Impartial Hearing Decision

[REDACTED] FINDINGS OF FACT DECISION AND ORDER

Case Number 249685

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: August 8, 2023 (PHC), September 8, 2023, October 10, 2023, October 24, 2023

Hearing Officer: Rona Feinberg, Esq.

Actual Record Close Date: November 27, 2023

PERSONS WHO PARTICIPATED

August 8, 2023 [REDACTED], Esq. Attorney Parent (Remote) [REDACTED] PC

September 8, 2023 [REDACTED], Esq. Attorney Parent (Remote) [REDACTED] PC

October 10, 2023 [REDACTED], Esq. Attorney Parent (Remote) [REDACTED] PC

October 24, 2023 [REDACTED], Esq. Attorney Parent (Remote) [REDACTED] PC [REDACTED] Consultant Hearing Representative Department of (Remote) Education [REDACTED] Parent (Remote) Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

On August 8, 2023, and September 8, 2023, October 10, 2023, and October 24, 2023, I held an Impartial Hearing in this case pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, [REDACTED] (“the student”). The hearings were held remotely.

BACKGROUND

The student is [REDACTED]-old and is classified as having a Learning Disability. For the 2022-2023 school-year she was unilaterally placed at the [REDACTED] Elementary School (“[REDACTED]”).

In a Demand for Due Process Hearing (“DPC”) filed on June 30, 2023, the parent, by her attorney [REDACTED], Esq., of [REDACTED], P.C., alleged that for various reasons the Department of Education failed to provide the student with a Free and Appropriate Education (“FAPE”) for the 2022-2023 school-year (Parent’s Ex. A at 2-5). The parent asked, in relevant part, for an Order directing the Department of Education to reimburse/directly fund the tuition, costs, and expenses of the student’s special education program at [REDACTED], including a 1:1 paraprofessional (Parents’ Ex. A at 6).

I was assigned as Impartial Hearing Officer on July 5, 2023. At that time, the compliance date was September 13, 2023. I granted three extensions of the compliance date, two at the request of Ms. [REDACTED] when the Department of Education did not appear, and one following the hearing at the request of both parties. The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the case was filed after the completion of the 2022-2023 school-year; (b) after the Department of Education failed to appear at the Pre-Hearing Conference and two subsequent status conferences, the parents were entitled to time to secure witnesses, to hold a hearing and to have this hearing officer review the transcript and evidence and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the student’s education.

THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

The remaining issues in the case are: 1) whether the Department of Education deprived the student of a FAPE for the 2022-2023 school-year, and if so; 2) whether [REDACTED] provided the student with an appropriate education that year, and if so; 3) whether the equities favor the parent or the Department of Education.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Point I

The Department of Education’s Case [REDACTED], the Department of Education Consultant Hearing Representative who appeared at the hearing, conceded that the Department of Education failed to provide the student with a FAPE for the 2022-2023 school-year. He did not present an opening or closing statement, and did not cross-examine the parent’s witnesses (TR: 22-24, 26-27).

Therefore, I find that the Department of Education failed to meet its burden of demonstrating that it provided the student with a FAPE for the 2022-2023 school-year.

Point II

The Parent’s Case

Findings of Fact

The parent testified by Affirmation (Parent’s Ex. N). [REDACTED], the Principal of [REDACTED], appeared via Affidavit^[1] (Parent’s Ex. M). Both witnesses were available at the hearing but, as noted, Mr. [REDACTED] did not call either of them for cross-examination (TR: 26-27).

The student is diagnosed with ADHD and likely ASD. She is easily distracted and does not stay on task. The student cannot concentrate or sit for long periods in a classroom, and is behind in academics. She has a lisp and articulation issues that affect her speech and communication. The student is easily frustrated and has destructive and aggressive behavioral issues. In a school setting she threw items, hit other students, and ran out of class (Parent’s Ex. J at 3, N at 1-2).

Prior to entering [REDACTED], the student attended an Integrated Co-Teaching Class at [REDACTED] ("[REDACTED]"), as per the Department of Education recommendation. There, she received SETSS, counseling, and occupational therapy. The student did not do well at the school. She had outbursts that became violent, and ate and chewed various items in the classroom. The student was unable to complete h e r work because she could not sit and focus in class. The school staff told the parents to obtain a psychiatric evaluation and to find a different school for the student, as her behaviors continued to deteriorate (Parents’ Ex. N at 1).

In December 2021, the parents took the student to a psychiatrist, [REDACTED], M.D., (Parents’ Exs. J, N at 2). Dr. [REDACTED]’s report, which appears to be based on intake information from the parents and the student’s therapist, states, among other things, that the student “likely” has Autism Spectrum Disorder (“ASD”), “needs a smaller school,” and would “benefit from ABA therapy” (Parents’ Ex. J at 3).

The parents placed the student at [REDACTED] in January 2022 (Parents’ Ex. N at 2). [REDACTED] is a small special education program for students ages 5 through 14 who require small classes, intensive teaching, individual supports, and differentiated instruction. For the 2022-2023 school year there were 22 students enrolled in the school. [REDACTED] has been the principal of the school since the 2022-2023 school-year (Parents’ Ex. M at 1-2). [REDACTED] employs special education teachers, classroom assistants, speech therapists, occupational therapists, physical therapists, counselors, and paraprofessionals. The school also has a reading specialist curriculum coach and a math coach on staff , who observe students, suggest modifications to curriculum, and help develop highly individualized programs. At the start of the school year the school staff had multiple days of professional development, and there were approximately five or six trainings/professional development days throughout the school year. The math and reading coaches provided additional training as needed (Parents’ Ex. M at 2).

Ms. [REDACTED] is familiar with the student. She described the student as a sweet girl with a lot of challenges who presents with academic delays. At the beginning of the 2022-2023 school year the student was eight years ten months old. She was placed in fourth/fifth grade class with five other students who were between the ages of eight and ten. All of the students in the class had similar learning styles and worked at a similar pace. The head teacher, [REDACTED], has a Master's degree in special education and is New York State licensed and certified in special education. The class also included a teaching assistant who was working toward a Master's degree in special education (Parents’ Ex. M at 3). During the 2022-2023 school year, Ms. [REDACTED] observed the student’s classroom, participated in team meetings to discuss her program in depth, and regularly communicated with her teacher, paraprofessional, related service therapists, and parents (Parents’ Ex. M at 3).

At the start of the 2022-2023 school year the student performed on a kindergarten level in reading and a first grade level in math. She had trouble focusing, a short attention span, and difficulty following directions, and learning in large groups. She benefitted from one to one support. In addition, the student had maladaptive behaviors that seriously interfered with her instruction. At times she was aggressive and would throw chairs and classroom materials, run around the room, throw herself on the floor, and tantrum. She was also noncompliant and would refuse to engage in classroom work. To address these behaviors, the BCBA at the school developed a behavior plan (“BIP”) for the student and the school provided the student with a full-time 1:1 paraprofessional to help manage her behavioral concerns.^[2] The school developed individualized goals for the student based on her skill deficits in reading, ELA, math, science, social studies, counseling, speech/language therapy and occupational therapy (Parents’ Exs. G, H, M at 2-4).

All of the teachers, paraprofessionals, and therapists who worked with the student were trained to implement the BIP, which included proactive strategies to keep the student engaged in her lessons and prevent off-task disruptive behaviors. The student earned money throughout the day for good behavior and completing tasks, which she was able to cash in for a variety of rewards. The BIP included appropriate reactive strategies when the student did engage in disruptive or dangerous behaviors. For example, she would be removed from class and staff followed a procedure of calming techniques. She also would lose rewards for continuous and repeated maladaptive behaviors. The staff and the BCBA often reviewed and adjusted the student’s BIP as needed (Parents’ Ex. M at 3-4).

Due to the student’s aggressive behavior towards teachers and peers, herself and property, as well as her social emotional needs such as lack of self-esteem, the student engaged in [REDACTED] with the [REDACTED] BCBA. The BCBA met with both the student’s teacher and paraprofessional to review how to implement the student’s BIP (Parent’s Ex. M at 4).

In November 2022, the student experienced serious dysregulation and unsafe behavior at school, and she remained at home for a period of time. During that interval, [REDACTED] collaborated with the student’s parents to help get her behaviors under control. The school sent home packets of work so the student would not fall behind. When the student returned to school, her consultation sessions with the school BCBA were increased. Everyone who worked with the student received extra support and training on implementing the student’s BIP. The student improved as the year went on, and her behaviors became more manageable with the increased BCBA support (Parents’ Ex. M at 5).

To address the student's learning delays and difficulty with attending, her teacher and paraprofessional provided her with a significant amount of one-to-one instruction and instruction in a dyad. Following each class instruction in math and reading, the student had an opportunity to work one-on-one with a teacher or paraprofessional to reinforce the lesson and focus on her specific delays. The student also received related services geared toward her needs and individualized goals for the school year (Parent’s Ex. M at 3, 5).

The student used a visual schedule to manage her expectations for the day, and her teacher and paraprofessional provided positive reinforcement for completing tasks. The student was permitted to take breaks as needed. Ms. [REDACTED] testified that overall, the BIP was effective for the student. As the year progressed the student was receptive to positive reinforcement, and her disruptive and aggressive behaviors diminished. When her behaviors were managed, the student was able to come to class and work on academics (Parents’ Ex. M at 4).

Ms. [REDACTED] described the student’s school day, and detailed her instruction, participation, and progress in math, reading, English language arts, literacy, social studies, and science. The student also had gym and classes in music, art, and Activities of Daily Living (“ADL) (Parents’ Ex. M at 5-8). The student also took a course in [REDACTED]. Ms. [REDACTED] characterized the course is secular and complementary to the Wilson Reading System used in the student’s reading class (Parents’ Ex. M at 5-7).

The student received individual speech/language therapy with a licensed speech and language pathologist. Her communication difficulties include comprehension delays and pragmatic language delays. She required prompting and redirection at times when she became unfocused and distracted. During the 2022-2023 school year the student progressed in summarizing the main idea of a story, answering questions about a story with details, increasing her verbal reasoning, and comparing and contrasting items. She received individual occupational therapy with a licensed occupational therapist. They worked on fine motor activities and visual motor exercises. The therapist implemented a protocol to regulate the student that included yoga, rhythmic movement, and exercise. The program helped the student with regulation, which in turn made it easier or her to focus in the classroom. By the end of the 2022-2023 school-year the student improved her handwriting, motor planning, visual perceptual abilities, and self-regulation (Parents’ Ex. M at 5-6).

The student received both individual and group counseling with the [REDACTED] social worker. During those sessions she worked on coping strategies, managing frustration tolerance, complying with school rules and routines, and interpersonal relationships with peers, all highly challenging areas for the student, as when she became dysregulated she was destructive and aggressive. Over the course of the year, the student improved her awareness of her surroundings, followed class rules, and had positive interactions with her peers, including making friendships with some of the girls in her class (Parents’ Ex. M at 8).

[REDACTED] provided the student with opportunities to interact with typically developing peers from a neighboring school. Students from the neighboring general education schools came to [REDACTED] approximately once pe month, and the student took trips to a general education school as well. The student engaged in “meet and greet,” worked on communication skills, talked about areas of interest and engaged in a gross motor activity or game, thereby giving the student an opportunity to work on her communication and social skill deficits (Parents’ Ex. M at 8).

The [REDACTED] staff maintained consistent communication with the student's parents throughout the school year. The parents were open and receptive to suggestions we made and were actively involved with her education (Parents’ Ex. M at 9, N at 2). The teachers and related service providers tracked the student’s progress throughout the year, and issued Fall and Spring report cards for the student (Parents’ Exs. E, F, M at 8).

Ms. [REDACTED] believes that the student was appropriately placed at [REDACTED] during the 2022-2023 school year. She noted that the school provided the student with an individualized program to address all of her needs. For example, the student received individual academic support, a small supportive class environment with similar peers, much needed 1: 1 behavioral support and a BIP. The student made steady progress in academics, social skills, behavioral skills, language, and motor skills, and by the end of the 2022-2023 school year the student became a child who could learn and participate in classroom instruction (Parents’ Ex. M at 3, 9). Ms. [REDACTED]’s testimony was supported by the student’s Fall and Spring Report Cards (Parents’ Exs. E, F). The student’s parent attested to the student’s progress at well (Parents’ Ex. N at 2).

The [REDACTED] portion of the student’s program was comprised of daily 15-minute [REDACTED] sessions and 30-minute [REDACTED] classes four days per week, comprising approximately 9.5% of the weekly schedule (Parents’ Exs. C, M at 8).

The cost of tuition for the 2022-2023 school-year, including the 1:1 paraprofessional and BCBA counseling services, was $130,250.00 (Parent’s Exs. B, C at 1). As of June 30, 2023, the parents had paid $1650.00 to the school (Parent’s Ex. C at 1).

Conclusions of Law

Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that they obtained for the student for the school year in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053.

In order to meet that burden, the parents must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education 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. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents 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” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G. v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).

No one factor is dispositive of determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at 105.

***

Based on the credible evidence submitted by the parent at the hearing, as detailed above and not repeated here, the parent established that [REDACTED] provided the student with educational instruction specially designed to meet her unique needs during the 2022-2023 schoolyear. Endrew F. v. Douglas County School District, 580 U.S. __, 137 S.Ct. 988, 1000-1002 197 L.Ed.2d 335 (2017). I also find that the instruction was supported by such services as were necessary to permit the student to benefit from instruction. See Endrew F., 137 S. Ct. at 1000-1002; Rowley, 458 U.S. at 188-189, 207. In addition, I credit Ms. [REDACTED]’s testimony regarding the student’s absences due to her behaviors during November 2022, and find that [REDACTED] provided the student with educational services during that time (Parents’ Ex. M at 4-5). Indeed, Mr. [REDACTED], the Consultant Hearing Representative for the District who appeared at the hearing, did not argue otherwise.

Thus, I find that the parent has met her burden of demonstrating that [REDACTED] provided the student with an appropriate education for the 2022-2023 school-year.

Point III

Equities

The IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.

There is no evidence that the parent failed to cooperate with the Department of Education in any way in relation to the 2022-2023 school-year and the Department of Education does not contend otherwise.

In a 10-Day Notice letter dated June 21, 2022, the student’s father informed [REDACTED], the Chairperson of CSE 7, that he had concerns about the 12:1:1 program recommended for the student. He explained that the student displayed many of disruptive and interfering behaviors in school including throwing chairs, aggression, and eating dangerous items like nails, and his belief that she would not be supported in a 12:1: 1 special class which lacks the structure and one-one-one attention she needs. The parent also noted that when he visited the school recommended for the student, the parent coordinator told him that the student would be in a 12:1:1 c l a s s only for four core academic subjects, and then transition to a larger general education class for other subjects, a situation that would be entirely inappropriate for the student. The parent also delineated the reasons that he believed the IEP developed at the March 24, 2022, meeting would not meet the student’s needs (Parents’ Ex. K).

The parent advised Ms. [REDACTED] that he would consider other recommendations for the student, but that absent an appropriate option, the parents intended to send that student to [REDACTED] for the 2022-2023 school year and seek tuition, costs, and expenses, including for a 1: 1 paraprofessional, from the Department of Education. There is no evidence that the Department of Education responded to the letter.

The parent signed a contract to pay for the tuition and for the 1:1 paraprofessional, and he acknowledged the parents’ obligation to pay the balance of the tuition if they were unsuccessful at the hearing (Parents’ Exs. B at 1-2, N at 3).

Based on the foregoing, I find that the equities in the case favor the parent.

The reimbursement/payment of the student’s tuition of $130,250.00 shall be reduced by $12,373.76, or, 9.5% of the total tuition, based on the percentage of the school week dedicated to [REDACTED] instruction (34 hours 15 minutes in the total school week minus 3 hours 15 minutes of [REDACTED] and [REDACTED] classes), for a total reimbursement/payment of $117,876.25.

ORDER

It is hereby Ordered that:

1) The parent is to provide the Department of Education with proof of the student’s attendance at [REDACTED] during the 2022-2023 school-year, evidence of the student’s [REDACTED] tuition cost including related services, a 1:1 paraprofessional, and [REDACTED], and proof of any monies paid to the school; and

2) Within 30 days of the receipt of the information in (1) above, the Department of Education is to reimburse the parent for monies paid, and pay the balance of the tuition costs directly to [REDACTED]. The total amount to be paid to [REDACTED] shall not exceed $117,876.25

Dated: December 5, 2023

Rona Feinberg

Rona Feinberg, Esq.

Impartial Hearing Office

EXHIBITS

EX. DEPARTMENT OF EDUCATION: The Department of Education did not enter any documents into evidence. PARENTS: DATE DOCUMENT PAGES

P-A. Demand for Due Process 06 Pages June 30, 2023

P-B. [REDACTED] Tuition Contract and 02 Page Addendum September 15, 2022

P-C. Tuition Affidavit and Proof of Payment 21 Pages September 14, 2023

P-D. [REDACTED] Class Schedule 01 Page 2022-2023

P-E. Student Report Card 02 Pages [REDACTED] Fall 2022

P-F. Student Report Card 02 Pages [REDACTED] Spring 2023

P-G. September 2022 Behavior Plan By: [REDACTED], School BCBA [REDACTED] 04 pages

P-H. Update to Behavior Plan 04 Pages By: [REDACTED], School BCBA [REDACTED] May 2023

P-I. Attendance Record 01 Page September 12, 2023

P-J. December 21. 2021 Psychiatric History and Exam By: [REDACTED], MD 03 pages

P-K. Letter to the Department of Education 03 Pages from [REDACTED] (with fax confirmation) HEARING OFFICER: The Impartial Hearing Officer did not enter any documents into evidence. June 21, 2022

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 athttp://www.sro.nysed.gov.

Footnotes

[1] Ms. REDACTED has a Master's degree in special education and general education. She is New York State licensed and certified in both disciplines (Parents’ Ex. M at 1).

[2] At the start of the school year the student’s 1:1 paraprofessional was working towards a Bachelor's degree in education. She received training at the start of the school year from the [REDACTED] BCBA, and they met throughout the year to review the student’s behavior plan and go over anything pertaining to the student’s needs. In May 2023, the student’s paraprofessional left [REDACTED]. From May 2023 until June 2023, the student’s new 1:1 paraprofessional also was working towards a Bachelor's degree in education (Parents’ Ex. M at 3).