New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590328 – NYC: 241259

FINDINGS OF FACT AND DECISION

Student's Name: REDACTED

Date of Birth: REDACTED

District: [REDACTED]

Region: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: January 13, 2023

February 13, 2023

March 20, 2023

March 27, 2023

Actual Record Close Date: May 1, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 13, 2023

REDACTED Parent Attorney

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 13, 2023

REDACTED Parent Attorney

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 20, 2023

REDACTED Parent Attorney

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 27, 2023

REDACTED Parent Attorney

REDACTED DOE Consultant Representative

REDACTED Legal Guardian/Parent

INTRODUCTION

On December 30, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of REDACTED (REDACTED) for the 2022/23 school year. The Parents requested the hearing by filing an impartial hearing request with DOE on or about November 1, 2022. The DPC is carried under New York City (“NYC”) Case No: 241259. The impartial hearing was held over a series of dates to complete the record on March 27, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on May 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

REDACTED has been identified by the Committee on Special Education (CSE) as a student with a disability and classified “Autism” (Exhibit 2). For the 2022/23 school year, REDACTED attended REDACTED (REDACTED) 12-month program. As a first grader for the 2019/20 school year REDACTED was offered placement in an integrated co-taught class. Thereafter, he was offered placement in a 12:1:1 class with related services mandates of counseling ( 1x30, 1:1 and 1x30, group of 2) and occupational therapy (1x30, 1:1 and 1x30, group of 2). In June of 2021, REDACTED was deferred to CBST for placement in an approved non-public school (NPS) but although applications were made to numerous schools serving students with autism, none accepted REDACTED (Exhibits A and 1). The CSE convened on February 2, 2022 to develop an IEP for the student and once again recommended a 12:1:1 special class, with related services mandates of counseling a week ( 1x30, 1:1 and 1x30, group), occupational therapy (1x30, 1:1 and 1x30, group), physical therapy (1x30, 1:1 and 1x30, group) and parent counseling (3 times per year, 30 minute sessions) (Exhibit 2). The Parent alleges the program developed for the 2022/23 school year was procedurally and substantively inappropriate, in that: (1). it failed to meet the child’s unique academic needs and his unique needs with respect to his social emotional functioning at school; (2). it failed to address the child’s unique needs through an appropriate program, including class placement, related service mandates, goals and behavioral programming; (3). it failed to include appropriate behavioral programming during the school day to address the child’s ability to function in a classroom during the school day, to appropriately interact with his peers; (4). it failed to include appropriate extended school day behavioral programming to perform school-related tasks outside of school; and (5). it was not reasonably calculated to allow the student to make meaningful progress. Further, the Parent alleges the District failed to evaluated the child for all suspected disabilities and denied the parent her right to meaningfully participate in the development of her child’s IEP. The Parent gave notice of her concerns to the DOE of its failure to provide REDACTED with an appropriate program and placement and gave notice of her intent to enroll REDACTED at REDACTED and seek funding (Exhibit B) if the DOE failed to respond and address Parent concerns prior to the start of the 12-month 2022/23 school year. Subsequently, as a remedy for the DOE’s failure to provide REDACTED a FAPE for the 2022/23 school year, the Parent filed a Due Process Complaint (DPC) seeking (1). a determination that the district be obligated to pay for a bank of hours that will allow for 14 hours a week of extended school day programming provided by a licensed behavior analyst or a board-certified behavior analyst and an additional 22 hours for development of the extended-school day program by a Board Certified Behavior Analyst (BCBA) and coordination with the child’s school all charged at a market rate; (2). a determination that by reason of the deprivation of FAPE for 2022/23 school year, the District is obligated to pay the fees associated with the REDACTED program; and (3). a determination that the District is obligated to provide specialized transportation for the student on a bus that includes supervision in addition to the driver and that in the event that the District fails to provide such transportation or if there are any gaps in provision of transportation, that the District be required to prospectively pay or satisfy the Parent’s debt by direct payment to the vendor of such services for any transportation expenses that the Parent incurs until such time as the DOE has adequately implements the Student’s transportation (Exhibits A and 1).

In an effort to support her position, the parent submitted a documentary exhibit package consisting of eleven (11) pieces of evidence (Exhibits A-K), and presented two witnesses: REDACTED, Program Director at REDACTED (Exhibit J) and REDACTED, parent/guardian (Exhibit K).

The DOE submitted a documentary package consisting of four (4) pieces of evidence (Exhibits 1-4). At the hearing, the DOE conceded Prong I (T @ 19 and 28), failed to present any witnesses, waived an opening and briefly cross-examined Parent (T @ 37-38). In its closing statement, the DOE representative did not contest relief sought by Parent, with the exception that the DOE presented Parent failed to meet her burden of proof on the requested relief sought for a bank of hours to allow for extended services and thus requested same be denied (T @ 40).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, the DOE conceded Prong I and therefore no further analysis is warranted as the Parent has met the first of the three Burlington/Carter criteria for tuition reimbursement. Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

REDACTED, Program Director at REDACTED represented “REDACTED serves a total of 29 students ranging from age 5 to 13. The school is ungraded and students are functionally grouped with respect to academic, social, and emotional communicative development with no larger than a 3-year gap between ages in a single class. All the children….receive 1:1 ABA instruction and each child is assigned a 1:1 behavior technician for the duration of the day……we….provide students with related services of speech language therapy, occupational therapy, and physical therapy….either push-in or pull-out and are conducted both 1:1 and in a group…..related service providers are all trained in the specific behavioral protocols for each individual child and their therapies are applied concurrently with the students ABA programming” (Exhibit J).

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

In the case at hand, the DOE opted not to cross-examine REDACTED and did not raise any challenge to Parent assertions other than contending that Parent failed to meet her burden as to bank of hours sought for the extended services for REDACTED. REDACTED provided testimony in supplement to her submitted affidavit (Exhibit K) indicating that during the IEP meeting on February 2, 2022 she raised a request “for extended with tutoring, ABA, OT and PT” (T @ 35) as she personally believes that REDACTED needs the continuation at home to ensure additional success to the success he is achieving at REDACTED. She testified that REDACTED cannot independently practice the skills he is working on during the school day (T @ 33-37). During cross-examination REDACTED acknowledged that REDACTED is not currently receiving after-school tutoring (T @ 37).

Upon due consideration, I find the evidence and testimony presented by Parent witnesses to support that REDACTED was an appropriate placement for REDACTED during the 2022/23 school year. I credit the testimony (Exhibits J and K) and documentary evidence (Exhibits E-G) submitted herein and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which he was able to make progress. For the 2022/23 school year REDACTED was placed in a class of 6 students with a licensed special education lead teacher who is a BCBA candidate and receives 1:1 instruction from Registered Behavior Technicians (RBTs). He received related services of Speech Therapy and Occupational Therapy and receives 1:1 and group instruction that facilitate his communication, social development, daily living skills and academics (Exhibit J). I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports geared to the development of academic, emotional, social and behavioral skills required by REDACTED to make progress. Specifically, the record supports that REDACTED created a customized program to address all of REDACTED’s challenges that enabled him to make meaningful academic and functional progress which included a small classroom, a curriculum based on ABA methodology, a behavioral plan developed and supervised by a BCBA, social skills training, opportunities to integrate with typically developing peers, individualized attention and support, related services, and numerous other accommodations and supports.

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 12-month school year and one where he made meaningful progress for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein. However, while Parent opined that REDACTED would benefit from extended services, no documentary evidence was provided to corroborate her personal opinion. Therefore, I find Parent failed to meet her burden with regard to said request and thereby deny same.

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parent was anything other than cooperative. The DOE did not raise equity considerations for the 2022/23 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2022/23 school year. REDACTED’s Parent timely put the DOE on notice of REDACTED’s unilateral placement and her intent to seek reimbursement (Exhibits B).

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

I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 12-month school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2022/23 12-month school year. Upon due consideration, based upon the foregoing,

ORDER

1. The Department of Education shall provide direct funding for the cost of the student's tuition, costs and expenses at REDACTED for the 12-month 2022/23 school year in the amount of $158,250.00; and

2. The DOE is obligated to provide door-to-door specialized transportation to and from the unilateral placement on a bus that includes supervision in addition to the driver. In the event that the District fails to provide transportation to the Student or if there are any gaps in provision of transportation, the District is required to prospectively pay or satisfy the Parent’s debt by direct payment to the vendor of such services for any transportation expenses that the Parent incurs (including but not limited to public transportation, rideshare voucher funding, rideshare/taxi and/or car service or mileage funding for Student and a travel companion and return rides for any travel companion) until such time as the DOE adequately implements the Student’s transportation.

All payments shall be supported by the presentation of appropriate documentation. Any relief sought in the Due Process Complaint and not specifically granted herein is hereby deemed denied.

Dated: May 10, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 27, 2023

1. DOE: Due Process Complaint,11/01/22 -6pp DOE

2. IEP, 02/22/22 -38pp DOE

3. Prior Written Notice, 02/03/22 -6pp DOE

4. Psychological Evaluation, 02/12/20, 08/10/20 and 08/24/20 -11pp Parent: DOE

A. Impartial Hearing Request, 11/01/22, -5pp

B. 10-Day Letter, 06/17/22 -2pp

C. School Contract, 2022/23, -6pp

D. Payment Affidavit, January 6, 2023, -1pp

E. ABA Mid-Year Progress Report, 2022/23, -6pp

F. Occupational Therapy Progress Report 2022 -4pp

G. Speech Language Progress Report, May 2022 -3pp

H. School Schedule, 2022/23-1pp I. Emails between REDACTED at DOE and REDACTED, REDACTED and REDACTED at DOE, Parent cced, June 11, 2021 -2pp

J. Affidavit of REDACTED (Program Director @ REDACTED), March 21, 2023 -4pp

K. Affidavit of REDACTED, March 2023 -3pp