Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 250510

NYS Case Identifier Number: N/A Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested by: Parent

Date of Hearing: 8/16/23

9/21/23

10/2/23 Record Close: 10/27/23

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 16, 2023

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2023

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 2, 2023

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Ph.D., Director of Finance, [REDACTED]

[REDACTED], M.Ed., Educational Director, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] ([REDACTED]) is a [REDACTED]-year-old student whose parents [REDACTED], parents or parent) have filed a due process complaint notice (DPCN, or hearing request) claiming that the DOE failed to provide [REDACTED] with a free appropriate public education (FAPE). Among the relief being requested was direct payment of tuition at [REDACTED] for the 2023-2024 school year and transportation. Ex. A.

The hearing was held on August 16, September 21, and October 2, 2023. Extensions were issued in compliance with state regulations, resulting in a compliance date of November 17, 2023.

POSITIONS OF THE PARTIES

The DPCN cited multiple claims, arguing that the district has failed to provide [REDACTED] a free appropriate public education for the 2023-2024 school year, stating that the IEP developed by the district deferred the child for placement in an approved therapeutic nonpublic school but was unable to provide a placement. Ex. A.

At hearing on August 16, 2023, the district representative stated that he would be defending that the district provided the child with a FAPE. He stated there was no dispute on Prong 2 (citing the Burlington-Carter analysis governing unilateral placement decisions), stating that the school was an approved school that the district has dealt with in the past. He also stated there was no position on Prong 3.

According to the parent attorney, the last IEP was in November of 2022. At that time the child had been referred for placement in an approved nonpublic school and no placement was ever located and no subsequent meeting was ever held. However, that IEP designated [REDACTED] as a 12-month student with specialized transportation. She stated that the 12-month tuition is $143,000.^[1] The district representative stated there had been both an IEP and a school placement. The parent attorney repeated that the last IEP was in November of 2022, and that year has come and gone and has been determined already that the district did not afford a FAPE.

At hearing on September 21, 2023, the parent attorney noted an error in the due process complaint on page 2, which stated that the district met with the parent to develop an IEP for the 2023-2024 school year. She acknowledged her mistake, offering the parent’s testimony that there had been no meeting. [REDACTED] confirmed under oath that the last meeting with the district to develop an IEP for [REDACTED] was November of 2022. ^[2]

At hearing on September 21, 2023, the district’s representative stated that the district was not presenting a case and would be offering no documents.

FINDINGS OF FACT

[REDACTED] is a [REDACTED] -year-old child. [REDACTED] explained that [REDACTED] was diagnosed with OCD, anxiety, and dyslexia which interferes with her ability to be a student. She explained that [REDACTED] has thoughts of harming herself, thoughts that happen multiple times during the day. [REDACTED] stated that the public school couldn’t handle her. When she was in 5th grade, the family got multiple phone calls saying that she was having panic attacks and not doing well, and the parent was asked to come and pick her up. With 10 panic attacks in an hour, she could not adjust to school.

She stated that she placed [REDACTED] in [REDACTED] for the 2023-2024 school year because the neuropsychologist recommended that she attend a therapeutic school and because she has shown some progress in a therapeutic setting. According to [REDACTED], [REDACTED] provides a therapeutic setting with a licensed PhD who specializes in her disorder and the school, as detailed later in this decision. and sees her weekly. She has art therapy, music therapy, group therapy, and support on demand; when she is having a difficult time she can seek out support from her licensed clinician. She is in a small class size no more than 10 children, with much scaffolding in place to support her throughout the day.

When she began at [REDACTED] [REDACTED] was functioning at a 3rd grade reading level although she was in grade at the time; she is currently reading on grade level. There is also a reading specialist to his work with her since she entered, who specializes in dyslexia, which is why she is reading currently on an 8th grade level. She has a 90 average, the panic attacks have stopped, as has school refusal, and her confidence has grown. She is part of a mentorship program where she met his children was struggling like herself, and she is no longer an active crisis. [REDACTED] stated that the licensed clinician does a safety assessment risk to see if [REDACTED] is in active suicidal crisis, and if so [REDACTED] would have to take her to the hospital, but she has been stable and she hasn’t had to do so in a year and a half. They help her with coping skills, giving her a toolkit that she brings home and practices using to keep her grounded. She mostly deals with [REDACTED] who is a licensed clinician, working directly with [REDACTED] and in family sessions, as well as with her outside therapist. [REDACTED] goes to school year-round, because any type of break in school courses had to go into crisis. She takes a school bus to school and back. [REDACTED] stated that her daughter has struggled and it is been a struggle for the family, she has REDACTED. Tr. 43-61. [REDACTED] identified the ten-day letter that was sent on her behalf, confirming that there was a mistake in the letters stating that she had met with the district to develop an IEP. She confirmed that there was no response to the ten-day letter from the district. Ex, B. Tr. 51-52. [REDACTED]. [REDACTED], Director of Education at [REDACTED], described [REDACTED] as a child diagnosed with OCD, dyslexia, and anxiety. He stated that her anxiety can be triggered by academic work, with anxiety triggers sometimes shutting her down and preventing her from learning. Her OCD can also get in the way of her functioning to her full potential.

He explained that [REDACTED] is a K-12 therapeutic school, noting a student profile of students diagnosed with ADHD, on the autism spectrum, and with emotional dysregulation. There are currently with 53 to 55 students; in the past summer there were 12 to 15 students. All teachers in the lower middle school are certified or have degrees in general education or special education. The school has teachers trained to work with children with higher-level clinical needs, as well as a clinical staff including five licensed psychologists and social workers, and 8 to 10 clinical externs doing training with the school, to provide therapy and clinical support throughout the school day. Ex. K.

The middle school, grades 6 to 8, has a total of approximately 18 to 20 students. [REDACTED] in grade 8, with 6 to 8 students in the class. The school provides intensive support throughout the school day, teaming her up with the individual clinician who provides cognitive behavioral therapy at least once a week. She also participates in a group therapy session led by another lead clinician. In addition, she has access to the on-call clinical support throughout the day. [REDACTED] attended the summer session in 2023, which ran for six weeks, four days a week Monday through Thursday, with fewer students. For her, the extended school year provides continued structure and clinical support to prevent a learning loss that might occur. [REDACTED] testified at length about her schedule, noting her therapy on Monday with [REDACTED], a lead clinician with a Psy.D. and a licensed psychologist. She also has RTI with [REDACTED], a special education teacher with an endorsement in literacy who works directly with the child one-on-one to target some of her reading and writing areas of need. In her ELA classes she is working at 7th and 8th grade level. Art therapy, speech therapy, and all her core classes are taught by a lead teacher with a teaching assistant. [REDACTED] also works with [REDACTED], a speech pathologist, who has a Masters in speech language, working on her processing information more effectively and building a vocabulary to a higher level. [REDACTED] testified that [REDACTED] has been doing very well both academically and clinically. Her teachers have had very positive things to say about her from a clinical perspective: she had been participating in therapy, and has not had to leave school or class because any kind of anxiety or episode. In the summer term, it was the same thing; she did well academically and would socialize with the other students. He said that she is not ready as yet to go to a non-therapeutic school, noting it the high level of support she had had while at [REDACTED] that has allowed her to do well. Tr. 91-124.

Tuition fees. [REDACTED] first stated that the total tuition for academics for the school year was $143,000, and $500 enrollment deposit. Tr. 52-53; Ex. D. She identified another exhibit also as a tuition agreement summary report, stating that she has a payment plan fee, although it was unclear what the payment plan was. She stated that she had paid $1444.44 thus far, and went on to say that it was a 12-month contract for $164,883.33. She said that the previous document was only for 10 months, and she had to remind them that [REDACTED] was a 12-month student. [REDACTED] confirmed that [REDACTED] attended [REDACTED] for that summer term. Tr. 52-56, 73-77; Exs. E, F, O. [REDACTED], Director of Finance at [REDACTED], identified his affidavit Exhibit F, stating that the balance of $163.911.11 was the amount due for [REDACTED]’s schooling at [REDACTED]. He confirmed that it was a 12-month enrollment and tuition contract, an agreement for the 12-month program and for the educational services at $143,000 and summer for $19,933.33. He also said that the headnote of the tuition agreement summary report which said fall 2023 to spring 2024 was an error from the school’s enrollment and tuition specialist who put together the contract. Tr. 84-89; Exs. D, E, F. In fact, the affidavit specifically states that the total contracted tuition rate is $164,883.33, with a $500 deposit on March 14, 2022 and a $472.22 automatic bank account payment on August 4, 2022 making a balance due of $163, 911.11. Ex. F.

CONCLUSIONS OF LAW

The decision in this case addresses the challenge to the district’s actions and request for tuition for [REDACTED]’s placement at [REDACTED] in 2023-2024. The decision rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

As noted above, the district representative retreated from his initial position of defending the case and stated that the district would not be presenting case. The representative had earlier indicated no objection on Prong 2 and 3. Nevertheless, the decision requires examination of the child’s placement at [REDACTED] for a determination concerning the appropriateness of the placement.

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED] ’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parent has sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED].

I credit the testimony of the school’s director [REDACTED], describing the intensive support provided [REDACTED], including the individual clinician, group therapy, and access to the on-call clinical support. I also credit her mother’s testimony about the improvement in her reading, the cessation of panic attacks and school refusal, and her increased confidence, and her participation in activities and the fact that she is no longer in active crisis.

For the reasons noted above, I find that [REDACTED] provided a program for [REDACTED] designed to meet her special education needs in the 2022-2023 school year.

In terms of rate, I note the tuition for the child’s 12-month school year as reflected in Exhibit O, at $164,883.33. The payments by the parent of $500 and $472 could entitle her to reimbursement but she also said she had paid $1,444.44 thus far. In fact, there may have been more payments under the “automatic payment plan,” although other than [REDACTED] stating she was paying monthly there was no evidence specifying additional payments. Under the circumstances, I will order reimbursement to the parent of whatever she has paid, with proof of payment, and the remainder paid directly to [REDACTED].

Additional claims

The request for transportation was undisputed, and the district representative offered no position during hearing. Transportation will be included in the order for the child.

ORDER

1. The DOE shall provide funding for [REDACTED]’s tuition at [REDACTED] for the 12-month 2023-2024 school year at a rate not to exceed $164,883.33, to be distributed as follows:

a. The DOE shall reimburse the parent for payment towards [REDACTED]’s tuition at [REDACTED] for the 2022-2023 school year, upon submission of proof of payment by the parent.

b. The DOE shall pay the balance due to the school for [REDACTED]’s tuition directly.

2. The DOE shall provide appropriate transportation for [REDACTED] to and from [REDACTED].

IT IS SO ORDERED. Issued: November 8, 2023

__Nancy M. Lederman_______

NANCY M. LEDERMAN

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Impartial hearing request, 7/5/23, 4 pages

B. Ten-day notice, 6/16/23, 2 pages

C. Decision in case 217318, 12/16/21 27 pages

D. School contract, 2/2/23, 4 pages

E. Tuition agreement, 2/24/23, 3 pages

F. Affidavit of payment and proof of payment, 7/28/23, 4 pages

G. Letter, [REDACTED], 7/18/23, 1 page

H. 2022 tax documentation of parents, undated 6 pages

I. Academic reports, 07/2023 6 pages

J. Proof of payment, 8/2023, 2 pages

K. Program description, undated, 4 pages

L. IEP, 4/27/22, 36 pages

M. schedule, 2023, undated, 1 page Summer

N. Full schedule, 2023-2024, undated, 1 page

O. Updated tuition agreement, 2/24/23, 4 pages

Footnotes

[1] The actual cost of the program was the subject of confusion and explanation from the parent

[2] The November 2022 IEP was never entered into evidence. Asked for the IEP on September 21, 2023, the parent attorney stated that they didn’t have it, that the last one she had was from May 3, 2022. The district representative promised to send the November 2022 IEP, but didn’t.