New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

The student’s parent filed a request for an impartial hearing on November 18, 2022, challenging the student’s educational program for the 2022-2023 school years and requesting funding for the student’s unilateral placement at the REDACTED (“the private school”) for the 2022/2023 school year, compensatory education and transportation.^[1] (Par. Ex. A). I was designated to hear this matter on January 13, 2023, pursuant to 20 U.S.C. Section 1415(f)(1).

A pre-hearing telephone conference was held on January 23, 2023. An impartial hearing was held on March 10 and March 17, 2023. The compliance date was extended three times, with a final compliance date of May 2, 2023. (IHO Ex. I).

Department of Education (“DOE”) Position

The DOE did not present any evidence or argument at the hearing. (Tr. pp. 9, 25).

Parent’s Position

The parent is seeking a finding that the student was denied a FAPE, as the DOE failed to locate an appropriate non-public school for the student, although her IEP provided for one. The parent seeks direct funding for tuition at the private school for the 2022/2023 school year. (Tr. pp. 12, 24-25).

Evidence at Hearing

The student received Early Intervention Services and services through the Committee on Preschool Special Education. (Par. Ex. D). In a March 28, 2022 IEP, she was classified with an Intellectual Disability, and recommended for placement in a Special Class (12:1:1), with related services of Counseling, Occupational Therapy (“OT”), Physical Therapy (“PT”) and Speech/Language Therapy (“SLT”). The parent attended the meeting. (Par. Ex. B).

An Independent Neuropsychological Evaluation was performed on July 19, 2022. The student was diagnosed with Autism Spectrum Disorder (“ASD”), Intellectual Disability, Moderate, and Attention-Deficit/Hyperactivity Disorder (“ADHD”), predominantly inattentive presentation. (Par. Ex. D). It was recommended that she be placed in a special education program that utilizes ABA methodology, in a class of no more than eight students, with a one-to-one paraprofessional and year-round instruction to prevent regression. (Par. Ex. D).

In a Findings of Fact and Decision (“FOFD”) dated August 18, 2022, it was ordered that the Central Based Support Team (“CBST”) place the student in a school that utilizes ABA methodology, in a class of no more than eight students, with a one-to-one paraprofessional and year-round instruction. (Par. Ex. I).

Another IEP meeting was held on September 19, 2022, and the parent attended the meeting. (Par. Ex. W). In conformity with the FOFD, the student was recommended for placement in a Special Class (8:1:1), with related services of Counseling, Occupational Therapy (“OT”), Physical Therapy (“PT”) and Speech/Language Therapy (“SLT”), a full-time paraprofessional and twelve-month programming, at a NYSED-Approved Non- Public SchoolDay (Par. Ex. C).

Nevertheless, no such NPS was identified. The parent identified the private school, and the student was offered a placement there. (Par. Ex. W).

On September 23, 2022 the parent wrote to the CSE stating that in the in the absence of an appropriate placement for her daughter, she intended to enroll her at the private school and seek funding. (Par. Ex. J).

On October 13, 2022, the parents signed a contract agreeing to pay $79,625.00 for the student’s tuition at the private school for the 2022-2023 (ten month) school year. (Par. Ex. K). The parent made no payment toward the tuition, due to her limited income, and is requesting direct funding. She testified that her daughter has progressed in her life skills, language and academics, since attending the private school. (Par. Ex. L, W).

The principal of the private school testified (by affidavit) that she has a Master’s Degree plus additional credits in Special Education The private school serves 204 students, on the autism spectrum, aged 5 to 21 years old. Many of the students also have significant language and sensory integration deficits. The school has a sensory gym, and each classroom has its own sensory corner.

The student began attending the school in October 2022, and was placed in a classroom with six students, one teacher, one teaching assistant and two paraprofessionals. The classroom teacher holds a Master’s Degree in special education. Lesson planning takes place in collaboration with the Board Certified Behavior Analysts (“BCBA’s”). The student participates in a blended program, which pairs students who have intellectual impairments with students of average and above average intellectual ability. Within this program, all of the students have a Functional Behavior Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) or Action Plan, to help them regulate and become available to learn. (Par. Ex. V). For this student, the targeted behavior was task avoidance, with mild, disruptive behavior. (Par. Ex. O). An Action Plan, consisting of positive verbal praise, a visual schedule, individualized instruction and other procedures were developed to address the behavior. (Par. Ex. P).

ABA methodology of discrete trial learning is used for academics. Other ABA methodologies such as visual schedules, timers, token economy system and positive reinforcement are also used in the program. Social skills classes are built into the students’ schedules. Students also receive life skills training. The school provides related services of Counseling, PT, OT and SLT; and parent training once per month. The student receives SLT three times per week (twice individually and once in a group); OT three times per week individually; PT twice per week (once individually and once in a group) and Counseling once per week in a group. (Par. Ex. V). Goals were developed for all of the student’s related services. (Par. Ex. R, S, T U).

The principal testified that the student receives one-to-one support from the teacher and the teacher’s assistant; and does not require an additional paraprofessional. (Tr. p. 23).

For academics, the student is working on identifying letters and numbers. She needs maximal verbal prompting when reading a word on a pre-k level. She enjoys socializing, but prefers engaging in conversation with staff. She is working on playing games during recess, with classmates. She benefits from a positive reinforcement plan, and requires the use of ABA methodologies. The principal testified that the student benefits from the school’s small, autism focused learning environment. (Par. Ex. V).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

2021-2022 School Year

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2022/2023 school year. The DOE failed to present any evidence to support its recommendations. The parent’s testimony that the student was not offered any location for implementation of the student’s IEP was not challenged or contradicted.

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that that the parent demonstrated that the program at the private school was specially designed to meet the student’s unique needs. The school provides the student with a special education program that utilizes ABA methodology, in a class of six students, with a oneto-one support from the teacher and teacher’s assistant. The student receives related services of SLT, OT, PT and Counseling. The student’s avoidance behavior is addressed through an Action Plan. She is responding well to the school’s small, autism focused learning environment.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012).

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998

The record indicates that the parent participated in IEP meetings, and provided 10-day notice of her intention to unilaterally place the student and seek funding. The parent presented evidence that she was unable to pay the tuition and seek reimbursement.

For the reasons set forth above, I find that the parent is entitled to direct funding for the student’s tuition at the private school for the 2022-2023 school year, in the amount of $79,625.00.

For all of the foregoing reasons, it is hereby ordered as follows:

1. The DOE shall, by April 25, 2023, fund the student’s tuition ($79,625) at the private school for the 2022-2023 school year; Dated: April 10, 2023

Dora M. Lassinger

DORA M. LASSINGER, ESQ.

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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

IMPARTIAL HEARING OFFICER EXHIBITS

PARENT’S EXHIBITS

REDACTED

Footnotes

[1] The claims for compensatory education and transportation were withdrawn on the first date of hearing. (Tr. p. 14).