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FINDINGS OF FACT AND DECISION
Case Number: 249089 Student’s Name: [REDACTED] School District: N.Y.C. Dept. of Ed., District # [REDACTED] Impartial Hearing Officer: Roberta Wolf Date of Filing: 06/16/2023 Hearing Requested by: Parent Date of Hearing: 09/08/2023 Record Close Date: 09/22/2023 Date of Decision: 09/22/2023 Case No. 249089
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2023:
(DOE): — DOE
[REDACTED], Representative — DOE
[REDACTED], Representative — Student
[REDACTED], Director at the Private School — Student
BACKGROUND
On June 16, 2023, the Parents, by and through their attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 249089, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 (Section 504) of the Rehabilitation Act. 1 In the DPC, the Parents assert that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 12-month 2021-2022 school year when, inter alia, its Committee on Special Education (CSE) failed to conduct, secure, or rely on sufficient evaluative materials, which subsequently resulted in a substantively inappropriate and procedurally non-compliant individualized education plan (IEP). 2 The Parents further allege that DOE never provided them with a copy of the IEP before the beginning of the school year and to date, has never sent them a school placement to implement the IEP. 3 The Parents thereafter unilaterally placed the Student in the Private School and now seek tuition reimbursement. 4 I was appointed impartial hearing officer (IHO) on June 21, 2023; conducted prehearing conferences on July 17, 2023, and August 14, 2023; and adjudicated a due process hearing on September 8, 2023. The parties signed a pendency agreement, acknowledging the Private School as the Student’s current educational placement during the impartial hearing process. At the first prehearing conference, DOE moved to dismiss the Parents’ IDEA claim, arguing that it was time-barred by the two-year statute of limitation. The parties submitted legal briefs and 1 Ex. B. 2 Id. 3 Id. Id. The Parents withdrew a request for transportation expenses. Tr. p. 45 lines 17-20.
supporting evidence on July 26, 2023, and August 7, 2023, respectively. I denied DOE’s motion, finding that the Parents’ claim was not time-barred. [5]
At the hearing, DOE did not cross-examine the Parents’ affiant and relied on documentary evidence to establish that it provided the Student with a FAPE. DOE did not contest the appropriateness of the Parents’ unilateral placement at the Private School or argue that equitable considerations warranted a denial or reduction in relief.[6] The Parents’ disclosures were admitted into evidence without objection, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is [REDACTED] years old and his eligibility for special education and supports is not in dispute. He is classified by DOE with “Autism”[7] and presents with “significant vulnerabilities across all cognitive delays . . . consistent with his presentation of global delays and fluctuating attention.” 8 He functions at a pre-Kindergarten level for academics and below the first percentile when compared to same-age peers with respect to communication, daily living, and socialization skills.[9] He can pay attention when spoken to but becomes easily distracted. 10 He engages in hand-biting, repetitive and compulsive behaviors, stereotypy (fingers in ears), and visual stereotypy (feet watching). 11 He presents with vocal squeaks, hand flapping, and bouncing and rocking in his chair. 12 He cannot dress or bathe himself. 13 Although he can communicate verbally, he relies primarily on an augmentative and alternative communication (AAC) device. 14 He requires “intensive special education support” [15]
and “intensive one-to-one attention and reinforcement.”[16] He becomes easily agitated and dysregulated, which he expresses by crying and engaging in self-harming behavior (hand biting). 17 He often stares blankly and babbles to himself and tends to throw or break objects when angry. 18 The Student has a long history of receiving special education services, beginning with Applied Behavioral Analysis (ABA) therapy at 20 months, provided by the City’s Early
Implementation program. 19 He continued receiving services by DOE throughout preschool, followed by the CSE, which classified him with Autism in 2011.20 The Student began attending the Private School that same year, which provides him with one-to-one ABA instruction throughout the day, plus occupational and speech-language therapies (OT, SLT). 21 The Parents had the Student evaluated by neuropsychologists in 2013, 2016, and 2020, both of whom concluded that he required a full-time special education program that provided one-to-one ABA instruction such as the Private School.[22] During the 2020 evaluation, the neuropsychologist observed the Student noticeably and favorably respond to ABA instruction provided in an academic lesson at the Private School (e.g., focused attention, ability to match items correctly, accurately identify images, imitate a sentence on his AAC device, recognize sight words, remain calm, transition between tasks promptly). 23 The neuropsychologist concluded that a District 75 class – even with a ratio as small as 6:1:3 – could not provide the Student with
14 Ex. 4-2.
enough intensive one-to-one support to sufficiently meet his special education needs. 24
The CSE convened on April 20, 2021, to create the Student’s IEP for the 2021-2022 school year.[25] The Student’s Mother attended the meeting. 26 The CSE reviewed the 2020 neuropsychological evaluation and the Student’s academic and related service progress reports from the Private School.[27] The IEP relied entirely on the Parents’ documents to assess the Student’s current performance and academic, developmental, and functional needs.[28] The Student’s Mother voiced her concerns that the Student needed individualized ABA support. [29]
Nevertheless, the CSE recommended that the Student be placed in a 6:1+1 District 75 classroom with OT, SLT, and a paraprofessional for the extended, 12-month school year. [30]
DOE drafted both prior written notice of the CSE’s recommendations and an email with an attachment labelled, “[Student]_SLL.pdf.” on May 26, 2021. 31 The email is addressed to the Student’s Father and Mother; however, the Father’s email is noted as
“[firstname.lastname]@gmail.com,” whereas the Mother’s address appears with no spacing in her name “[firstnamelastname]@gmail.com.” 32
On June 17, 2021, the Parents notified the CSE by letter that they had not received a copy of the IEP or a school placement, and if the CSE did not provide those documents within 10 days, they would continue the Student’s unilateral placement at the Private School and seek public funding for tuition. 33 DOE acknowledged receipt of the notice but did not provide a substantive
24 Ex. D7.
response. 34
The Private School is a full-time special education school for students with autism who need a highly individualized ABA program and related services such as OT and SLT. 35 To create and implement an individualized plan for the Student, his lead teacher, ABA instructors, related-services therapists, Parents, and the Director of the Private School formally and informally assessed the Student, observed him in the classroom, and reviewed his progress reports from the prior school year. 36 They also met throughout the school year to modify his program as needed. 37 The Private School also conducted a functional behavioral assessment and developed a behavioral intervention plan to address problem behaviors. 38 The Student was placed in a classroom of seven students (including himself) with a lead teacher and six ABA instructors. 39
The Student was also provided with opportunities to interact with non-disabled peers and the larger community. 40 His lead teacher held a Master’s Degree in Professional Behavior Analysis and had prior special education teaching experience. 41 The Student showed signs of progress, as evidenced by school reports and the aforementioned observations of the neuropsychologist. 42
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services. 43 A FAPE is offered to a student when (a) the IEP developed by its CSE
34 Ex. 3. 35 Ex. Z. 36 Id. 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. 42 Ex. D, F, G, I, J, L, M, N, O, P, Q.
20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA. 44 For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the 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 educational benefits. 45 In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE. 46 DOE may be required to pay for educational services obtained for a student by his parents if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parents were appropriate; and (c) equitable considerations support the parents’ claim. 47
Prong 1 – FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 48
An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services. 49 “A reviewing court may fairly expect [DOE] to be
44 Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). 45
20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007). 46
20 U.S.C. § 1415(f)(3)(E)(i). 47 School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). 48 Rowley, 458 U.S. at 203.
See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; 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.” 50 Although DOE may sustain its burden based on documentary evidence alone, that evidence must convey, on its face, a cogent and responsive explanation for its decision that shows how the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.” 51
Here, DOE presented a copy of the IEP, prior written notice of the recommendations contained in the IEP, and an email containing an attachment, presumably a school location letter. As noted above, the IEP relied on the Parents’ evaluations and other documents to assess the Student’s performance and needs but then deviated from their uniform clinical recommendations for individual instruction and ABA therapy. The IEP and prior written notice provide no explanation for the CSE’s recommendations and state only that the CSE rejected a less restrictive program because it “would not provide adequate support.” 52 As a result and on this limited record, I do not find that DOE’s proffered documents, on their face, provide a cogent and responsive explanation for how the IEP is reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. Consequently, I find that DOE failed to offer the Student a FAPE for the 2021-2022 school year. 53
Prong 2 – Appropriateness of Unilateral Placement Established
Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. 50 Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). 51
Id. 52 Ex. 4-23. 53 I further find that the Parents’ Section 504 claim is subsumed by the above IDEA analysis. The Parents did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC, with respect to a denial of FAPE.
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that parents seeking tuition reimbursement for a unilateral placement in a private school setting have the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” 54
The Parents notified DOE on June 17, 2021, that without an IEP or school placement, they would continue the unilateral placement of the Student at the Private School for the subject school year. The Parents provided the Student’s daily class schedule, attendance record, progress reports, and goals; the Parents’ signed enrollment agreement; and the testimony of the Director of the Private School. The Private School provides full-time special education for children with autism like the Student who need intensive one-to-one instruction. Its students are taught in very small classes by instructors with Masters Degrees and ABA certification. The
Student showed signs of progress, as evidenced progress reports and the direct observations of the Student’s neuropsychologist. I find the Parents’ evidence to be comprehensive, consistent, and credible. I further find that the Parents established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parents
Although the hearing officer may deny parents tuition reimbursement for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing
54 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
to make the student available for an evaluation; or (c) failing to timely notify DOE of their intent to reject the proposed IEP and enroll the student in a private school at public expense, 55 no facts support such a finding in this case. DOE made no claim and provided no evidence that the Parents behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to the Parents’ proffer of a “Ten Day Notice of Intent” to continue the unilateral placement of the Student in the Private School and seek reimbursement.
The Parents’ enrollment contract shows that the Private School charged $164,780.00 for the 12-month, 2021-2022 school year, which the Parents paid in three installments. 56 I find that the equities favor the Parents and award reimbursement in full.
55
S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
Ex. T, U, V, X, Y.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that DOE shall reimburse the Parents for monies paid to the Private School for the Student’s placement during the 12-month, 2021-2022 school year in a sum not to exceed $164,780.00. (One Hundred Sixty-Four Thousand, Seven-
Hundred Eighty Dollars). SO ORDERED. DATED: September 22, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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.
DISTRICT EVIDENCE
Exhibit Title Date Pages
1 DPC 249089 6/16/2023 5
2 Ten Day Notice 6/17/2021 2 3 TDN Determination 7/8/2021 1 4 Individualized Education Program 4/20/2021 24 5 Prior Written Notice 5/26/2021 11 6 Email from [REDACTED] to Parent 5/26/2021 1
PARENT EVIDENCE
Exhibit Title Date Pages A Notice of Intention to Unilaterally Place 6/17/2021 2 B Impartial Hearing Request 6/16/2023 5 C /1/2022 12 D Psychological Update -various- 9 E 2021-2022 Classroom Goals -undated- 5 F Educational Progress Report December 2021 5 G Educational Progress Report June 2022 6 H 2021-2022 Occupational Therapy Goals -undated- 2 I Occupational Therapy Progress Report December 2021 4 J Occupational Therapy Progress Report June 2022 5 K 2021-2022 Speech and Language Goals -undated- 2 L Speech and Language Therapy Progress Report December 2021 7 M Speech and Language Therapy Progress Report June 2022 7 N Educational Progress Report December 2020 7 O Occupational Therapy Progress Report December 2020 4 P Speech and Language Therapy Progress Report December 2020 6 Q Functional Behavior Assessment December 2021 8 R Daily Schedule 2021-2022 -undated- 1 S Attendance Record 6/29/2022 1 T Enrollment Agreement 7/7/2021 5 U Enrollment Agreement – [REDACTED] 12/15/2021 2 V Financial Affidavit 6/14/2022 1 W Withdrawn X Proof of Payment 5/21/2021 2 Y Proof of Payment 3/7/2022 2 Z Affidavit of [REDACTED] 08/28/2023 8
Footnotes
[5] DOE’s brief also challenged the sufficiency of the Parents’ 504 claim; however, I did not address that issue because it fell outside of the scope of DOE’s stated motion to dismiss.
[6] Tr. p. 49 lines 21-25, p. 50 lines 1-9.
[7] Ex. 4-1. 8 Id.
[9] Ex. 4-2. 10 Id. 11 Id. 12 Ex. D3. Id.
[15] Ex. 4-3.
[16] Ex. 4-1. 17 Ex. D3. 18 Id. 19 Ex. D2. 20 Id. 21 Id.
[22] Ex. D. The same neuropsychologist evaluated the Student in 2013 and 2020. Id. Ex. D4.
[25] Ex. 4-23. 26 Id.
[27] Ex. 5-2. The CSE also reviewed a psychoeducational assessment, but DOE did not provide that document at the hearing.
[28] Ex. 4-2.
[29] Ex. 4-23.
[30] Ex. 4-19, 4-20. 31 Ex. 5, 6. 32 Ex. 6. Ex. 2.