counters they are seeking continuation of a prior placement, as the DOE had previously placed Student at [REDACTED] for preschool. (IHO-II, Parent Closing Brief.)

The undersigned concludes issues pertaining to contractual obligation to pay tuition would be considered under the equities prong of the Burlington analysis and not at the outset. While it is possible that Parent would not be required to pay the preschool were she to not succeed in the proceedings initiated against the DOE, the Second Circuit instructs this is not a factor to be held against the Parent at the outset:

[Parent] has standing to bring this claim based on the implied contractual obligation to use her best efforts to pursue her statutory remedies to repay the tuition that the Center has, in effect, “loaned” to her during the 2008– 2009 school year.

E.M. v. N.Y.C. Dept. of Educ., 758 F.3d 442, 457 (2d Cir. 2014). Nonetheless, “that plaintiff has standing to pursue her claim does not mean that she is entitled to the relief she seeks.” E.M., 758 F.3d at 452. As set forth above, Burlington’s three-part test is applicable to requests for prospective relief, retroactive reimbursement, and retroactive direct tuition payment claims. The State Review Officer (SRO) has concluded that the Burlington analysis is to be applied even when requests for equitable services are at issue. See Application of A Student with A Disability, Appeal No. 23-010 *8. The SRO views the analysis as “essentially the same as the federal process under the IDEA,” and holds districts can be made to pay for a privately obtained parental placement. Id. The undersigned adopts the SRO’s summary of the applicable law as set forth in Application of a Student with a Disability, Appeal 23-093, *22:

In a tuition reimbursement case, equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 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"]; L.K. v. New York City Dep’t of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations in the tuition reimbursement context, 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., 758 F.3d at 461 [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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [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"]).

The undersigned finds Parent’s categorization of the case cannot be differentiated from a typical unilateral placement case on the basis that Student was “placed at [REDACTED] by the Department of Education’s CSE for her preschool program during the prior 2021-2022 school year.” (IHO-II-8.)

First, Student’s preschool program consisted of a Special Class 6:1:3, 5x5 hours per week, accompanied by related services consisting of Speech-Language Therapy, 1:1, 4x30 minutes per week, and Parent Counseling and Training, 3x30 minutes per year. (P-D-21.) Student’s education placement did not lie at [REDACTED], as [REDACTED] is a location and not an educational placement.

Second, each school year stands alone, and the fact that Student attended [REDACTED] as a preschooler in 2021-2022 has no bearing on the dispute at issue for the 2022-2023 academic year. Here, the DOE convened a Turning 5 IEP meeting for Student and recommended a Special Class 6:1:1, 5x5 hours per week, accompanied by related services consisting of Speech-Language Therapy, 1:1, 4x30 minutes per week, and Parent Counseling and Training, 3x30 minutes. Parent disagreed with the program and enrolled Student in [REDACTED] kindergarten program. The fact that [REDACTED] is a state-approved non-public school, and Parent and [REDACTED] did not execute a contract for the 2022-2023 school year, does not mean that Parent did not remove Student from the public school system.

Last, E.M. v. N.Y.C. Dept. of Educ. is dispositive on the issue of contract enforceability. Without a contract of sorts, Parent does not have a demonstrable obligation to pay [REDACTED] and has no financial responsibility to pay in the event she does not prevail in a due process complaint proceeding. Compare E.M., 758 F.3d at 456 (“ In our view, plaintiff has adequately demonstrated that, as a result of the Department’s alleged failure to provide a FAPE, she has incurred a financial obligation to RFTS under the terms of the enrollment contract.”) Parent does not have a contractual obligation that is redressable by retrospective direct tuition payment and is not entitled to the relief she seeks on behalf of [REDACTED]. E.M., 758 F.3d at 452.

ORDER

Based upon the above findings of fact and conclusions of law, the DOE offered Student a FAPE for the 2022-2023 school year. Parent’s request for retrospective payment of tuition to [REDACTED] for the 2022-2023 school year is DENIED.

SO ORDERED.

DATED: September 15, 2023 /s/Katia Mehu

KATIA MEHU

Impartial Hearing Officer

Copies:

[REDACTED] – [REDACTED] [REDACTED] – [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 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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. December 8, 2022 Pendency Hearing Impartial Hearing Request 09/06/2022 3 pages

B. Individualized Educational Plan 11/12/2021 25 pages

A. June 14, 2023 Merits Hearing Impartial Hearing Request 09/06/2022 3 pages

B. Ten-Day Notice Letter 08/23/2022 3 pages

C. Pendency Order 02/02/2023 10 pages

D. Individualized Educational Plan 11/12/2021 25 pages

E. Progress Report 2022-2023 4 pages

F. Program Description 09/14/2022 1 page

G. Class Schedule 2022-2023 1 page

H. Affidavit of Parent 06/2023 5 pages

DOE’S EXHIBITS

IHO’S EXHIBITS

PARENT

I. Closing Brief 08/19/2023 13 pages

II. DOE Closing Brief 08/18/2023 14 pages

Footnotes

[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] Sch. Comm. of Burlington v. Dep’t. of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).