New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594519 – NYC: 244607

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 244607

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

Schools: [Redacted] (referred to as “Interim School”) [Redacted] (referred to as “Private School”)

Date of Complaint: January 5, 2023

Hearing Dates: February 24, 2023

Actual Record Close Date: February 24, 2023

Decision Date: March 9, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 24, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Paralegal

[Redacted], Parent Student

[Redacted], Parent Student

[Redacted], Head of Admissions, Private School

[Redacted], Program Director, Interim School

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 5, 2023, regarding the 2022/23 school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the 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 2022/23 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Interim School and direct funding and placement at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 24, 2023. A prehearing conference was held on February 9, 2023, to discuss the issues in the case. The hearing began February 24, 2023, and was completed in one day (See, Transcripts).^[2] The District did not present a prong I case and conceded FAPE (T. 5). The Parent presented exhibits^[3] and three witnesses. The record closed on February 24, 2023. There were no extensions of the compliance timelines.

FINDINGS OF FACT

The Student is a [Redacted] year old student who currently attends the Interim School during the 2022/23 school year (P-Ex. A). The Student is diagnosed and classified as a student with Autism (P-Ex. A; C). The Parent testified regarding the Student’s behaviors at home and stated that it was very difficult to keep him safe (T. 66). The Student constantly tried to elope from the apartment and has in fact escaped and 911 had to be called (T. 66). The Student has no safety awareness and as he gets older and stronger it is more difficult to keep him safe at home (T. 66-67). The Student is nonverbal and is unable to explain his wants or needs and instead screams (T. 67). He will scream on the way to school and then home (T. 68). The Student has also become aggressive and grabs things from strangers (T. 69). The Parent cannot take him on public transportation or out to eat as he lacks ADL skills (T. 69). One time he pulled a woman’s hair in public (T. 69).

During the 2021/22 school year, the District’s CSE recommended a residential placement but a residential placement was not secured (P-Ex. A). For the 2022/23 school year the Student was again recommended for a residential placement and despite being referred to the CBST and packets being sent to NYS approved schools, the Student was rejected from all of them (P-Ex. C-28; Ex. T; T. 63-64). The IEP for the 2022/23 school year also recommended a 6:1:1 interim placement (P-Ex. C-27). Packets searching for placement were then sent to NYS approved outof-state schools, and he was rejected from those as well (P-Ex. T; T. 64).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded 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). In order to demonstrate that FAPE is being provided, the school district 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.

Here, the District failed to present a case and conceded FAPE. Regardless, I find that the District’s failure to implement the residential program recommended in the IEP developed for the 2022/23 school year, was a denial of FAPE.

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 also, 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 education 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).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must 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.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

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 District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of both the Interim School and the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Schools provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction. Interim School The Program Director and BCBA at the Interim School testified regarding the Interim School (T. 41). The Interim School provides an intensive 1:1 program for students with special needs (P-Ex. G: T. 42-43). The Primary focus is teaching the prerequisite skills needed to succeed in a less restrictive environment (P-Ex. G). The Interim School also helps students develop functional life skills and social skills by targeting behaviors and meeting developmental needs (P-Ex. G). Students are provided with 1:1 support within a small group setting for behavioral and instructional needs (P-Ex. G).

The Student began at the Interim School in February 2022 (T. 43). The Student was described as nonverbal, with very few skills (T. 44). The Student presents with skin picking, grabbing, pulls clothes, arms, jewelry, recently began grabbing breasts, screams, elopes, and is resistant to toileting and wears a pull up (T. 45-46). The Student was provided with a 1:1 ABA program, meaning that every classroom was supervised by a BCBA or a special education teacher, and every student has a 1:1 behavior technician throughout the day (T. 44-45). The Student also received occupational therapy and speech services (P-Ex. K; T. 55). With respect to the student’s progress at the Private Schools, 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]). Here, the Program Director testified that the Student has made some progress while at the Interim school, however that progress has been minimal (P-Ex. M; T. 48). The Student requires a lot of repetition and practice to learn new skills, and he loses skills as he learns new skills (T. 48). The Student’s behaviors were described as challenging, and despite working on his behaviors, new behaviors would arise (T. 48). The Program Director testified that his behaviors have become pretty highly challenging and agreed that the Student was in need of a residential placement (T. 47; 48).

Based on all of the above, I find that the Interim School was an appropriate placement for the Student at the beginning of the 2022/23 school year, while the Parent and District searched for the recommended residential placement. Private School The Head of Admissions for the Private School testified regarding the Private School (T. 21). The Private school is a therapeutic day and residential school for students on the autism spectrum (T. 22). The Private School has 84 students with about 65 students who are residential (T. 22). The Private School was described as being housed in one building where students live, learn, and eat (T. 23). All students have their own private dorm room with shared bathrooms (T. 23). Students are dormed based on age, gender, and cognitive functioning (T. 23). The Private School has a working farm with animals, a life skills house, playground, and rooms for art, science, physical education, music and classrooms (T. 23). Although not New York State approved, the Private School is exploring state approval (T. 23-24). Residential students run from 8 years old to 23 years old and are on the autism spectrum (T. 24). The Private School currently employs two Board Certified Behavior Analysts (BCBAs) and are hiring more (T. 24). The BCBAs are in the classrooms, create a student’s FBA and/or BIP, train staff that are working with the students on the plan, and oversee the plan (T. 24). For the remainder of the 2022/23 school year, the Student would be placed in a program that has four to five classrooms, with four students in each class (T. 25-26). Each student is assigned a 1:1 paraprofessional and there is a teacher in each classroom (T. 26). Classroom teachers are certified or working toward certification, and 1:1 paraprofessionals have at least a high school diploma and two to three years of experience working with students with autism (T. 26). The academic day is an 8 hour day and after school they work on life skills and communication (T. 36-37). Everything is structured (T. 37). After the classroom day, students go back to the dorm to unwind for 30 minutes, then they attend a structured activity, then dinner, another structure activity, then shower, ADLs, and then lights out (T. 37). Residences have overnight staff (T. 27).

In deciding if a student is a good fit at the Private School, they review a student’s paperwork, conduct an interview with the family and student, and meet with the current or past program (T. 27-28). With regard to the Student, the Private School looked at the safety and security of the Student first to make sure they could keep him safe on campus (T. 28-29). Once they determined that they could keep the Student safe, then they analyzed whether they could service the Student across all disciplines; life skills, clinically and educationally (T. 29). The Private School determined they could keep him safe and help him make progress (T. 29). If the Student were to attend the Private School he would have a 1:1 paraprofessional, an FBA would be conducted, and it was anticipate that he would need a BIP (T. 30). For the first eight weeks at the Private School, the staff will work off of his current IEP and BIP, and they would add to it, as needed (T. 30). The Private School guarantees to deliver the services on the IEP at a minimum, while reassessing and rewriting it into an ITEP (the T stands for transdisciplinary) (T. 34). Progress is tracked by the clinical team, campus life and education, and quarterly progress reports are provided to the family (T. 35). Based on the topography of his behaviors and the way he presents, the Head of Admissions testified that the Private School has all the resources needed to meet the Student’s needs and help him make progress (T. 33).

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 the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and assisted in securing a residential placement for the Student.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2022/23 school year. I further find that the Parent’s unilateral placement at the Interim School and Private School were appropriate and that the Parent is entitled to reimbursement and direct funding. The Parent testified that they did not have the funds to pay for the tuition at Private School, or continue to pay the Interim School (T. 58-62). I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

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

1. ORDER THAT, the District shall reimburse the Parent and/or directly pay the Interim School for all tuition and fees for the Student’s unilateral placement from July 1, 2022 through March 10, 2023;

2. ORDER THAT, the District fully and directly fund the tuition and fees for the Student’s unilateral placement at the Private School starting March 13, 2023, through the end of the 2022/23 school year, on a 12-month basis.

SO ORDERED

DATED: March 9, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, 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.

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. DPC 1/5/23 9 pages

B. Ten Day Notice 12/16/22 2 pages

C. IEP 5/20/22 36 pages

D. IEP 12/15/22 39 pages

E. Parent email with attachments 12/26/22 57 pages

F. Interim School Contract 7/6/22 5 pages

G. Interim School Program Description 2022/23 1 page

H. Remote Learning program 2022/23 1 page

I. Letter re: Remote Instruction 9/16/22 1 page

J. Interim School Attendance 2022/23 1 page

K. Interim School Schedule 2022/23 1 page

L. Interim School Tuition Affidavit 2/6/23 1 page

M. Interim School progress report 12/2022 7 pages

N. Email to CSE with reports 12/14/22 10 pages

O. WITHDRAWN

P. Private School Contract 2023 6 pages

Q. Private School Affidavit 2/16/23 1 page

S. R Tax returns 2021/22 5 Neuropsychological Evaluation 4/13/22 4 pages

T. Email from CSE re: residential 12/12/22 2 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.