New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589222 - NYC: 240298

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: October 11, 2022

Dates of Hearing: February 21, 2023, May 30, 2023 and May 31, 2023

Actual Record Closed Date: June 3, 2023

Date of Decision: June 15, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 21, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 30, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 31, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Department Chair of Clinical and Support Services

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated October 11, 2022. (Ex. P-A) 2. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on November ^[2], 2022. A pre-hearing conference was held on November 15, 2022. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. At the request of the Parents, a status conference was held on December 14, 2022 to give the Parents an opportunity to pursue settlement with the District (T:4). On December 14, 2022, [REDACTED] appeared on behalf of the Parents, and [REDACTED] appeared on behalf of the District. Both parties requested another status conference while the District completed its investigation, as matters between the parties had settled the five prior years (T:10). A status conferences was held on January 31, 2023 as the parties attempted to resolve the case. [REDACTED] appeared on behalf of the Parents, and [REDACTED] appeared on behalf of the District. As the matter had not yet been resolved, a hearing date was scheduled for February 21, 2023.

The hearing commenced on February 21, 2023 with [REDACTED] and [REDACTED]. [REDACTED] announced that the case was not referred for settlement and that he would be putting on a case in defense of the District’s program. He did not, however, have any documents to enter into evidence at that time (T:34). The Parents entered Exhibits A-J.^[3] into the record without objection, and [REDACTED] delivered an opening statement. The hearing was scheduled to continue on March 15 and March 21, 2023. In the interim, an amended DPC was filed by the Parents on February 27, 2023, and the District, after some technical difficulties, accepted the amendment, effective March 20, 2023.

A prehearing conference on the amended DPC took place with counsel on April 26, 2023 and hearing dates were set for May 30, 2023 for the District’s case, and May 31, 2023 for the Parents’ case. On May 30, 2023, [REDACTED] advised on the record that he would not be putting on a case (T:73). On May 31, 2023, [REDACTED] presented two witnesses, the Student’s mother and an administrator from the private school. Parent Exhibit K was entered into the record without objection.

Five extensions of the compliance date were granted at the request of the parties. Counsel for both parties made closing statements on the record. The District argued that although it did not present a case, the Parents did not meet their burden to demonstrate that the private school was appropriate (T:147-48). The Parents argued that sufficient evidence was entered into the record to support the Parents’ claim for District funding of their unilateral placement. The record was closed on June 3, 2023.

JURISDICTION

The due process hearing was held, and a decision in 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.

BACKGROUND

The Student was REDACTED years old at the time of the filing of the DPC and had aged out of the public school system. He was classified by the District’s Committee on Special Education (“CSE”) as a student with autism (T:101). A CSE meeting was held on April 29, 2021 to develop an Individualized Education Program(“IEP”) for the 2021-22 school year. The IEP is not in evidence, but according to the amended DPC recommended a 12:1:1 class in a District 75 school. The Parents advised the District, by letter, dated August 25, 2021 that they were unilaterally placing the Student at the [REDACTED] (hereinafter referred to as “the private school”) for the 2021-22 school year (Ex. P-B).

ISSUES

The Parents raise in the amended DPC numerous procedural and substantive challenges to the appropriateness of the District’s recommendations including:

• The CSE was not duly constituted. • The CSE failed to conduct all required evaluations. • The CSE had insufficient information to evaluate the Student’s present levels of performance. • The IEP’s goals are not individualized, vague and fail to address all areas of need. • The IEP does not contain any short-term objectives. • The IEP does not contain any transition goals. • The recommended program was not appropriate to meet his needs. • The Parents did not receive a copy of the IEP prior to the start of the 2021-22 school year. • The District’s recommended program is inappropriate. • The proposed class and school were too large, and the class grouping did not contain students with similar needs. • The recommended placement could not have implemented the IEP.

The amended DPC seeks funding for the Parents’ unilateral placement at the private school for the 2021-22 school year. The amended DPC also referenced transportation to the private school, but no issues regarding transportation were raised in the hearing. As stated above, the District did not provide a written response to the claims raised in the DPC or the amended DPC, and failed to defend the IEP at the hearing. The Parents reference Section 504 of the Rehabilitation Act of 1973 in the amended DPC but have raised no distinct claims for adjudication under that statute.

FINDINGS OF FACT

The Student’s mother testified that as a toddler the Student had an extraordinary memory and was intensely interested in certain topics. She stated that the Student first exhibited difficulty functioning in nursery school. At the request of the nursery school staff, the Parents had the Student evaluated around age 4, and he was diagnosed with autism spectrum disorder (T:124). Due to behavioral problems, he entered a new preschool and was referred to the Committee on Preschool Education (CPSE) for services. He received full time SEIT, speech therapy, OT, counseling and play therapy (T:125).

He began kindergarten in a District program for students with autism but remained in the program for only a few months before he began to regress behaviorally (T:126). In the middle of the year, he began at the[REDACTED] and stayed there for a few years (T:128). At age 9 he began attending a home program for 2 years (T:129). For middle school, the Student attended [REDACTED], a District funded and approved private school (T:130). He began at the private school for high school and remained there for 5 years. He attended an extra year as a result of a serious medical issue (T:131-33). The Student began at the private school’s Transition program during the 2019-20 school year and remained there through 2021-22(T:134). A psychologist conducted cognitive testing in February of 2021. His full scale IQ is 86 placing him in the low average range of intellectual functioning. He exhibited a relative weakness in processing speed with a score of 74, placing him in the borderline range. However, his shortterm memory skills were found to be exceptional (Ex. P-C-2).

The Parent consulted with staff at the private school and felt that the Student’s internship during 2021-22 was very appropriate and successful. With regard to his travel training, although he is not yet navigating the subway independently, he is very aware of the routes and stops and is able to confirm where he is to get off (T:137). The private school has helped him with functional skills, such as banking and money management (T:137-38). He is more socially connected and has improved his functional social skills (T:139). His technical computer skills and use of Google classroom improved (T:140-41). The transition coordinator at the private school was instrumental in helping the Student make his transition to [REDACTED] (T:142).

[REDACTED], the Department Chair of Clinical and Support Services (hereinafter referred to as “the Department Chair”) at the private school testified that he was a New York State licensed occupational therapist and has been employed by the private school since 2012 (T:85-86). As the Department Chair, he supervises related service providers and paraprofessionals, reviews their curriculum development, conducts observations and completes their performance evaluations (T:86-87). He described the private school’s Transitions program as a post-high school program for students ages 17 through 21. It is an educational program that focuses on the functional skills students will need after leaving school whether their next steps are a college-like program or vocational training (T:87-88). The program consists of approximately 80 young adults with diagnoses of learning disabilities, autism or Down syndrome (T:89). A more detailed description of the program is in evidence as Parent Exhibit G.

The Department Chair testified that he first became familiar with the Student when he entered the program. He worked directly with the Student as his occupational therapist for the first two years he was in the program and then later supervised the occupational therapist who worked directly with the Student (T:92-93). During the 2021-22 school year, he observed the Student’s classes at least one time per week and interacted with him informally at school events and in lunch (T:94, 117). He reviewed the Student’s 2021 evaluation (T:118). He described the Student as needing assistance with communication, social skills and initiating activities. His processing speed is slow, and he benefits from a prompt to begin and additional time to process (T:94-95).

His school day was Monday through Friday from 9:00 am to 3:00 pm. The Student’s schedule indicates that he spend every Monday at a collaborative program with [REDACTED]. The remainder of his classes include real world math, digital arts and design, drama therapy, humanities, transition, digital literacy, art connection, vocational forum, let’s make moves, forum and practical living (Ex. P-F). Counseling services were incorporated into forum and practical living classes (Ex. P-I-10). Speech therapy services were incorporated into a block (Ex. P-I-12). Occupational therapy services were incorporated into practical living and out to lunch (Ex. P-I14).

The program was community-based so the Student would be out in the community about every day to some community partnership. This included travel training to enable the Student to navigate the city safely (T:95). In the out to lunch program, students would learn the skills needed to eat independently in a restaurant. The group of 10 to 13 students also participated in a weekly day-long program at [REDACTED] where the students with the assistance of their related service providers engaged in a modified college experience, attending classes tailored for them and spending the day on campus (T:96-97). It was a great opportunity for him to practice his social skills, particularly with novel people (T:100-101).

The Department Chair testified that the Student was classified with autism spectrum disorder (T:101). He described the Student’s strengths in terms of adaptive skills as basic hygiene and getting dressed and ready for the day. His goals included preparing simple meals and self-advocacy skills (T:98). As a result of his slow processing, he needs extra time to understand what is expected. He requires support with social communication and initiation of social interactions (T:99). He estimated his reading and math levels at the fifth grade (T:100).

In the area of travel training, the Student made some progress. He made gains in following a route, identifying the subway stops and using a map (T:102). He attended recreational therapy one time per week during “let’s make moves”. This included a variety of physical activities both on site or in a neighborhood park that not only taught the benefits of physical activity but increased his social interactions and initiation of activities (T:103-04).

He attended a collaborative class, practical living, taught by the OT, speech therapist and counselor that focused on functional living skills, such as food preparation and homemaking skills in addition to communication skills (T:105-06). The Department Chair testified that he absolutely made progress in these skills (T:106-07).

The Student also had an internship for at least four hours a week that was supported by a community inclusion assistant/job coach. Since he has a strong interest in music, the Student worked in the grammar school supporting the music therapist (T:107). The class, vocational forum, supports the students’ internships, helping the students to assess their own strengths and needs (T:108-109). Real world math teaches math skills out in the community to develop real world skills, such as utilizing a bank account and debit card (T:109-10). He made progress in demonstrating his math skills in activities such as using the ATM and interacting with a bank teller (T:111).

The transition class is taught by licensed social workers specializing in understanding all of the options available for the students and their families after they age out of the program. The Student and his family identified a college-like experience which would embrace his interest in music (T:112). The transition program helped him apply to the [REDACTED] and prepare him for the program (T:113-14). The Department Chair testified that he felt the Student made a lot of progress in those areas (T:114-15).

The private school utilizes long term goals for the school year, along with more specific content goals related to the semester curriculum. Each teacher or therapist develops their goals based upon the assessment and observation of the students’ needs (T:111-12). The Student’s goals, a description of activities and materials used and the Student’s progress on his goals are documented in the first and second semester progress reports (Exs. P-H and P-I).

According to the amended DPC, the CSE meeting to develop an IEP for the 2021-22 school year was held on April 29, 2021 (Ex. P-K-2). As stated above, the IEP is not in evidence. The Parent signed a contract for the 2021-22 school year on May 5, 2021 (Ex. P-D-2). The Parents provided the District with notice of their unilateral placement on August 25, 2021 (Ex. PB). The Parents did not receive a copy of the District’s 2021-22 IEP until February 21, 2023, as part of the hearing disclosure (Ex. P-K-3).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 or payment for services 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)). It is well settled that 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]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the parent in order to meet his or her burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

“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).

Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

ANALYSIS

The District admittedly did not present a case to prove that it met its obligation to provide the Student with a FAPE (T:147-48). I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s recognized failure to meet its burden, I do not find it necessary to consider all of the specific challenges to the IEP raised in the amended DPC.

Turning to the private school program selected by the Parents, the Parents argue that the selected program appropriately addressed the Student’s needs and that they have met their burden under Prong II of the Burlington/Carter test (T:148-50). The District states in its closing statement that “the District would simply submit that the evidence that’s been submitted is insufficient to meet the Prong II burden.” (T:148). The District failed to raise any specific challenges to the private school program.

Based upon a thorough review of the testimony and evidence, I find the Parents met their burden that the private school provided the Student with specific individualized instruction and services to meet his unique special education needs during the 2021-22 school year. The uncontroverted testimony and evidence as set forth above reflects that the private school provided him with specific strategies to address his difficulties with the functional skills required to transition to an adult program. The private school addressed his needs in areas such as social skills, communication skills, functional math, travel training, basic tech skills, daily living skills and self-advocacy. He made progress commensurate with his disability. He gained vocational skills from an internship geared toward his interests, and a modified post-secondary experience gave him the real-world experience of being on a college campus. The program culminated in transitioning him into a college-like program focused on his interest in music.

With regard to the equities, there is no evidence in the record that the Parents thwarted the process in any meaningful way that would have otherwise prevented the CSE from making a defensible recommendation for the 2021-22 school year. The Parents gave the District timely notice of their dissatisfaction with the District’s actions and their intention to unilaterally place the Student at the private school and seek reimbursement (Ex. P-B). As such, the equitable considerations weigh in favor of the Parents, and the Parents are entitled to an award of tuition reimbursement.

ORDER

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

1. ORDERED that the District shall within thirty (30) days of the date of this decision reimburse the Parents for tuition paid to the private school for the 2021-22 school year and pay directly to the private school any balance of the tuition due.

SO ORDERED.

DATED: June 15, 2023

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exh. # Description Date Pages Request for Impartial Hearing 10/11/2022 7 pages

B. Ten Day Notice 8/25/2021 3 pages

C. Neuropsychological Evaluation 2/28/2021 3 pages

D. Enrollment Contract 5/5/2021 2 pages

E. Payment Affidavit 2/9/2023 2 pages

F. Classroom Schedule 2021-2022 1 page

G. Program Description 2021-2022 6 pages

H. S1 Progress Report 2/4/2022 22 pages

I. S2 Progress Report 6/17/2022 24 pages

J. Attendance Record 2021-2022 1 page

K. Request for Impartial Hearing - Amended 2/27/2023 6 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, “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] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.