New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Lorianne M. Wolseley

Date of Filing: 09/09/2022

Hearing Requested by: REDACTED

Date of Hearing: 02/09/2023

Record Close Date: 03/23/2023

Date of Decision: 03/23/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 9, 2023

For the Student:

REDACTED

For the New York City Department of Education:

REDACTED

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about September 9, 2022. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer the student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (P- A).

Parent alleges, among other things, that the IEP was substantively and procedurally deficient under federal and state law based on multiple procedural and substantive violations described with more particularity in the DPC, and that the DOE failed to properly develop an IEP that was appropriate for Student. Parent also allege that the recommendations in the IEP were not appropriate. Furthermore, Parent alleges that the equities support their claim for tuition reimbursement for the school year at issue. Id. In light of the foregoing and as more fully discussed below, I find that: a) the DOE failed to meet its burden that it offered Student a FAPE for the 2022-2023 school year; b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs; and c) the equities support Parent’s requested relief.

PROCEDURAL HISTORY

I was appointed impartial hearing officer (“IHO”) for this case on November 17, 2022. An initial prehearing conference was held on December 21, 2022. An Impartial Hearing was held on February 9, 2023. Parties were instructed to submit closing briefs. Parent’s attorney submitted a closing brief and the DOE waived submitting a closing brief. (IHO I, II) The compliance date for issuing a decision in this matter is on February 23, 2023. A list of exhibits admitted into evidence is attached hereto. Although only portions of the evidence are referenced herein, all of the testimony and documents were reviewed in full.

BACKGROUND

Student is a [REDACTED]-year-old student classified with Autism and his classification is not in dispute. In addition, the student has been diagnosed with Prader Willi Syndrome. The student presents with significant developmental delays and social deficits. These deficits are pervasive and global as they involve behavioral communication and generalization skills. The student requires a small, structured, specialized education program that will address his learning, communication, developmental, behavioral, and independent living skills needs. Such program must have a small classroom size that can provide the student with the individualized 1:1 instruction using the methodology of Applied Behavioral Analysis (“ABA”) that he requires to make reasonable progress in his academic and social/emotional development.

On April 1, 2022, CSE 7 convened a Turning-5 IEP review meeting to determine the student’s eligibility for special education services and provide him with an appropriate educational program and placement for the 2022-2023 school year. The resultant IEP classified the student with Autism and recommended a special education class with 6:1+1 student to teacher ratio and related services of Speech and Language Therapy (“SLT”), Occupational Therapy (“OT”), Physical Therapy (“PT”), Parent Counseling and Training (“PCAT”), and Health Paraprofessional (Group) in a NYC DOE Specialized (District 75) School.

LEGAL STANDARD AND FRAMEWORK

"The mechanism established by the IDEA to guarantee a FAPE to disabled children is the IEP" or "individualized education program." Thomason v. Porter, 2023 U.S. Dist. LEXIS 24238, 2023 WL 1966207, at *5 (S.D.N.Y. Feb. 13, 2023). The provision of a FAPE to a student with a disability requires the school district to develop an IEP "reasonably calculated to enable the child to receive educational benefits." T.M.ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley,458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). In New York, local Committees on Special Education ("CSE"), the members of which are appointed by school boards or the trustees of school districts, are assigned the responsibility for developing appropriate IEPs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007). "The IEP, the result of collaborations between parents, educators, and representatives of the school district, 'sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.'" Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)).

"Concerned that parental input into the creation of the IEP would not be sufficient to safeguard a child's right to a free and appropriate education, Congress also included within the IDEA procedural safeguards that enable parents and students to challenge the local educational agency's decisions." Id. New York has instituted a two-tier administrative review procedure. Id. (citing N.Y. Educ. Law § 4404). First, parents may obtain review of the IEP by filing a due process complaint which is heard by an impartial hearing officer ("IHO"). N.Y. Educ. Law § 4404(1). Second, parties aggrieved by the decision of the IHO may appeal to the state review officer ("SRO"). Id. § 4404(2). "The SRO's decision is final[] and concludes the state administrative review." Melendez v. New York City Dep't of Educ., 420 F. Supp. 3d 107, 113 (S.D.N.Y. 2019) (quoting Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d476, 481 (2d Cir. 2002)). "Upon issuance of a final administrative decision, however, a dissatisfied party has the right to bring a civil action in either federal or state court pursuant to the IDEA." Schutz, 290 F.3d at 481.

A parent aggrieved by the choice of school reflected in the IEP may unilaterally change their child's placement, without the consent of state or local school officials and "if ultimately successful in the review proceedings, they are permitted to seek retroactive recovery of past tuition expenses." Id. But a parent does so at his or her own risk. Id. If the SRO, and court upon review, conclude that the IEP has provided the student a FAPE, the parent will bear the cost of the unilateral placement.

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 v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not 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). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; 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 v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.

BURDEN

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

FAPE

A. THE DOE FAILED TO MEET ITS BURDEN THAT IT PROVIDED A FAPE TO STUDENT FOR THE 2022-2023 SCHOOL YEAR.

1. The DOE Denied the Student a FAPE by its Failure to Consider 1:1 ABA Therapy for Student

Although an IEP must provide for specialized instruction in a student’s area of need, generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. Rowley, 458 U.S. at 204; H.C. v. Katonah- Lewisboro Union Free Sch. Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012]; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011] [noting the "broad methodological latitude" conferred by the IDEA]; Application of a Student with a Disability, Appeal No. 12-017.

However, if the evaluative materials before the CSE recommend a particular methodology, and there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).

For the 2022-2023 school year, the DOE offered one witness, School Psychologist, and submitted Student’s April 2022 IEP, Prior Written Notice and School Location Letter, a 2022 psychoeducational evaluation, progress reports, and Student’s preschool evaluations package in an attempt to demonstrate that the IEP was reasonably calculated to enable the Student to receive educational benefit. The Supreme Court has stated that “[a] reviewing court may fairly expect those authorities [school district staff] to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances” (Endrew F., 137 S. Ct. at 1002). I find that the DOE has failed to meet their burden.

School Psychologist testified by affidavit and in person to clarify the record. She stated that she conducted Student’s psychoeducational evaluation on or about March 16, 2022, and she also participated in the student’s April 1, 2022 IEP (“April 2022 IEP”) meeting for this student for the 2022-2023 school year. [D-8 2] She further explained that in preparation for the April 2022 IEP meeting, the DOE conducted a psychoeducational evaluation^[1] (which included a classroom observation). The IEP team also utilized progress reports for academics and related services from the preschool, and parental input at the meeting. The IEP team utilized these documents and information at the IEP meeting and in preparation of the IEP. According to School Psychologist, Student was not in need of additional evaluations at that time, and the IEP team had sufficient information about the student to make an appropriate IEP recommendation. However, when asked why Student was not evaluated cognitively, she stated because Student was “quite impulsive,” and he was not testable at the time.

Furthermore, when asked whether the CSE considered a program which included ABA therapy. Witness stated that the DOE does not include specific methodologies on an IEP. (Tr. 29). No matter how many recommendations there may be for ABA at the time of a meeting for a student, the team would not recommend ABA. (Tr. 30). Even if there was a report that indicated ABA was the only methodology that could be used to teach Student, the team would not have recommended ABA because “[i]t’s just the way it is.” (Tr. 31). The fact that the parent attended and spoke at the CSE meeting does not mean she was afforded an adequate opportunity to participate. Participation must be more than a mere form; it must be meaningful. See W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1485 (9th Cir. 1992). DOE’s own reports and observations show that Student struggled throughout the year with self-regulation, transitions, following directions and desperately needed 1:1 instruction/ assistance.

Here, I find that the DOE ignored the extensive reports and evaluations (mainly, Student’s Psychological Evaluation and input from Parent) provided to the IEP team at the 2022 IEP meeting. Parent credibly established that she advised the CSE team that Student needed a program that can provide him with 1:1 ABA instruction and PROMPT speech therapy and asked for these services to be included and recommended in his IEP. School Psychologist who was present at the meeting stated that they did not incorporate the ABA recommendations into Student’s IEP because it is the DOE’s policy not to include a program that includes ABA therapy. She did not rely on other evaluative materials to call into question the opinions and recommendations of the information provided to the team. By rejecting the consensus recommendations of the evaluations before it, the CSE acted in precisely the same manner that the Second Circuit held to constitute a deprivation of FAPE in its 2017 ruling in A.M. v. N.Y.C. Dep't of Educ. The hearing record establishes that Student benefits from Applied Behavior Analysis (ABA). ABA should be part of Student’s recommended program for the program to be an appropriate one. Therefore, the Student has been denied a FAPE.

B. UNILATERAL PLACEMENT

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. 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).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their 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).

Parent testified by affidavit and in person to clarify the record, as did Executive Director/ Principal of Private School. Student has attended Private School since September 7, 2022. Executive Director testified about Private School’s program as well as about Student’s individual program and progress for the 2022-2023 school year. I find that the evidence and testimony at the hearing established that Private School provided Student with educational instruction specially designed to meet Student’s unique needs during the 2022-2023 school year.

Private School is an independent private special education school primarily designed for children with ASD from ages 4-21 years old. Private School was founded seventeen years ago by parents of children diagnosed with ASD who wanted a school that could meet their children’s academic, social/emotional, behavioral, and independent daily living skills - all in one place. Private School is chartered by the University of the State of New York and accredited by the Board of Regents. It is also a member of the Middle States Association of Colleges and Secondary Schools.

The school’s distinguishing features include small highly structured special education classrooms with low student to teacher ratio; modified multisensory teaching instructions; integrated related services of speech and language therapy (SLT), occupational therapy (OT), physical therapy (PT), counseling; music and art therapy; adaptive life skills classes and vocational training; job internships; after-school programs; and recreational activities. Private School’s mission is to help children with ASD reach their fullest social, emotional, physical and academic potential.

Specifically, the Private School offers a small, calm, highly structured, highly predictable self-contained program for children with Autism Spectrum Disorder, global delays and significant regulatory challenges. Most important, this school provides 1:1 ABA instruction and PROMPT speech therapy that have been instrumental to increase and improve Student’s academic, communication, behavioral and adaptive living skills for the past few months since his enrollment in the program.

Since Student’s initial admission to the program for the current 2022-2023 school year, Private School has been providing him with a small and highly structured educational setting with individual or small group multisensory teaching instructions and related services necessary to promote and increase his academic, social/emotional, and independent daily living skills.

For the 2022-2023 school year, Student was placed in a small and highly structured class of six students, one special education teacher, several classroom instructors, and related service providers (therapists) who frequently pushed in Student’s classroom to facilitate individual academic instruction and social/adaptive skills training. Student’s classmates shared similar intellectual, academic, and social/emotional functioning. Student’s classroom teacher is an experienced special education teacher. Student was taught positive replacement behavioral skills to help him express his wants and needs by using visual supports. In addition to the 1:1 instructional and behavioral support, Private School provided Student with related services of occupational therapy, speech and language therapy, counseling, music and art therapy specifically designed to meet his unique special educational needs.

The classroom teacher, 1:1 instructors, and all of the related service providers addressed Student’s learning and behavioral needs by providing him with consistent routine, visual schedules, clear concise instructions, frequent breaks and positive behavioral supports to engage him in the learning process and lessen his non-compliance. They supported Student academically by breaking large tasks into smaller segments so he would be able to manage them without becoming overwhelmed.

The instructional and behavioral supports Private provided to Student during the 2022-2023 school year were effective and allowed him to make significant progress in all areas of his academic and social/emotional development. He increased his interest and ability to interact with his peers by engaging in parallel play. He was able to engage in the routines of unpacking and transitioning to groups. He sought out the attention of staff by taking their hand and maintaining eye contact. He was able to remain engaged and on task and was able to take part in making his own lunch.

I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. The weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. Student has made steady progress in academics, socially, and emotionally.

C. EQUITIES

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns. (P- B). Parent, furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. (Id.) No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks direct funding of their private school tuition costs to be provided directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)(parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”) Having reviewed the testimony and evidence presented before me, I find that the unilateral tuition costs far exceed the Parents’ income. (P- L, M, N) Parent requested reimbursement/direct funding in the amount of $123,000. Equity demands that the DOE fund Student’s Private School tuition in this instance.

Other Requested Relief

I find that the Parent’s 504 claims are subsumed within the framework of the IDEA. Parent’s attorney did not identify any specific regulatory requirement under 504 that is not subsumed under IDEA and that would merit separate analysis and discussion. Therefore, I will not separately analyze the 504 claims raised in the complaint.

I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year, ORDERED, the DOE shall directly fund the balance of Student’s tuition at the Private School, less any amount already paid pursuant to a pendency agreement, in an amount not to exceed $123,000.00 for the 2022-2023 school year.

ORDERED, the DOE shall reimburse the Parent for the cost of tuition at the Private School as described above within 45 days of submission of proof of payment.

So Ordered.

Dated: March 23, 2023

Lorianne M. Wolseley

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.

DISTRICT EVIDENCE

ID # DESCRIPTION DATE # OF PAGES

1 DPC 09/08/22 5 2 IEP 04/01/22 28 3 Prior Written Notice 04/08/22 4 4 Prior Written Notice and School Location Letter 05/20/22 6 5 Psychoeducational Evaluation Undated / 4 (03/16/22) 6 Progress Reports 01/31/22 11

• Educational, 1-3

• Speech-Language, 4-5

• Occupational Therapy, 6-9

• Physical Therapy, 10-11 7 Preschool Evaluations Package 02/24/20 47 8 Affidavit of REDACTED 02/03/23 4

PARENT EVIDENCE

NO. DATE NAME OF DOCUMENT # pp.

A. Impartial Hearing Request 09/08/22 5 pages

B. Ten Day Notice 08/23/22 2 pages

C. Psychological Evaluation by REDACTED 08/17/20 5 pages

D. REDACTED Program Description UNDATED 6 pages

E. Enrollment Contract 07/01/22 2 pages

F. REDACTED Class Schedule 2022-2023 1 page

G. REDACTED Attendance Report 01/31/23 1 page

H. REDACTED Tuition Affidavit 01/30/23 1 page

I. REDACTED Progress Report 2022-2023 11/11/22 11 pages

J. Positive Behavior Support Plan 01/11/23 2 pages

K. Affidavit of REDACTED, M.S., CCC-SLP, M.A. Ed (Curriculum Vitae Attached) 02/02/23 19 pages

L. Affidavit of REDACTED 02/02/23 4 pages

M. 1040 Parent’s Income Tax 2021 2022 2 pages

N. 1040 Parent’s Income Tax 2021 2022 2 pages

Footnotes

[1] I note that the psychoeducational evaluation report contains a number of typographical errors.