New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY DEPARTMENT OF EDUCATION

STUDENT, a minor, by and through his Parent(s), ^[1]

Petitioners,

-against-

NEW YORK CITY DOE, CSE REGION Redacted

Respondent.

FINDINGS OF FACT AND DECISION

Case No: 242055

Jennifer Mazzei, Esq.

Hearing Officer

INTRODUCTION

This matter comes to your undersigned Impartial Hearing Officer on Parent’s Due Process Complaint (hereinafter, “DPC”), filed on or about November 14, 2022 (P-Ex. A. 2). Your undersigned Impartial Hearing Officer (hereinafter IHO) was appointed on November 14, 2022.

A Prehearing Conference in this matter was scheduled for, and held on, December 7, 2022. Several status conferences were held thereafter. Additionally, numerous applications for an extension of the compliance date were Granted during the pendency of this matter.

An impartial hearing commenced on August 16, 2023, and continued on September 18, 2023, and concluded on October 17, 2023. Due to the COVID-19 pandemic, the hearing was held

2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. Reference to the Transcript shall be referred to as “T”.

via the Escribers Conferencing Platform, without objection from either party. Exhibits were premarked, and Parent offered into the record as evidence, Exhibits A-R, which were entered into the record without objection. Respondent (hereinafter DOE or District) did appear at the Impartial Hearing but did not submit any evidence and did not defend an offer of FAPE. Your undersigned IHO did not enter any exhibits into the record as IHO Exhibits. Parent called two (2) witnesses; Student’s Parent (hereinafter “Parent”), and the Program Director at Student’s Private School (hereinafter “Director”) The DOE did not call any witnesses.

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”), 3 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 Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

BACKGROUND

Student is a REDACTED year old that attended the Private School for the 2022-2023 extended school year, which is the school year at issue in the instant matter. Student is classified as having Autism by the DOE (P-Ex:D). In addition to the classification by the DOE, Student has also received various diagnoses, which include epilepsy, attention deficit hyperactivity disorder, intellectual disability, mixed receptive-expressive language disorder, developmental coordination disorder and global delays. (Ex. F; Tr. 78-79).

3 In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”).

For the school year at issue, Parent informed the DOE of her concerns with their recommended placement and ultimately unilaterally placed Student at the Private School upon ten-day notice to the DOE (P-Ex. B).

ISSUE

The DPC alleges that the DOE denied Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2022-2023 extended school year (P-Ex. A). Parent has requested a finding that the DOE’s program denied Student of a free appropriate public education (FAPE), that the Private School is an appropriate placement for Student, that equitable considerations support the Parent’s claim, and award direct payment to the Private School in the amount of $155,900.00, which represents the remaining tuition balance due and owing to the Private School, as well as reimbursement to Parent in the amount of $100.00, which represents the deposit paid by Parent to the Private School for the 2022-2023 extended school year tuition, less any amounts already paid by the Department to the Private School for the 2022-2023 extended school year tuition and related costs, as well as any other further and additional relief that is appropriate and necessary.

FINDINGS OF FACT

After considering all the evidence and arguments of counsel, and after reviewing and adopting the proposed Findings of Fact from Parent’s counsel, the Findings of Fact are as Follows:

Student began attending the Private School in December 2019 (Tr. 80). Before attending the Private School, Student had been enrolled in another school, which is also a private school (Tr. 81).

Student stopped attending that school in 2019 because said school was unable to manage Student’s negative behaviors (Tr. 81-82).

Student’s autism spectrum diagnosis falls in the mild-to-moderate range according to the CARS-S (P-Ex. D-2). Due to Student’s needs, she requires services and support to help remediate and accommodate her symptoms of autism spectrum disorder (P-Ex D-2).

The Private School is located in New York City and is dedicated to educating children with neurodevelopmental delays (Tr. 97). A total of 155 students attended the Private School, many of whom have a diagnosis of autism spectrum disorder (Tr. 97). The Private School employs a total of 183 staff members, 18 of whom are teachers, and approximately 40 of whom are related service providers (Tr. 98-99). The Private School also employs about 53 teacher’s assistants, who at a minimum, possess bachelor’s degrees (Tr. 99). Students attending the Private School receive 30 instructional hours per week (Tr. 100). To address the neurodevelopmental needs of its student body, the Private School provides a methodology referred to as Developmental, Individual Difference, Relationship-Based model (“DIR”) (Tr. 100-102). All the teachers and staff members at the Private School are trained in DIR methodology (Tr. 103). The Private School also employs

24 staff members who are expert training leaders in the DIR methodology in the certification process, and those individuals provide training to the Private School staff (Tr. 103).

Student began her 2022-2023 school year at the Private School in July 2022, the terms of which are memorialized in a contract between Parent and the Private School dated June 17, 2022 (P-Ex. H; Tr. 104). Student was enrolled at the Private School as a 12-month student (Tr. 104). One of Student’s greatest areas of need is her ability to remain regulated (Tr. 105). Student also exhibits difficulties with language and academic abilities, as well as with sensory processing (Tr. 105-106).

To address Student’s needs and deficits, the Private School provided her with a program consisting of DIR methodology in a classroom setting with 8 other peers (P-Ex. G-1; Tr. 107-108). Student’s classroom teacher held a master’s degree in special education and is a licensed special education teacher (Tr. 108). Student’s individualized weekly program consisted of DIR Floor time sessions, reading, math, social studies, health, language affinity group, visual-spatial activities, and regulating sensorimotor play (P-Ex. G-1). For curriculum for reading, the Private School used Lindamood-Bell, Seeing Stars, and Visualizing and Verbalizing (Tr. 109). The curriculum in math consisted of AbleNet, specifically, the Equals Program (Tr. 109).

To address Student’s sensory needs and dysregulation, the Private School provided her with a sensory diet, consisting of sensory activities that are set up and designed by her occupational therapist (Tr. 109). More particularly, the Private School provided Student with up to four times a day at regular intervals of sensory input to regulate her sensory system (Tr. 109-110).

Student’s counseling services were provided by a licensed social worker, speech-language therapy by a licensed speech pathologist, occupational therapy by a licensed occupational therapist, and physical therapy by a licensed physical therapist (Tr. 113-114). As part of her program at the Private School, Student received speech-language therapy three times per week, occupational therapy three times per week, and physical therapy two times per week (Tr. 113-114; P-Ex. P). The Private School also provided additional support such as an art group, a music group, and adaptive physical education (Ex. G-1; Ex. P).

The Private School also identified deficits with respect to Student’s daily living skills. To address those deficits, instruction was provided to teach Student activities such as taking care of her belongings, understanding expectations when out in the community, independently traveling throughout the building, understanding the process of toileting, and buying food at a grocery store (Tr. 115-116).

The Private School also provided counseling and training to Parent, through which, Parent was provided a social worker who worked with Student in the classroom setting (Tr. 114-115).

During the school year, Student made steady progress in all areas of need as evidenced by her progress report (P-Ex. G; Tr. 108, 115).

The evidence presented showed that Parent fully cooperated with the DOE and has attended all CSE meetings for Student (Tr. 83, 89). On June 22, 2022, the DOE acknowledged receipt of a 10-day notice of placement letter that it had received from the Parent (P-Ex. B, C; Tr. 86-87). At no point during the process of developing Student’s program for the 2022-2023 year did the Parent fail or refuse to consent to any evaluations proposed by the DOE for Student (Tr. 90). In fact, the Department did not conduct any new evaluations of Student in preparing her program of special education for the 2022-2023 extended school year (Tr. 83). The DOE failed to present any evidence to demonstrate that it responded to the Parent’s 10-day notice letter. Lastly, the Parent provided in-depth testimony to explain why she is not in a financial position to afford the tuition for the student’s enrollment at the Private School (Tr. 91).

The tuition cost for Student’s 2022-2023 extended school year at the Private School including her 2022 summer session, was $156,000.00 (P-Ex. H; K). Parent paid a deposit to the Private School in the amount of $100.00, resulting in an outstanding balance of $155,900.00 due and owing to the Private School (Tr. 91; Ex. K).

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows:

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. See: 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). To demonstrate that FAPE is being provided, the school DOE must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See: Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See: Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See: Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful, i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN

The DOE did not offer any evidence into the record either testimonial or documentary and in its opening argument the DOE stated that they would not be presenting any evidence or witnesses in support of proving that the DOE offered Student a FAPE (Tr. 59-60).

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities to be able 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. v. Douglas County School District, 137 S.Ct. at 1002 (2017). Here, the DOE provided no defense of FAPE at all.

Based upon the lack of evidence above, I find that the DOE failed to meet their burden and thus I must find the DOE did not provide the Student with a FAPE for the 2022-2023 extended school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘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…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 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 the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides educational instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

A Private School placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the Private School must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The Private School need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. “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). Finding that the DOE did not provide a FAPE to Student during the 2022-2023 extended school year, the burden now shifts to Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that Parent has met that burden. The Private School appears to have provided educational instruction specially designed to meet Student’s academic, regulation, and sensory needs, by providing special education services, by a New York State certified special education teacher, in a small supportive setting. The Private School also provided related services of speech-language therapy, occupational therapy, physical therapy, counseling, and parent counseling and training, all delivered by NYS licensed providers. Student also received instruction to improve her daily living skills. With respect to Student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). However, here Student has made progress as characterized by both the Parent, and progress reports.

Based upon all the above, I find that the Private School was an appropriate placement for Student for the 2022-2023 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of Parent. Parent has provided appropriate notice to the DOE of their intent to unilaterally place Student in the Private School and seek reimbursement (P-Ex. B, C; Tr. 86-87). To the extent possible, the Parent has participated in all aspects of the special education process and there was no evidence presented that would operate to preclude or otherwise diminish a reimbursement award. Additionally, Parent signed a contract with the Private School for which she is personally liable should the DOE decline to reimburse her (P-Ex. H). Parent also testified that she has an inability to pay the rates agreed to by Parent and the Private School (Tr. 91). Based on the foregoing, the credible evidence presented supports a finding that Parent was financially obligated to, and could not afford to, fund the costs of Tuition for Student at the Private School during the 2022-2023 extended school year.

DECISION:

Based on a review of the record and the facts mentioned above, I find that the DOE failed to provide the Student FAPE during the 2022-2023 extended school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I further find that the Parent is entitled to reimbursement and/or funding of tuition at the Private School.

ORDER:

1. ORDERED that upon its receipt of an invoice detailing the student’s tuition and related costs at REDACTED School, located at REDACTED, the DOE shall directly pay the cost of the student’s tuition and related services for the 2022-2023 school year to the REDACTED School in the amount of $155,900.00, and that the Department issue such payment within 30 days of its receipt of the invoice;

2. ORDERED that upon reasonably satisfactory proof of payment by the Parent to the REDACTED, the DOE shall reimburse the Parent for the deposit paid by her towards the 2022-2023 tuition at REDACTED in the amount of $100.00, and that the Department issue such payment within 30 days of receipt of its receipt of proof of payment from the Parent;

3. ORDERED that the Department of Education is Ordered to complete a triennial evaluation for Student, which shall include, at minimum, a psychoeducational evaluation, a social history update, a classroom observation, a functional behavior assessment, and a speech-language therapy evaluation. Upon completion of the triennial evaluation, the Department of Education is Ordered to provide a copy of all reports to Parent and the CSE for review.

SO ORDERED

DATED: October 23, 2023

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 of 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 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, and proof of service with the Office of State Review of the State Education Department within two days after the 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 – PERSONALLY IDENTIFIABLE INFORMATION

REDACTED, a minor, by and through his parent, REDACTED

v.

New York City DOE, CSE Region REDACTED

Student REDACTED

Parent REDACTED

Private School REDACTED

The Director REDACTED

APPENDIX B – ADMITTED EXHIBITS

REDACTED, a minor, by and through his parent, REDACTED v. New York City DOE, CSE Region REDACTED

PARENT EXHIBITS

A. Hearing Request 11/11/22 9 pages

B. Ten-Day Notice Letter 06/17/22 1 page

C. Email Confirmation Receipt of Ten-Day Notice 6/22/22 1 page

D. Individualized Education Program Individualized Education Program (IEP) 07/28/22 42 pages

E. Individualized Education Program (IEP) Notes 07/28/22 4 pages

F. Evaluations and Assessments REDACTED Autism Evaluation Progress Reports 02/07/19 8 pages

G. Interdisciplinary Report of Progress Update 12/2022 8 pages

H. Enrollment and Attendance Records Enrollment Contact with Addendum 06/17/22 6 pages

I. Attendance Record, Summer 07/2022 1 page

J. Attendance Record 03/24/23 1 page

K. Tuition Affidavit 03/29/23 1 page

L. Correspondence and Miscellaneous Records Prior Written Notice with School Location Letter 06/24/22 8 pages

M. Class Schedule, Summer 2022 07/2022 1 page

N. Prior Written Notice 08/04/22 10 pages

O. Prior Written Notice 08/30/22 6 pages

P. Class Schedule 2022-2023 1 page

Q. REDACTED Program Description Undated 8 pages

R. Closing Brief DEPARTMENT OF EDUCATION EXHIBITS: 10/04/2023 8 pages

NONE/NOT APPLICABLE

IHO EXHIBITS:

NONE/NOT APPLICABLE

Footnotes

[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.