New York City Department of Education, Impartial Hearing Decision

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

x REDACTED, by and through his/her Parent(s), Petitioners,

FINDINGS OF FACT AND DECISION

- against

Case No. 246808

THE NYC SCHOOL DISTRICT,

BLUETH BROMFIELD, ESQ.

Respondent.

Impartial Hearing Officer

x

JURISDICTION

This case was appointed, the due process hearing was held, and a decision 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.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”)

on Petitioners’ due process complaint (DPC), filed on or around March 20, 2023. (P - A).^[1] The resolution period expired without the parties reaching an agreement. This IHO was appointed on March 22, 2023. A pre-hearing conference in this matter was held on, April 25, 2023. A closed hearing was held on July 11, 2023. The initial compliance date was April 19, 2023. Extensions were granted extending the compliance date to August 12, 2023. The record closed on August 2, 2023.

BACKGROUND

What follows below are the facts as per the DPC and parent’s disclosures. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Autism. She is diagnosed with Autism Spectrum Disorder (ASD) and Mixed Receptive­ Expressive Language Disorder. The student exhibits delays in social skills, academic achievement, and communication/receptive and expressive language. The student’s classification and eligibility for special education supports and services are not in dispute. The school year (SY) at issue in this DPC is the 2022-23 SY, during which the student was attending the REDACTED (the private school).

On May 31, 2022, the Committee Special Education (“CSE”) convened for an Individualized Education Program (“IEP”) meeting for the student. The resultant IEP recommended a 12:1+1 special class in a NYC DOE Non-Specialized District School with special transportation and the following related services: Occupational Therapy (OT), Individual, 2 x 30 minutes per week; Parent Counseling and Training (PCT), Group, 2 x 60 minutes per year; Speech and Language Therapy (SLT), Group of 3, 1 x 30 minutes per week; and SLT, Individual, 2 x 30 minutes per week. (P – H).

Parents disagreed with the CSE’s recommendation and felt, for the following reasons, that the recommendation was not appropriate and was not reasonably calculated to enable the student to make progress: the IEP failed to list the records considered in the development of the IEP, except for a "December 2021" neuropsychological evaluation (which parent never received); the IEP included only three of the five speech-language goals recommended by the preschool turning five progress report dated January 7, 2022 (P – L); the IEP did not contain any socialemotional goals for the student; the CSE failed to develop measurable goals; the CSE failed to conduct a functional behavior assessment (FBA) to determine whether the student would benefit from a behavioral intervention plan (BIP); the IEP denied the student a 12-month service and/or program, even though the student received a 12-month services and program for the previous two years; DOE failed to gather regression data necessary to determine whether the student was eligible for extended school year (ESY) services or programs and the CSE denied the student 12-month services and program without any new evaluative information on which to base the decision; DOE failed to consider areas such as social skills; DOE failed to provide a specific methodology appropriate to meet the student’s needs, e.g., Applied Behavior Analysis (ABA) therapy; DOE failed to consider the student's need for transitional support services to facilitate the student's transition to a less restrictive, less supportive placement; and DOE failed to conduct an adaptive physical education (APE) assessment to determine whether the student can participate in regular physical education, despite its acknowledgment that the student can rarely jump backward two consecutive jumps, is not able to catch a tennis ball, and has asthma. The parent expressed her concerns with the placement offered by DOE at the IEP team meeting.

On June 15, 2022, DOE issued a prior written notice (PWN) informing the parent of a recommended placement for the student for the 2022-23 SY. After receiving the PWN, the parent contacted the recommended placement to schedule a visit. She was unable to visit the school because of COVID protocols but was able to speak with the principal. The principal told her that the school did not have a 12:1+1 program and informed her that she would have to agree to a new IEP meeting that would change the student’s special education services from 12:1+1 to 12:1 if the parent wanted to send the student to the recommended placement. On August 16, 2022, the parent emailed the principal, confirming what the principal had told her. In addition, she requested a list of schools and contact information for schools that could provide the recommended special education services; however, parent did not receive a response. The parent was concerned with DOE’s failure to offer a placement consistent with the mandate of the IEP.

On September 2, 2022, through a ten-day notice (TDN), the parents notified the CSE of their intent to unilaterally place the student at the private school effective September 16, 2022. (P – UU & XX). The CSE acknowledged receipt of the notice on September 1, 2022. (P – VV). The parents thereafter filed the DPC which is the basis for the instant case. The parents maintain that the DOE has failed to provide the student a FAPE for the 2022-23 SY. The parents are seeking relief of: direct tuition funding for parent’s unilateral placement of the student at the private school; an order that DOE provide appropriate bus transportation to and from the private school for the 2022-23 SY; an order reimbursing the parent for transportation expenses incurred, within 30 days of the decision; an order for DOE to conduct an APE assessment, or in the alternative, a physical therapy evaluation to be conducted by a physical therapist who is familiar with adapted physical education, within 30 days of the decision; an order that the CSE reconvene within 45 days of the decision to consider the findings and recommendations of the student's evaluations, including the APE, to develop a new IEP for the student and to review current evaluations & assessments to establish the student’s eligibility for the ESY services; and an order that if the student is again denied ESY, DOE must provide, withing five business days, a written explanation of why ESY was not included on the students IEP.

THE HEARING

The following persons appeared at the hearing:

For the Department of Education:

REDACTED, DOE Representative

For the Student:

REDACTED, Parent Representative

REDACTED, Neuropsychologist, (Witness #1)

REDACTED, Head of School at the private school, (Witness #2) REDACTED, Grandmother, (Witness #3)

The DOE representative stated that DOE was not defending prong I, provided no disclosures or witnesses, and did not cross examine parent’s witnesses.

The parents’ representative argued that DOE failed to provide an appropriate IEP for the student based on her individual needs and requirements. DOE did not conduct proper evaluations and the IEP does not address the student’s adaptive physical education needs given the student’s motor skills and asthma. The student had ESY services prior to the 2022-23 SY, however, the May 31, 2022 removed ESY eligibility although there is no indication that any regression data was considered prior to the removal. Nor did the IEP provide a program to address the student’s social and behavioral skills, despite the student being diagnosed with autism and having social and behavioral needs. The IEP failed to address the student’s behavioral support, APE, and direct instruction in social skills. The February 23, 2022 neuropsychological evaluation suggested that the child needed ABA so she could benefit from the educational program, but the IEP developed did not identify any instructional or behavioral management methodology. The recommended placement did not have a 12:1+1 program. The IEP did not provide for any transitional support services. The student requires special transportation services; however, DOE did not provide transportation for the student in the first days of classes at the private school, requiring the parent to spend time and incur expenses related to that transportation. DOE has the burden of proof and has not offered any witnesses, any evidence supporting appropriateness, and has not defended prong I. As to prong II, the private school is appropriate. And, as to prong III, DOE has presented no evidence that the parent did not participate in or obstructed the IEP process. The parent has participated and the equity's favor the parent. Parent is requesting all the relief listed in the DPC. Parent notes that the request for the APE assessment was part of a partial resolution agreement dated March 28, 2023, but as of the time of the hearing, parent had not yet received any evaluation ^[2], so the parent asks that an order for the assessment be included in the decision. (P - C).

DOE countered that (1) if applicable, DOE should not be required to provide a written explanation for denial of ESY, as DOE already has a responsibility to explain its recommendations on its IEP, by way of the CSE to the parent in a PWN, and in various sections of the IEP, and the IHO should not usurp the CSE's obligations under the Regulations to require the CSE to explain further or provide further explanation to the parent of its recommendations than it is already required to do, and (2) the IHO should not order a reconvene for an IEP as the CSE has already conducted a 2023-24 IEP meeting for the student on May 31, 2023, and the IHO should not order the Department to duplicate this effort again with another IEP.

Relevant portions of the witnesses’ testimonies are as follows.

Witness #1 - Affidavit Testimony

She is the Head of Clinical Neuropsychological Services at REDACTED, an assessment and diagnostic clinic. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, and professional experience]. For the last 32 years she has provided neuropsychological assessments to individuals who have developmental, learning, neurogenerative disorders and traumatic brain injury, and has worked with those who experience developmental disabilities, and their families, and has provided community education. She is familiar with the student as she has completed a review of the student’s medical and educational records, including the neuropsychological evaluation of the student resulting from evaluations conducted February 8, 2022, and February 23, 2022. She is familiar with the student’s family history as she has evaluated that student’s mother and uncle at the clinic; has conducted clinical interviews with Witness #3, the student and the student’s private school teacher via tele-conference; and has conducted a school observation of the student at the private school. She has conducted a review of records/evaluations including a psychological evaluation of May 2020, autism evaluation of September 2019, the neuropsychological evaluation of February 2022 and DOE conducted classroom observations, social history update, and psychological evaluation. The private school is a school which serves children with developmental disabilities, particularly Autism, and it provides individualized instruction to students and applies ABA to the teaching methods it employs. ABA is the application of behavioral principles such as positive reinforcement, shaping in small steps, prompting and repeated practice. ABA is an effective method to teach children with Autism and other developmental disabilities. She agrees with the recommendations made in the student’s February 2022 neuropsychological report, including the use of a researched based methodology like ABA, and the recommendation for a small, structured classroom (12:1+1) with consistent one-to-one support. (P – I). The report of her assessment of the student, dated June 30, 2023, is included in the disclosures ^[3]. (P – J). In her clinical opinion, the student needs an individualized education program that incorporates methods of teaching like ABA, supports and therapies appropriate for a child with autism, 1:1 instruction, methodology with repetition, and ESY to prevent regression and skill loss. The student’s needs have been met by the private school during the 2022-23 SY.

Witness #2 - Live Testimony

She is the Head of School at the private school. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, professional experience and duties and responsibilities. Her CV is exhibit GGG.] She is a special education leader and a behavior analyst who is licensed and certified by a board of behavior analysis. She has been working with individuals with ASD and other developmental disabilities for the past 19 years. The private school is an independent special education school designed for individuals on the autism spectrum and with other developmental disabilities, who have mild behavior challenges, and who are mid to high functioning level 1 to 2, according to the DSM-5 ^[4]. The private school offers very specialized and small environment special education classrooms with low student-to-teacher ratios, 6:1+2, 8:1+2, or 10:1+2, and intensive integrated related services, including SLT, OT, physical therapy (PT), and counseling services (CS). Each classroom: is led by a certified special education head teacher or Board-Certified Behavior Analyst (BCBA) and two assistant teachers; has a licensed SLT, OT, PT, and social worker; and individualized therapies are provided either in a push-in or pull-out format. The private school is an ABA school that includes the development of FBAs, BIPs, positive reinforcements and school-wide multidisciplinary proactive measures. The private school uses the basic principle of ABA, a research-based educational methodology, which consist of environmental variables that impact behavior, and through environmental modification, the private school provides individualized support and appropriate level of prompts to increase socially significant behaviors while decreasing, replacing, or shaping impeding behaviors so that students can focus more on active learning behavior. The private school’s educational and related services teams work very closely. There are weekly classroom meetings and biweekly team meetings, and updates are sent to families by email on a weekly basis with all team members being copied to ensure that strategies are applied across different settings and across different persons supporting the student. The private school follows the Common Core State standards, which is modified for each student based on the student's academic potential and repertoire and the school has APE. The private school implemented a school-wide program called REDACTED which focuses on improving students' social and emotional development. PCT is provided monthly. The private school’s facilities were designed to ensure that it was sensory integrated (texture, lights, therapy rooms, sensory gym and equipment). Students received their related services either in the bathroom, sensory gym, multipurpose room, outdoor playground, or in the classroom, depending on the goals that are being addressed. The private school’s behavioral treatment consists of conducting thorough assessments and observations to determine targeted behavior, recording and analyzing data collected daily, and implementing proactive measures to shape the students’ behaviors. There are quarterly reports showing progress or lack of progress on targeted behaviors. All students go through an admissions process ^[5]. The private school’s goal is to create an appropriate and productive peer environment, so classes are grouped according to a student’s behavior skills, level of social repertoire, physical development, self-management skills, behavior support needs, academic readiness, and social communication skills. Students receive 1:1 or 2:1 instruction as needed. She is familiar with the student. In addition to other documents, she’s reviewed the student’s May 31, 2022 IEP. She was concerned with 12:1+1 class ratio recommendation in the IEP as it was not conducive for the student to learn, the IEP did not mention a BIP or ESY, and the IEP goals were not appropriate for the student because the student was missing prerequisite pre-academic skills. The student requires a highly structured environment in a full-time special education setting and needs a year-round program and services because of the magnitude of the student’s cognitive, academic, and social delays. The private school placed the student in an 8:1+2 classroom with SLT and OT, her classroom instruction was provided by a BCBA and two assistant teachers, and she had a BIP. The private school noticed regression in the student, even after a short break or a long weekend. The private school monitors the student’s progress daily through collected data and graphs. Data summaries are provided to the family weekly and progress reports are provided quarterly and annually. When she first came to the private school, there were two goals that the private school wanted to address with student before implementing academic goals - the student did not seem to understand or know how to initiate social interactions with her peers and she also had difficulty maintaining focus. The private school focused on helping the student in these areas by teaching hear appropriate social skills and working to improve the student’s on-task behavior with repeated instruction and reminders. The student has made progress during the 2022-23 SY in all areas, including her academic progress, behavior management, and social interaction skills. The private school has been able to meet the student’s individualized special education needs in the least restrictive environment that is appropriate for her current level of functioning. The private school is an appropriate placement and program for the student during the 2022-23 SY. Parent has not paid tuition for the student, but parent is responsible for the tuition.

Witness #3 – Affidavit & Live Testimony

She is the student’s maternal grandmother. She actively participates in the educational planning and decision making for the student and the student’s mother has signed a power of attorney giving her the power to do so. (P – RR). The student was initially diagnosed with ASD when she was 2 years old and was again diagnosed with ASD in a neuropsychological evaluation dated February 8 and 23, 2022. (P – I). The neuropsychological evaluation recommended an ABA program for the student in a small, structured classroom (12:1+1) with consistent and frequent one-to-one support and related services of SLT, OT, and social skills support. A copy of this evaluation was provided to DOE for consideration at the May 31, 2022 IEP meeting. (P – MM). The student was receiving ESY prior to the IEP developed on May 31, 2022. In the Turning Five Report written by REDACTED, dated December 15, 2021, she recommended that the student be placed in a 12-month education program. (P – K). In the Turning Five Report written by REDACTED, dated January 7, 2022, she recommended that the student receive an evaluation by a developmental psychologist. (P – L). The DOE did not conduct the recommended evaluation for consideration at the May 31, 2022 IEP meeting and did not include a 12-month program in the IEP. She participated in the May 31, 2022 IEP meeting. At the meeting there was no evaluative data presented that would justify the removal of the student’s eligibility for a 12-month program. The student needs consistent reinforcement to maintain her skills and to prevent regression. She disagrees with the removal of the student’s ESY eligibility, DOE’s failure to offer a research-based methodology, and DOE’s failure to offer behavioral support, APE, and direct instruction in social skills. She received the PWN with school location, dated June 15, 2022. She was told by the principal of the recommended placement that the recommended placement did not have a 12:1+1 program, only offers a special class staffing ratio of 12:1 with no additional paraprofessional support, and that not all the related services mandated on the IEP were available at the school. She sent DOE a TDN of her intent to unilaterally place the student at the private school because of her concerns with the IEP and the recommended placement. She feels that the private school is appropriate for the student. The student is making progress there. The student’s verbal expression is improving, she is happy at the school, she trusts the staff and the student benefits from the private school’s teaching and behavior methods used, including ABA. The private school communicates with the witness. The student needs ESY as she regresses when away from school for periods of time and because she needs consistent work to retain skills. She sees regression in the student when she tries to work with her at home and the student forgets certain things and how to do stuff, so she shies away from trying to do it. The student required an APE assessment because sometimes, when she jumps or runs, she falls. DOE has not always provided transportation as mandated in the student’s IEP for the 2022-23 SY. The witness incurred expenses for transporting the student to and from school for 12 days at the beginning of the SY, from September 16, 2022 to October 6, 2022. She had to take the bus and the train to bring the student to school. Each trip cost $2.75 and she made four trips each day ($11.00 per day) – round trip to drop the student in the morning and round trip to pick the student up in the afternoon. She does not have receipts for the transportation expenses because she used either a metro card or change that she had at home. (P – CCC). She is unable to pay the private school annual tuition upfront and is requesting an order for direct funding of the tuition for the 2022-23 SY at the private school.

ISSUE

The issues are: whether DOE is required to fund tuition/tuition reimbursement in relation to the parents’ unilateral placement of the student at the private school? whether the student is entitled to transportation/transportation reimbursement? whether the student is entitled to DOE APE assessment?

RULE OF LAW

Tuition Reimbursement – The 3-Prong Burlington/Carter Analysis The issue of whether a parent is entitled to tuition reimbursement for unilaterally placing their child at a private school is governed by the three-prong Burlington/Carter analysis. See School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four v. Carter, 510 U.S. 7 (1993). Burlington/Carter provides that a Board of Education is required to pay for educational services obtained for a child by the child’s parents, (1) if the services offered by the Board of Education were inadequate or inappropriate, (2) the services selected by the parents were appropriate, and (3) equitable considerations support the parents’ claim.

First Prong States receiving public funds under the IDEA are required to provide FAPE to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“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). The IDEA directs that a determination as to whether a student received a FAPE must be based on substantive grounds and/or procedural inadequacies. 20 U.S.C. §1415(f)(3)(E). 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, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 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). Specifically, a procedural FAPE violation has occurred if the district’s alleged procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)

Second Prong The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Id. The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be likely to produce progress, not regression.

Third Prong The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if (1a) at the most recent IEP meeting, prior to their removal of the child from public school, the parents did not inform the CSE that they were rejecting its proposed placement and that they intended to place their child in a private school at public expense or (1b) the parents did not provide the school district with written notice of such information ten business days before such removal; (2) if the district prior to parent’s removal, Transportation The IDEA specifically includes transportation, as well as any such developmental, corrective, and other supportive services necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]). Transportation as a related service can include: travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]). Special transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053; see Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 [OSERS 2009]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (8 NYCRR 200.1(ww)).

Burden Of Proof

The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington/Carter test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).

APPLICATION OF LAW

As a preliminary matter, I find that the DOE failed to procedurally provide the student FAPE in that the IEP failed to list the records considered in the development of the IEP and DOE failed to offer a placement consistent with the mandate of the IEP for the 2022-23 SY. The DOE also failed to substantively provide the student FAPE, as is demonstrated in the application of the Burlington/Carter analysis below.

The DOE has failed to meet its burden that it provided the student with a FAPE. DOE was represented at the hearing but did not provide any witnesses or disclosures and did not put on a prong I case. There is nothing to show that the DOE’s recommended education program was reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Further, the student is autistic, and exhibits delays in social skills, academic achievement, and communication/receptive and expressive language. Yet, the IEP included only three of the five speech-language goals recommended by the preschool turning five progress report, the IEP did not contain any social-emotional goals, DOE failed to consider areas such as social skills, DOE failed to conduct an APE assessment while knowing that the student had asthma and motor skills issues, the student's need for transitional support services were not provided for, the CSE denied the student a 12-month program without a basis for doing so, DOE did not provide transportation for the student in the first 12 days of classes at the private school, and the recommended placement did not have the recommended 12:1+1 program. The student was not provided a FAPE for the 2022-23 SY.

Parents have sustained their burden of demonstrating the appropriateness of the private school placement. The student was diagnosed with autism, and a February 2022 neuropsychological evaluation recommended that the student receive instruction using researched based methodology like ABA, a small, structured classroom (12:1+1) with consistent one-to-one support and SLT, OT and social skills support. The private school is an independent ABA special education school designed for individuals on the autism spectrum. It offers small environment special education classrooms with low student-to-teacher ratios of 6:1+2, 8:1+2, or 10:1+2, and related services including SLT, OT, physical therapy (PT), and counseling services (CS). The student was placed in a 8:1+2 class and received related services of SLT and OT. Each classroom at the private school is led by a certified special education head teacher or BCBA and two assistant teachers. The private school develops FBAs & BIPs for the student and uses positive reinforcements. It follows the Common Core State standards, which is modified for each student. The school has APE and offers a school-wide program that focuses on improving students' social and emotional development. PCT is provided monthly. The facilities were designed to be sensory integrated. It provides quarterly reports showing progress or lack of progress on targeted behaviors. Classes are grouped according to a student’s behavior skills, level of social repertoire, physical development, self-management skills, behavior support needs, academic readiness, and social communication skills. Students receive 1:1 or 2:1 instruction as needed. The private school monitors the students’ progress daily through collected data and graphs. The student did not know how to initiate social interactions and had difficulty maintaining focus, so the private school taught the student appropriate social skills and worked to improve the student’s on-task behavior with repeated instruction and reminders. In addition, the student has made progress during the 2022-23 SY. Witness #2 testified that the student has made progress in all areas, including her academic progress, behavior management, and social interaction skills. And as per parent’s testimony, the student’s verbal expression has improved, she is happy at the school, she trusts the staff and the student benefits from the school’s teaching and behavior methods. The private school program is appropriate to address the student’s academic and social/emotional needs and is reasonably calculated to enable her to receive educational benefits.

The DOE has failed to meet its burden that the equities were not in the parents’ favor. DOE did not put on a case and did not provide any disclosures. Absent proof otherwise, I find that the equities favor the parent. There is no evidence that the parents did not attend the IEP meetings, that the parents did not provide the district with a TDN, that the parents were not cooperative with evaluations or that there was unreasonableness or wrongdoing on the part of the parents. Here, equitable considerations favor the parent.

CONCLUSION

I find that DOE failed to provide the student with a FAPE, the parent’s unilateral placement of the child at the private school was appropriate and the equities favor the parents. Accordingly, the parents are entitled to direct payment of the tuition to the private school for the 2022-23 SY. The total cost of the 12-month tuition at the private school is $110,000; however, the student only attended the school for the 10-month SY, so the prorated tuition cost, inclusive of related services, as per the tuition affidavit is $94,487.18. (P – GG & II). Parent has testified that she has not made any payments toward tuition, therefore, DOE must fund all of the student’s prorated tuition cost.

In addition, as per New York Education Law §4402(4)(d), the student is entitled to special education transportation to and from the private school, as provided in the IEP. DOE failed to provide special transportation services to the private school for 12 days after the student started at the school. Parent credibly testified that she spent $11 each day to bring the student to and from the school on the bus and train. Parent is entitled to reimbursement for these transportation costs ($11 x 12 = $132).

Parent credibly testifies that the student has asthma and sometimes, when the student jumps or runs, she falls. Also, the IEP indicates that DOE was aware of the student’s motor skills. This should have been an area of suspected disability. Therefore, DOE should have conducted an APE assessment of the student and agreed to do so in the partial resolution agreement. DOE must provide an APE assessment of the student. DOE will also be ordered to consider, at a reconvene, the student’s need for an ESY, as the parent has testified that the student experienced regression after ESY was removed from the student’s IEP.

DOE made two arguments at the hearing, one is valid and the other is not. I find that DOE’s argument that it should not have to provide a written explanation for denial of ESY is valid. I agree that DOE already has a responsibility to explain its recommendations in IEPs and PWNs. Parent is allowed to attend the IEP meeting and voice her opinion on ESY, can request the notes from the IEP meeting, demand an explanation from the IEP team if ESY is denied or send communications to the CSE and others within DOE. Parent has other means of establishing that ESY was denied, other than this request for an additional written document. Therefore, I will not order DOE to provide additional written explanation as to why DOE has denied the student ESY services, if applicable. DOE’s argument, that it should not be required to reconvene for a new IEP, as DOE had already conducted the IEP meeting on May 31, 2023 for the 2023-24 SY, is not valid. Parent filed the instant DPC on March 20, 2023. The DPC included relief of the APE assessment. At the time of the hearing and at the time of the writing of this decision, DOE had not verified that the APE assessment was conducted. DOE has not provided any evidence that that information was available when DOE was drafting the IEP for the 2023-24 SY on May 31, 2023. A new IEP may be necessary once that assessment is complete, in order to draft an appropriate IEP for the student.

Accordingly …

ORDER

Based upon the foregoing, it is hereby:

1. ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 SY;

2. ORDERED that DOE make direct payment to the private school in the amount of $94,487.18 for the student’s prorated tuition for the 10-month 2022-23 SY.

3. ORDERED that DOE shall provide the student with appropriate special education transportation to and from the private school for the entirety of the 2022-23 SY.

4. ORDERED that DOE shall reimburse the parent $132 for transportation costs incurred while bringing the student to and from school during the 2022-23 SY, within 30 days of this decision.

5. ORDERED that, insofar as DOE has not yet conducted the APE assessment agreed to in the partial resolution agreement, DOE must conduct an APE assessment, or in the alternative, a physical therapy evaluation conducted by a licensed physical therapist familiar with adapted physical education, within 30 days of this decision

6. ORDERED that the CSE is directed to convene a review meeting within 45 days of this decision to consider the findings and recommendations of the student's evaluations, including the APE, and if necessary, develop a new IEP for the student. The CSE must also review current evaluations, assessments, and data to establish the student's eligibility to receive special education services and/or programs during the ESY.

IT IS SO ORDERED.

Dated: August 2, 2023

BLUETH BROMFIELD

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Demand for Due Process Hearing, 03/20/23, 8 pgs.

B. Notice New IH Request Received No. 246808, 03/21/23, 1 pg.

C. Partial Resolution Agreement, 03/28/23, 2 pgs.

D. DOE Due Process Response No. 246808, 04/19/23, 3 pgs.

E. Individualized Education Program (IEP), 07/28/20, 20 pgs.

F. Final Notice of Recommendation, 09/15/21, 1 pg.

G. Individualized Education Program (IEP), 09/15/21, 19 pgs.

H. Individualized Education Program (IEP), 05/31/22, 18 pgs.

I. Neuropsychological Evaluation, 02/23/22, 5 pgs.

J. Neuropsychological Summary, 06/30/23, 6 pgs.

K. Preschool Student Turning Five Report, 12/15/21, 3 pgs.

L. Preschool Student Turning Five Progress Report, 01/07/22, 4 pgs.

M. Progress Report, 2022-2023 Q1, Cover letter, 11/30/22, 1 pg.

N. Progress Report, AYM 2022-2023 Q1, Educational, 11/18/22, 2 pgs.

O. Progress Report, AYM 2022-2023 Q1, Occupational Therapy, 11/18/22, 2 pgs.

P. Progress Report, AYM 2022-2023 Q1, Speech Therapy, 11/18/22, 2 pgs.

Q. Progress Report, 2022-2023 Q2, Cover letter, 02/23/23, 1 pg.

R. Progress Report, 2022-2023 Q2, Occupational Therapy, 01/31/23, 2 pgs.

S. Progress Report, 2022-2023 Q2, Speech Therapy, 01/31/23, 2 pgs.

T. Progress Report, 2022-2023 Q2, Education, 02/03/23, 5 pgs.

U. Annual Report and Quarterly Progress Report, Cover letter, 2022-2023 Q3, 05/02/23, 1 pg.

V. Progress Report, Speech Therapy, 2022-2023 Q3, 04/07/23, 2 pgs.

W. Progress Report, Occupational Therapy, 2022-2023 3Q, 04/09/23, 2 pgs.

X. Progress Report, Education, 2022-2023 3Q, 04/19/23, 2 pgs.

Y. Progress Report, Educational, 2022-2023, Q3, 04/21/23, 2 pgs.

Z. Annual Report, Speech Therapy, 2022-2023, 04/11/23, 3 pgs.

AA. Annual Report, Occupational Therapy, 2022-2023, 04/15/23, 3 pgs.

BB. Annual Report, Educational, 04/19/23, 11 pgs.

CC. Progress Report, 2022-2023 Q4 – Cover letter - Q4 and 2023-2024 Placement Letter 06/27/23, 1 pgs.

DD. Progress Report, Occupational Therapy, 2022-2023 Q4, 06/21/23, 2 pgs.

EE. Progress Report, Speech-Therapy, 2022-2023 Q4, 06/21/23, 2 pgs.

FF. Progress Report, Educational, 2022-2023 Q4, 06/22/23, 5 pgs.

GG. Enrollment Contract, 2022-2023, AYM, 09/0/22, 15 pgs.

HH. Class Schedule, 2022-2023 SY, AYM, 09/20/22, 1 pg.

II. Tuition Affidavit, AYM 2022-2023, 09/27/22, 1 pg.

JJ. Program Description, 2022-2023, AYM, Undated, 4 pgs.

KK. Program Overview, 2022-2023, AYM, Undated, 1 pg.

LL. Student Attendance Record, 2022-2023, 06/23/23, 1 pg.

MM. Email to DOE (REDACTED) with Neuropsychological Evaluation, 05/31/22, 1 pg.

NN. Prior Written Notice - Continued Eligibility for Special Education Services and Recommended Special Education Services, 06/01/22, 9 pgs.

OO. Prior Written Notice - School Location, 06/15/22, 4 pgs.

PP. REDACTED Academy, Website, 07/09/22, 5 pgs.

QQ. Email Parent to School replacement and program, 08/16/22, 1 pg.

RR. Power of Attorney, 08/22/22, 8 pgs.

SS. CSE Acknowledged - 10-Day Notice 2022-2023, 09/01/22, 1 pg.

TT. Email, Notice of Unilateral Placement for 2022-2023, 09/01/22, 1 pg.

UU. Notice of Unilateral Placement for 2022-2023, 09/01/22, 2 pgs.

VV. CSE Acknowledged – 10-Day Notice, 2022-2023, Corrected, 09/02/22, 2 pgs.

WW. Email to CSE Notice of Unilateral Placement, Corrected, 09/02/22, 2 pgs.

PARENT

XX. 10-day Notice, Corrected – Address, 09/02/22, 2 pgs.

YY. Determination Report, TDN 82409, No Settle, 09/22/22, 1 pg.

ZZ. Confirmation of Receipt of Parent's DPC, 2022-2023, 03/20/23, 1 pg. AAA. Medical Accommodations Request, Student's Physician, 04/23/23, 1 pg. BBB. Email Parent to DOE with Medical Accommodations Request, 05/03/23, 7 pgs.

CCC. Parent's explanation of transportation issues and costs, 06/12/23, 1 pg.

DDD. BACB Certificant Registry, REDACTED, BCBA-D, 03/30/23, 2 pgs. EEE. Teacher Certification, REDACTED, School Building Leader (SBL), 03/30/23, 4 pgs. FFF. License Verification, REDACTED, LBA, 03/30/23, 1 pg. GGG. REDACTED, curriculum vitae (CV), 03/28/23, 9 pgs. HHH. BACB Certificant Registry, REDACTED, BCBA, 03/30/23, 2 pgs.

III. License Verification, REDACTED, LBA, 03/30/23, 1 pg. JJJ. License Verification, REDACTED, 03/30/23, 1 pg. KKK. License Verification, REDACTED, OT.L., 03/30/23, 1 pg.

LLL. Dr. REDACTED, Biographic Summary, 06/23, 1 pg.

MMM. Affidavit, REDACTED, Parent, 06/29/23, 5 pgs. NNN. Affidavit, Dr. REDACTED, Head, Clinical Neuropsychology REDACTED, REDACTED, 06/30/23, 4 pgs.

IHO EXHIBITS

None

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.

Footnotes

[1] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (TR, (followed by a page number)).

[2] At the time of the hearing the social history update and classroom observations were completed but not the educational evaluation or APE assessment. Nor has there been any notice that they were completed as of the time of this decision.

[3] The witness’ report, conducted after the DPC was filed and shortly before the hearing date, was offered in to evidence as the author of the original neuropsychological evaluation, exhibit I, had retired and was unavailable for testimony.

[4] Diagnostic and Statistical Manual of Mental Disorders, Fifth edition.

[5] Tr – pg. 67 informed the parent of its intent to do an evaluation of the student but the parents did not make the child available for the evaluation or (3) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 20 U.S.C. 1412(a)(10)(C)(iii). Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014].