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NYSED # 604826 - NYC # 248459
Findings of Fact and Decision
Case Number: 248459
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Service District#[REDACTED]
Impartial Hearing Officer: Kevin T. McGrath
Date of Filing: May 22, 2023
Hearing Requested by: [REDACTED] (Parent)
Date of Hearing: September 14, 2023
Record Close Date: September 26, 2023
Date of Decision: September 26, 2023
Names and Titles of Persons Who Appeared on September 14, 2023:
For the Department of Education (DOE):
[REDACTED], Independent Hearing Consultant Representative
For the Student:
[REDACTED], Advocate
[REDACTED] – Parent and Witness
[REDACTED], Program Director at [REDACTED] - Witness
[REDACTED], ABA provider - Witness
INTRODUCTION
Parent filed a Due Process Complaint (DPC) on, or about, May 22, 2023. In the DPC, Parent alleges that the Department of Education (DOE) failed to offer Student[1] a free and appropriate public education (FAPE) for the 2023-2024 school year.[2]
Parent seeks an award ordering that Student be placed at, and the DOE fund the tuition at, Private School, a program at a New York State-approved non-public school for the education of students with disabilities, for the 2023-2024 school year. The DPC asserts the DOE failed to provide Student with a FAPE for the 2023-2024 school year when its Committee on Special Education (CSE) failed to create an Independent Educational Program (IEP) that contains an appropriate recommendation for services and placement location.[3]
As detailed below, I hold: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2023-2024 school year; and (b) the Student is entitled to a compensatory education award placing Student at Private School, with tuition funded by the DOE, for the 2023-2024 school year.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on May 23, 2023. The DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on June 26, 2023, and a Prehearing Conference Summary and Order was issued the same day.[4] Status Conferences were held on July 14, 2023 and August 14, 2023 with Status Conference Summaries and Orders being issued the same day. A hearing on the issue of pendency was conducted[5] on August 14, 2023. A “Pendency Order” was issued on August 15, 2023 that continues Student’s placement at Private School until the conclusion of this action.[6]
A merits hearing was held before me on September 14, 2023. At the hearing, the DOE Representative conceded that the DOE failed to provide a FAPE to Student.[7] The DOE did not produce any exhibits and declined to make an opening or closing argument, present testimony evidence, or cross-examine the witnesses. Also, at the September 14, 2023 hearing, Parent’s Representative presented 14 exhibits, all admitted into the record without objection.[8] Parent, Private School Representative, and ABA Provider appeared at the hearing to provide testimony on Student's behalf.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student is [REDACTED] years old at the 2023-2024 school year’s start and currently is placed at Private School. Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student presents with “Autism.”[9]
Student was educated for two years at Private School at the Committee for Preschool Special Education’s (CPSE) funding and direction. Additionally, during this time Student received Adaptive Behavior Analysis (ABA) therapy funded by a private health insurance policy. In preparation for Student entering Kindergarten, a “turning 5” IEP meeting was held on February 1, 2023 (February IEP). The February IEP directed Student to remain at Private School for the 2023 summer session (July and August 2023) but then be placed at a District 75 school starting in September 2023.[10] Parent objects to the February IEP’s sections placing Student at a District 75 school.[11]
Parent and Private School Representative both attended the February IEP meeting to support Student and participate in the IEP’s development.[12] Prior to the IEP meeting, Parent provided the CSE with several recommendations from teachers and service providers, all of which recommend placement at Private School to allow Student to make academic progress.[13] At the IEP meeting, Parent and Private School Representative expressed their disagreement with the IEP and argued against the placement at a District 75 school.[14] After receiving a school placement location letter, Parent investigated the location and objected to the placement because it was nearly an hour's driving distance from Student’s home and did not offer a structured ABA program.[15] Subsequent to the February IEP meeting, Parent engaged in several email communications with the DOE regarding Student’s placement and the services Student requires to make academic progress.[16] Parent also attended additional IEP meetings on May 2, 2023, and August 1, 2023.[17] However, Parent also objects to these subsequent IEPs because they continue to recommend placement at a District 75 school. After filing the Due Process Complaint, Parent also requested the CSE conduct an independent educational evaluation (IEE).[18]
Private School
Private School Representative testified to the curriculum and Student’s progress at Private School. Private School Representative is the “program director” at Private School.[19] They possess a degree from the College of Staten Island and a post-graduate educational leadership certification. They have certificates as a School Building Leader (SBL), School District Leader (SDL), and Registered Behavior Technician (RBT). Additionally, they possess professional teaching certificates in New York and New Jersey for students with disabilities from birth to grade six (6).[20] Private School Representative’s responsibilities include screening incoming students, providing support in implementing instructional programming, ensuring staff are adequately trained, coordinating annual IEP meetings, and assisting in the development of IEPs.[21]
The Private School is the only NYS-approved non-public school on Staten Island that enrolls students in Student’s age range.[22] The organization serves students in NYC with developmental delays between the ages of preschool to middle school.[23] The school utilizes ABA methodology and an academic curriculum in all content areas, and ABA programming and practice are supervised by a full-time, on-site Board-Certified Behavior Analyst (BCBA).[24]
Private School Representative is familiar with Student’s special education needs from their involvement in Student’s enrolment and working with Student as an interim teacher from May 2023 to August 2023.[25] Student is currently placed in a class of eight (8) students (who present with similar needs and strengths) with one (1) teacher and two (2) assistants.[26]
The Student is progressing in all areas (i.e., academic, behavioral, communication, and socio-emotional) during the education at Private School. Private School Representative reported that the Student made progress with relinquishing toys when given verbal cues, sitting appropriately in small group lessons, decreasing maladaptive behavior, engaging in independent and parallel play, and copying some lines and colors.[27] Private School Representative disagrees with the recommendations in the February IEP placement at a District 75 school and believes that Private School can properly support Student’s education needs.[28] Various other providers and teachers submitted letters supporting Student’s placement at Private School.[29]
Credibility
I determine the following upon considering the evidence, including all admitted documents and witness testimony. In accepting the documents, I found them all relevant and represent the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the statement’s veracity or the relevant opinion's earnestness, and therefore, I find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE failed to provide FAPE for Student for the 2023-2024 school year and that the placement of Student at Private School is an appropriate award as compensatory relief.
FAPE for the 2023-2024 School Year
The DOE Representative conceded that the Student was not provided a FAPE, and presented no witnesses or documentary evidence.[30] On these facts alone, I am constrained to find that the DOE failed to offer Student FAPE for the 2023-2024 school year.
Nonetheless, the record supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year. The February IEP denies Student a FAPE because (a) the Parent was denied meaningful participation in the IEP development, and (b) the DOE fails to demonstrate they provided an appropriate program for the Student during the 2023-2024 school year.
A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[31] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[32] To meet its substantive FAPE obligations, a school district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[33] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[34]
Firstly, the DOE fails to show they properly considered the input from Parent. At the 2023 IEP meeting, Private School Representative recommended that Student require a small special education school that offers 1:1 instruction and ABA services. This recommendation is also consistent with the psychologist's report. Further, the February IEP does not indicate that the psychologist's report or teacher recommendation letters were reviewed or considered by the CSE. Accordingly, the February IEP does not demonstrate that the DOE sufficiently considered the Parent’s concerns or a placement at a non-public school and simply states that Student, “requires support of a special class with related services.”[35]
Procedural violations in the formation of an IEP do not automatically entitle a parent to reimbursement, but may if “they ‘impeded the child's right to a [FAPE],’ [or] ‘significantly impeded the parents' opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits’.”[36] The cumulative effect of multiple procedural violations may constitute a denial of FAPE, even if the violations considered individually do not.[37]
I find that the DOE’s simplistic rejection of placement options does not explain if the opinions and recommendations of Parent, the various teachers and service providers from Private School Representative, and the psychologist's report were properly considered or grounds for being rejected. The evidence establishes that the DOE actions denied Parent the opportunity to participate in the decision-making process by not considering relevant records produced by Parent. Parent’s right to participate is not merely the right to speak, especially where, as here, the record is devoid of evidence that the CSE meaningfully considered the Parent’s proposed placement.
Secondly, the DOE fails to show that they created an IEP to meet Student’s individual needs. The February IEP references the observations that Student requires 1:1 support and was benefiting and making progress at Private School from the variety of teaching methodologies, which includes ABA. Further the February IEP details how Student has limited communication abilities (using 1-2 work utterances); has difficulty with ADL skills (such as not being toilet trained or indicated when wet or soiled, having limited use of a fork, and cannot dress themselves); and requires constant attention to prevent eloping and to remain focused when completing tasks. Despite these comments, the February IEP fails to allow for any 1:1 support or show that Public School has the proper staff and resources to address Student’s academic, social, and emotional requirements.
As such, I find that the evidence demonstrates Student was denied a FAPE for the 2023-2024 school year.
Placement at Private School
As a result of the denial of FAPE in the February IEP, I hold that the placement of Student at Private School is an appropriate compensatory education remedy to allow student to make progress during the 2023-2024 school year.
Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the award amount.[38] A hearing officer may award compensatory education relief through supplemental special education or related services when there has been a denial of a FAPE.[39] Although an award of damages is not available under the IDEA,[40] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[41]
The DOE has the burden of proof on the issue of compensatory education.[42] However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their entire requested compensatory remedy. When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.[43] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”[44] In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[45]
In this action, the DOE failed to meet its burden of persuasion and production. The DOE offered no explanation, evidence, or witness testimony as to how the February IEP or placement at the Public School is reasonably calculated to enable Student to make appropriate academic, social and emotional progress considering their circumstances. In contrast, the Parent has presented sufficient evidence to show Private School provides education services to address the Student’s individual needs.
Taken as a whole, the testimony and documentary evidence show Private School “provides educational instruction specially designed to meet the unique needs” for the Student that will enable them to make progress.[46] The evidence demonstrates Private School is an NYS-approved non-public school.[47] Additionally, Private School is an appropriate placement because they: (1) have hired specially trained teachers to educate students with difficulties in the acquisition of reading and writing skills and with special education needs;[48] (2) provide the Student with a student-to-teacher ratio of 8:1:2;[49] (3) individualizes instruction for the Student in education instruction;[50] and (4) have shown Student is making objectively established progress.[51]
Further, the Parent has shown that the equities would favor the requested award. Parent attended the February IEP meeting, discussed Student’s education plan and their concerns about a placement at a District 75 school, attended subsequent IEP meetings, had multiple communications with the DOE, and inspected the proposed placement.[52]
The Parent seeks an Order placing Student at Private School and having the DOE fund the tuition at Private School. Under certain circumstances, courts have frowned on an IHO ordering relief in the form of specific IEP recommendations, as such, have the effect of circumventing the process detailed in the IDEA, where the school district’s CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs. However, in this matter, it is uncontested that the DOE has failed Student consistently where[53] the DOE: (a) has conceded that the Student was not provided a FAPE; (b) it has offered no defense of IEP; (c) has not explained why the “District 75” placement recommendation remained in place during the subsequent CSE meetings in May and August 2023; (d) where it has not established that the proposed school placement was capable of allowing Student to make progress; and (e) where Parent has proposed an educational placement capable of producing progress. Accordingly, granting the prospective placement of Student for the 2023-2024 school year is appropriate and necessary to meet the individual needs of this student.
Overall, and after considering the record, I hold that the evidence sufficiently supports Parent’s claim and Order the placement of Student at Private School and for the DOE to fully fund Student’s tuition at Private School for the 2023-2024 school year.
ORDER
NOW, THEREFORE, BASED ON THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2023-2024 school year, and
IT IS FURTHER ORDERED THAT:
(2) Parent’s request for an Order placing Student at Private School, a NYS approved non-public school, for the 2023-2024 school year is GRANTED.
a. Within 14 days of the date of this decision, the DOE shall convene the CSE, including a representative from Private School, wherein DOE shall defer Student’s placement to its Center Based Support Team, specifically for the placement of Student at Private School; and
b. Student shall continue to remain placed at Private School, with the DOE directly funding Student’s tuition, until the Center Based Support Team meets and approves the placement of Student at Private School.
So Ordered.
Kevin T. McGrath Dated: September 26, 2023
Kevin T. McGrath, Esq. (signed electronically)
Impartial Hearing Officer
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 at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
| [REDACTED] Information | Term Used In FOFD |
|---|---|
| [REDACTED] | Student |
| [REDACTED] | Date of Birth |
| [REDACTED] | Student’s I.D. Number (OSIS) |
| [REDACTED] | Parent |
| [REDACTED] | DOE Representative |
| [REDACTED] | Parent’s Representative |
| [REDACTED] | Private School |
| [REDACTED] | Private School Representative |
| [REDACTED] | ABA Provider |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| NONE | |||
Parent’s Exhibits
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Request for Impartial Hearing | 05/02/2023 | 1 |
| B | Individualized Education Program | 02/01/2023 | 24 |
| C | Psychological Evaluation | 10/30/2019 | 6 |
| D | Classroom Observation | 02/27/2023 | 2 |
| E | Psychological Evaluation | 02/28/2023 | 2 |
| F | Individualized Education Program | 05/02/2023 | 27 |
| G | Email recommendation Letters for School Placement | 05/08/2023 | 12 |
| H | Email to [REDACTED] School Psychologist | 05/15/2023 | 1 |
| I | Psychological Education Assessment | 06/09/2023 | 4 |
| J | Individualized Education Program | 08/01/2023 | 30 |
| K | Email requesting IEE | 08/04/2023 | 1 |
| L | Witness Affidavit [REDACTED] | 09/05/2023 | 7 |
| M | Parent’s Affidavit | 09/05/2023 | 3 |
| N | Witness Affidavit [REDACTED] | Undated | 3 |
IHO Exhibits
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I | Prehearing Conference Summary and Order | 6/26/2023 | 1 |
| II | Status Conference Summary and Orders | Various | 5 |
| III | Pendency Order | 8/15/2023 | 7 |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Ex. A.
[3] Id.
[4] IHO Ex. I.
[5] IHO Ex. II.
[6] IHO Ex. III.
[7] Tr. at 66-67.
[8] Id.
[9] Id.
[10] There is no other objection raised regarding the related services being recommended Student in the February IEP.
[11] Parent questioned the IEP recommendation for a paraprofessional because Student did not previously utilize one. However, Parent is not seeking a decision on the issue of paraprofessional services.
[12] Ex. B.
[13] Ex. G.
[14] Ex. M at ¶13.
[15] Id. at ¶18
[16] Ex. G; Ex. H; and Ex. K.
[17] Ex. F; and Ex. J.
[18] The DPC does not raise a claim for an IEE. As such, any issue regarding the need for an IEE is not considered in this FOFD. See Ex. K.
[19] Ex. L at ¶1.
[20] Id.
[21] Id.
[22] Ex. L at ¶2.
[23] Id.
[24] Id.
[25] Id. at ¶3.
[26] Id.
[27] Id. at ¶7-8.
[28] Id. at ¶6-10.
[29] Ex. G.
[30] Tr. at 66-67.
[31] See 34 C.F.R. § 300.13.
[32] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[33] See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[34] See 20 U.S.C. § 1415(b)(6)(A).
[35] Ex. B.
[36] R.E. v. N.Y.C. Dept. of Educ., 694 F3d 167, citing 20 USC §1415(f)(3)(E)(ii).
[37] See Werner v. Clarkstown Cent. Sch. Dist., 363 F Supp 2d 656, 659 (SDNY 2005).
[38] See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir 2008); Application of Student with a Disability, Appeal No. 21-244.
[39] See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir 2008).
[40] see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F3d 478, 486 (2d Cir 2002).
[41] See Doe v. East Lyme, 790 F.3d at 454.
[42] See M.M. v. New York City Dept. of Educ., 2017 WL 1194685, 4 (SDNY 2017); Doe v. East Lyme Bd. of Educ., 790 F3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F3d 516, 524 (DC Ct of App 2005); Application of Student with a Disability, Appeal No. 21-169.
[43] See Boose v District of Columbia, 786 F3d 1054, 1056 (DC Cir. 2015).
[44] See Doe v. East Lyme, 790 F.3d at 454.
[45] See Id., 790 F.3d at 457.
[46] Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir 2006).
[47] Ex. L. at ¶2.
[48] Id. at ¶1-4.
[49] Id.
[50] Id. at ¶6.
[51] Id. at ¶8.
[52] Ex. M.
[53] See, e.g., Application of a Student with a Disability, Appeal No. 22-145, citing Adams v. Dist. of Columbia, 285 F Supp 3d 381, 393, 396-97 (DDC 2018); Application of a Student with a Disability, Appeal No. 23-059.