Impartial Hearing Decision

[REDACTED] FINDINGS OF FACT DECISION AND ORDER

Case Number 250366

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parents

Dates of Hearing: August 16, 2023 (PHC), September 18, 2023, October 11, 2023, November 9, 2023

Hearing Officer: Rona Feinberg, Esq.

Actual Record Close Date: December 7, 2023

PERSONS WHO PARTICIPATED

August 16, 2023 [REDACTED] Paralegal Parents (Remote) [REDACTED] [REDACTED]. Consultant Hearing Department of (Remote) Representative Education

September 18, 2023 [REDACTED] Paralegal Parents (Remote) [REDACTED] [REDACTED]. Consultant Hearing Department of (Remote) Representative Education

October 11, 2023 [REDACTED] Paralegal Parents (Remote) [REDACTED] [REDACTED]. Consultant Hearing Department of (Remote) Representative Education

November 9, 2023 [REDACTED], Esq. Attorney Parents (Remote) [REDACTED] [REDACTED], Esq. Consultant Hearing Department of (Remote) Representative Education [REDACTED] Parent (Remote) [REDACTED] Program Director, Parents (Remote) [REDACTED] School Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

On August 16, 2023, September 18, 2023, October 11, 2023, and November 9, 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] years-old and is classified as having Autism. For the 2023-2024 school-year he is unilaterally placed at the [REDACTED] (“[REDACTED]”).

In a Request for a Due Process Hearing (“DPC”) filed on July 5, 2023, the parents, by their attorney [REDACTED], Esq., of [REDACTED], P.L.L.C., alleged that for various reasons the Department of Education failed to provide the student with a Free and Appropriate Education (“FAPE”) for the 2023-2024 school-year (Parents’s Ex. A at 2-9). The parents asked, in relevant part, for an Order directing the Department of Education to reimburse/directly fund the tuition, related costs, and fees, of the student’s special education program at [REDACTED]^[1] (Parents’ Ex. A at 6).

I was assigned as Impartial Hearing Officer on July 10, 2023. At that time, the compliance date was September 18, 2023. I granted three extensions of the compliance date 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 student was attending the program desired by the parents; (b) once the Department of Education advised the parents that there was no basis upon which to refer the case for settlement, 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 is providing the student of a FAPE for the 2023-2024 school-year, and if not; 2) whether the parents demonstrated that [REDACTED] is providing the student with an appropriate education, and if so;

3) whether the equities favor the parents or the Department of Education.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Point I

The Department of Education’s Case [REDACTED], Esq., the Department of Education Consultant Hearing Representative who appeared at the hearing, did not put on a case. Ms. [REDACTED] did not submit any documents into evidence, waived presenting opening and closing statements, did not present any witnesses, and did not cross-examine the parents’ witnesses (TR: 30, 33, 36, 54-55).

Therefore, I find that the Department of Education failed to meet its burden of demonstrating that it is providing the student with a FAPE during the 2023-2024 school-year.

Point II

The Parents’s Case

Findings of Fact

The student’s mother testified by Affirmation (Parents’s Ex. S). [REDACTED], PsyD., testified by Affidavit (Parents’ Ex. R). [REDACTED], the Program Director of [REDACTED], testified in person (TR: 37-54). The parent and Dr. [REDACTED] were available to testify at the hearing but, as noted, Ms. [REDACTED] did not call either of them for cross-examination (TR: 36).

A.

The student was first diagnosed with Autism Spectrum Disorder (“ASD”) when he was two years-old. He tends to become dysregulated, has a need for ongoing sensory input, and requires extensive sensory support to be regulated. When the student’s sensory needs are not met, he is unable to participate in classroom activities and can endanger himself and others, as he will seek sensory input regardless of whether it is safe. For example, the student has a history of crashing into the wall or objects and biting himself and other children (Parents’ Ex. S at 1).

The student primarily communicates by taking an adult’s hand and bringing that adult to the thing he wants/needs. He has started to use a communication device equipped with Proloquo2go to expand his communication, and he will occasionally use one-word utterances and sign language to communicate with his mother (Parents’ Ex. S at 1). However, the student’s communication delays make it difficult for him to socialize with peers his age, and he is easily overstimulated by children who tend to be loud and unpredictable. He struggles with attending to a group plan, which negatively impacts his ability to participate in classroom instruction without significant amounts of individualized support. The student requires ongoing sensory input throughout the school day in order to remain engaged and instructors who are attuned to his communication differences (Parents’ Ex. S at 2).

The student has extensive toileting needs. He is not toilet trained and wears diapers in school. He does not communicate when he needs to use the restroom and has a history of smearing his eliminations on himself. In order to eliminate and even to be cleaned, he needs two people available, access to a shower, and sensory support, such as running water, so he can remain calm while being changed (Parents’ Ex. S at 2).

Dr. [REDACTED] and [REDACTED] conducted a Neuropsychological Evaluation of the student on June 28th and June 30, 2022 (Parents’ Exs. Q, R at 1).^[2] Dr. [REDACTED] diagnosed the student as having ASD with intellectual and language impairments, Level 3 (requiring very substantial support). He determined that the student’s profile would also meet the criteria for a Global Developmental Delay that would be considered moderate in nature (Parents’ Exs. Q at 8, R at 2). The Evaluation Report indicates that the student had a negative response to Applied Behavior Analysis (“ABA”), which was emphasized in his then-current program, and that he was not making progress. Among other things, Dr. [REDACTED] recommended intervention based on the [REDACTED] as an appropriate overarching methodology to meet the student’s needs (Parents’s Exs. Q at 8, R at 2-3).

The student’s mother testified that she placed the student at [REDACTED] for the 2023-2024 school-year because she “know[s] from experience” that the school provides him with an appropriate special education program, as the student has been attending [REDACTED] since September 2022 (TR: 45; Parents’ Ex. S at 4).

B.

[REDACTED] is the Program Director of [REDACTED] (TR: 38). 3 As part of her responsibilities she conducts informal classroom observations and meets weekly with classroom teams, related service providers, and the supervisors of each department. Ms. [REDACTED] also oversees the parents training program and is responsible for programming (TR: 39-40). [REDACTED] is a school for children with neurodevelopmental delays in relating and communicating. Approximately 85% of the students have a diagnosis of ASD and the other 15% present with the same core deficits in relating and communicating as those diagnosed with ASD (TR: 40). For the 2023-2024 school-year [REDACTED] has 155 students from ages from ^[3] through 21 (TR: 39).

The student to teacher classroom ratio 2:1. The overriding approach used in the school is [REDACTED]. Through research and use, [REDACTED] has shown it is able to address a child's core deficits in relating and communicating. [REDACTED] also addresses other developmental concerns by individualizing a program to look at each child's developmental differences, meaning sensory processing and how they relate to the world, and how do they take in information (TR: 40).

The classroom teachers need to have a Master's Degree in special education or to be enrolled in a Master's Degree program (TR: 44). All of the school’s related service providers, have, at minimum, a Master's Degree and many have doctorates. All of the providers are either certified in their field or working on certification. If a therapist is not yet certified, the therapist is supervised by a provider with certification (TR: 44).

The students are grouped in classes according to age, developmental level, sensory processing, and verbal ability. The school aims for a mix in its classes, so that each child has an opportunity to be a role model and also be challenged by the group (TR: 44-45).

Academics are taught individually (TR: 45). The school uses and adapts standard curriculums. For example, for literacy, the school uses Balanced Literacy, Reader's Theater, and Lindamood-Bell. For math, the school uses AbleNet, for science, it uses Hands-On, and the Social Studies program is based on the Creative Curriculum. All of the related service providers use the methodologies that reflect their training (TR: 41).

[REDACTED] conducts a Functional Emotional Assessment Scale assessment of each student as the initial intake evaluation. The school conducts additional informal assessments throughout the year (TR: 41). The assessments, observations, and clinical opinion are used to create a treatment plan for each student. The treatment plan includes a six-month set of goals, after which a student’s teachers and providers write a Progress Report. The teachers discuss the Progress Report and the student’s six month plan with the student’s parents at a meeting. While each student’s treatment plan is updated every six months, the students’ teams meet weekly and adjustments to a student’s program can be made as necessary (TR: 42).

C.

Ms. [REDACTED] knows the student, who is [REDACTED] years-old. She sees the student informally throughout the day, as his classroom is on the same floor as her office. Ms. [REDACTED] also does informal classroom observations once every two to three weeks (TR: 45-46).

The student presents as a young man with neurodevelopmental delays in relating and communicating. The student has some vocalizations and uses gestures. He utilizes an assistive technology device to be able to communicate more effectively, and to ensure that he understands what is being said to him. The student is “incredibly sensory seeking.” He is on the move all the time, unless he is sleeping, and is always looking for input. He has a “very difficult” time taking in sensory information from his environment and using it in an integrated way. He has trouble focusing and attending. While the student presents with delays across all developmental areas, he has been improving since he started at [REDACTED] (TR: 45-47).

For the 2023-2024 school-year the student is in a class of nine students ranging in age from three to six years-old. The class has one head teacher and four teaching assistants, all of whom are trained in teaching [REDACTED]. The student works with all of the teachers in order to generalize what he knows and what he is working on, across all the adults in the classroom (TR: 47-48).

The student receives individual occupational therapy twice per week individually and once per week in a sensorimotor group. His occupational therapist is also assigned to his classroom where she conducts handwriting groups and other groups that that the student participates in throughout the week (TR: 48-49). The student receives speech/language therapy twice per week individually and once per week in a sensorimotor feeding group to address his feeding challenges. Ms. [REDACTED] testified that the student is a “very particular eater,” in that there is only a certain repertoire of foods that he will take or eat. The feeding group has been introducing the student to new food. He is exploring many new tastes and textures, and is beginning to increase the foods that he eats at mealtime (TR: 49-50).

The student’s schedule (Parents’s’ Ex. L) includes Activities of Daily Living (“ADL”), which for him, are skills such as independence, putting away his bookbag in his locker, and understanding what objects belong to him. His ADL also focuses on toileting and having him become more independent within the bathroom (TR: 50). The student’s occupational therapist set up a Sensory Diet for the student. It consists of a certain set of sensory activities done in a particular order to address the student’s sensory profile. The student’s Movement group can include many different activities, but is often an obstacle course with certain gross motor activities that are set up for the student to proceed through. The activities are often done in a group which includes turn-taking and other social skills. Peer Interaction involves a formal rather than a spontaneous interaction between the student and his peers. Two students are assigned to every teaching adult, who works with the two peers to interact and “tune into” each other. For example, they may each play with blocks independently and then be led to play with the blocks together (TR: 51-52).

A social worker is assigned to the family. The social worker communicates with the family weekly, and the teachers and related service providers communicate with the parents at least twice a month. The school communicates with the parents daily when appropriate (TR: 52).

Ms. [REDACTED] testified that the student has been making progress during the current school-year. For example, the student is being more open and not as reticent about things that he will eat, taking more risks. His sensory processing has improved significantly, in that he is able to focus and attend for somewhat extended periods of time. The student’s struggles with his primary regulators, feeding and sleep, seemed to have leveled out. His participation in groups and his initiation of interactions and following through, have increased. Overall, the school has seen improvement in the student’s presentation, regulation, and participation within the school day (TR: 52-53). Ms. [REDACTED] opined that the small, supportive program at [REDACTED] with DIR Floortime methodology is responsible for the student’s progress (TR: 53-54). The student’s mother confirmed and explained the student’s progress as well (Parents’ Ex. S at 4-5).

Dr. [REDACTED] is familiar with [REDACTED]. He testified that [REDACTED] is an appropriate placement for the student based on the student’s educational needs. He explained that the school’s program is appropriate because it utilizes a [REDACTED] education model, specifically [REDACTED], and focuses heavily on sensory integration. Dr. [REDACTED] agreed with the student-to-teacher ratio in the student’s class, with instructors trained in the type of evidence-based framework the student needs to make progress with his substantial social-emotional and reciprocal communication delays (Parents’ Ex. R at 4).

Dr. [REDACTED] reviewed the student’s individual schedule and treatment plan and determined that the goals are relevant to the “very basic” and primary challenges and lagging skills with which the student presents. He noted that the documents target areas such as shared attention, self-regulation, social relatedness, and two-way purposeful communication, without which he would not be available for learning. The activities on the student’s schedule target a wide range of academic and other activities that serve to address the basic foundational skills the student needs to work on, as well areas that can interfere with his learning and ability to engage, such as opportunities to meet his sensory needs (Parents’ Ex. O, R at 4).

The cost of tuition for the 2023-2024 school-year is $[REDACTED] (Parents’ Exs. H at 1, 6, N). As of August 8, 2023 the parents had paid $2500.00 (Parents’ Exs. N, S at 5)

Conclusions of Law

Under the second criterion of the legal standard, a parents 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 parents 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 evidence and testimony presented at the hearing, as detailed above and not repeated here, I find that the parents established that [REDACTED] is providing the student with educational instruction specially designed to meet his unique needs during the 2023-2024 schoolyear. In June 2023, the school developed a targeted, individualized, treatment plan for the student for the 2023-2024 school-year, that Dr. [REDACTED] found to be appropriate (Parent’s Exs. O, R at 4). Endrew F. v. Douglas County School District, 580 U.S. __, 137 S.Ct. 988, 1000-1002 197 L.Ed.2d 335 (2017). Ms. [REDACTED] explained that the student’s instruction is supported by such services as are necessary to permit the student to benefit from instruction, for example, a small 2:1 student-to-teacher classroom ratio, individualized academic instruction, individualized goals, a sensory diet, and occupational and speech/language therapy, as well as Dir Floortime, the methodology recommended for the student by Dr. [REDACTED]. See Endrew F., 137 S. Ct. at 1000-1002; Rowley, 458 U.S. at 188-189, 207. Both Ms. [REDACTED] and the student’s parent testified that the student is making progress. Finally I find that the program is providing the student with an educational program for the 2023-2024 school-year that will likely produce progress and not regression.

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 parents failed to cooperate with the Department of Education in any way in relation to the 2023-2024 school-year and the Department of Education does not contend otherwise.

In a 10-Day Notice letter dated June 20, 2023, the student’s parents, by their attorney Ms. [REDACTED], informed [REDACTED], the Chairperson of CSE [REDACTED], and [REDACTED], the Chairperson of CSE [REDACTED], of the parents’ disagreements with the IEP and program recommended for the student’s 2023-2024 school-year. Ms. [REDACTED] also noted that the parents had not yet received a placement recommendation for the student. The 12-month school-year was slated to begin on July 5, 2023, 15 days after the date of the letter (Parents’ Ex. B at 1-2).

Ms. [REDACTED] advised Ms. [REDACTED] and Ms. [REDACTED] that the parents would participate in an in-person or virtual tour of the school and assess whether it provided sufficient support to overcome their concerns with the IEP. However, absent an appropriate option, the parents expressed their intent to send the student to [REDACTED] for the 2023-2024 school-year and to seek reimbursement/payment for tuition, costs, and expenses, including appropriate and necessary special education transportation to and from the school (Parents’ Ex. B at 1-2).

On June 16, 2023, the parents received a phone call about a placement for the student at [REDACTED] (Parents’ Ex. G at 1). In a letter dated June 23, 2023, the student’s parents notified Ms. [REDACTED] and Ms. [REDACTED] that as of the date of the letter, the parents had not received official notice from the CSE as to whether that school was, in fact, the student’s Turning Five placement. Nevertheless, the student’s mother stated that she toured the school on June 21, 2023, and she detailed her concerns about its appropriateness for the student (Parents’ Ex. G at 1-2). The parents provided their contact information (email addresses and phone numbers) for the CSE to notify them regarding any misunderstanding on their part, and to provide any information responsive to their concerns (Parents’ Ex. G at 1-2). There is no evidence that the Department of Education responded to the letter.

The parents signed a contract to pay for the tuition whereby they “knowingly and voluntarily” assumed the financial obligations specified in the contract (Parents’ Exs. H at 2).

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

ORDER

It is hereby Ordered that:

1) The parents are to provide the Department of Education with proof of the student’s attendance at [REDACTED] during the 2023-2024 school-year, evidence of the student’s [REDACTED] tuition cost, and evidence 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 parents for monies paid, if any, and pay the balance of the tuition costs directly to [REDACTED]. The total amount of the tuition to be paid shall not exceed $[REDACTED]

Dated: December 17, 2023

Rona Feinberg

Rona Feinberg, Esq.

Impartial Hearing Office

EXHIBITS

A. DEPARTMENT OF EDUCATION: The Department of Education did not enter any documents into evidence. PARENTS: Exhibit Date Description # of Pages Due Process Complaint 07/06/23 13 pages

B. Ten Day Notice with CSE Confirmations 06/20/23 6 pages

C. Finding of Fact and Decision by IHO [REDACTED] 05/18/23 19 pages

D. Pendency Agreement 2023-2024 1 page

E. Individualized Education Plan by CSE 05/10/23 34 pages

F. Due Process Response 07/12/23 3 pages

G. Letter to CSE re: Parents Concerns with IEP and Recommended Public Placement 06/23/23 3 pages

H. [REDACTED] School Enrollment Contract Signed 2023-2024 6 pages

I. [REDACTED] School Program Description 2023-2024 8 pages

J. Class Schedule 2023 Summer 1 page

K. Attendance 2023 Summer 1 page

L. Class Schedule 2023-2024 1 page

M. Attendance 10/27/23 1 page

N. Tuition Affidavit 2023-2024 1 page

O. Student Treatment Plan June 2023 2 pages

P. Student Progress Report June 2023 12 pages

Q. Neuropsychological and Educational Evaluation Report by Dr. [REDACTED] 2022 13 pages

R. Affidavit of Dr. [REDACTED] 11/01/23 5 pages

S. Affidavit of PARENT 10/31/23 5 pages

T. Federal Tax Return (1040) and Adjustment Notice HEARING OFFICER: The Impartial Hearing Officer did not enter any documents into evidence. 2022 5 pages

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parents 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] Any additional requests for relief in the DPC were not raised at the hearing and are deemed to be waived (TR: 35- 36; Parents’ Ex. A at 10).

[2] Dr. [REDACTED] has a Master’s Degree and Doctorate in Clinical Psychology. He completed a two-year post-doctoral training program in pediatric neuropsychology (Parents’ Ex. R at 1). Ms. [REDACTED] holds a Master's Degree in Clinical Psychology and is an advanced doctoral student. At the time of the assessment, she had been training with Dr. [REDACTED] for a year and had multiple years of experience as a testing technician, administering cognitive and academic tests under Dr. [REDACTED]’s direction and supervision (Parents’ Ex. R at 1-2).

[3] Ms. [REDACTED] has a Master's Degree in social work, and is a Licensed Clinical Social Worker. She also has a Master's Degree in education and an SAS, school administration supervisory certification, and an SDA, school district administrator certification, all from New York State (TR: 38).