New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 160716

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 11, 2016

September 27, 2016

October 25, 2016

December 13, 2016

March 17, 2017

March 31, 2017

May 18, 2017

Actual Record Closed Date: July 6, 2017

Hearing Officer: Suzanne M. Carter, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2016

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2016

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2016

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2016

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2017

Attorney — Student

Parents

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2017

Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2017

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

Mother — Student

District Representative — DOE

INTRODUCTION

On June 13, 2016, I was appointed to conduct an impartial hearing pursuant to the Individual with Disabilities Education Act 20 U.S.C. §1400 et seq., regarding the special education program of (the “Student” or “ ”). A prehearing conference was held on July 19, 2016. Impartial was held over seven nonconsecutive days of August 11, September 27, October 25, December 13, 2016; March 17, March 31, and May 18, 2017. On August 11, 2016, Parent’s exhibits A-WW and District exhibits 1-20 were admitted. On March 31, 2017, Parent’s exhibits XX-YY were admitted. On May 18, 2017, Parent’s ZZ-HHH and District’s 21-22 exhibits were admitted. The hearing officer issued four interim and a pendency orders. Ex. I-V. The Parent and District submitted closing briefs admitted as Ex. III and Ex. 23, respectively. The record closed on July 6,

2017

BACKGROUND

The Student’s classification is . Ex. C. Until April 2016, had been attending , a in . Tr. 6. .

Ex. C. The CSE convened on March 11, 2016 and determined needed a new placement. Tr. 66. He was accepted on July 11, 2016 at in , but . Tr. 67–68, 69. The Parent alleges a denial of a free appropriate public education (FAPE), commencing in April 2015, for failures to recommend appropriate programming, to appropriately classify the Student, to evaluate him, to address , and to provide for meaningful parental participation in the CSE meeting. Ex. A.

CONDUCT OF THE IMPARTIAL HEARING PROCESS

The Hearing Officer exercises Broad Authority during the Impartial Hearing

Process

Impartial hearing officers (IHOs) are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA." W arren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]. See, e.g., Forrest

Grove Sch. Dist. v. T.A., 557 U.S. 230, 52 IDELR 151, n. 11(2009); Davis v. K anaw ha

Cty. Bd. of Educ., 53 IDELR 225 (S.D.W.V. 2009); Renollett v. Independent Sch. Dist.

No. 11, 42 IDELR 201 (D. Minn. 2005). Pursuant to the IDEA, both a parent and a district have impartial hearing rights to "present evidence and confront, cross-examine, and compel the attendance of witnesses." 34 CFR 300.512[a][2]; see 8 NYCRR

200.5[j][3][xii]). Nonetheless, the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious." 8 NYCRR

200.5[j][3][xii][c].

On March 17, 2017, , at testified as to being an appropriate placement for the Student.

T136-52. The initial step is a . Tr. 148. to is handled by that specialize in

. Tr. 148-49.

Dr. conducted a evaluation. Ex. AAA. His diagnostic impressions were . Ex. AAA. He opined that needed

a placement “

” Tr. 180. He supported

placement at . Tr. 179.

The District was afforded two weeks to gather more information about and present a rebuttal clinical witness. Tr. 188-90 . The IHO deferred an interim order for a evaluation to permit this testimony. Tr. 190. Time was of the essence because the Student had not attended school since April 2016 and interim efforts such as and had failed. Tr. 245-46. He was denied entrance to a . Tr. 243. More concerning, during these two weeks. Tr. 242.

When hearing resumed on March 31, 2017, District Representative stated that she did not have a rebuttal witness. She instead sought to introduce a complaint and jury demand filed in the United States District Court for the District of that she found by “Googling” . Tr. 202.

The IHO gave a lengthy explanation as to why the district court complaint did not constitute competent and relevant evidence for the issue to be decided and denied its admission. Tr. 209-213. Next, Ms. attempted to introduce news articles she found on the Internet. Tr. 209. The IHO again gave a sound legal foundation as why the articles were not competent evidence and denied their admission. Tr. 209-213.

Absent a legal disqualification under N.Y. Jud. Law § 14, a hearing officer is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court. , , testified about and its ability to enroll . Tr. 217-228. On cross-examination, Ms. attempted to question

Mr. about the subject matter of the inadmissible complaint. Tr. 233. The IHO immediately objected to the question. Tr. 233-34. Ms. then sua sponte asked the IHO to recuse herself. Tr. 234. The IHO instructed MS. more than once to continue with her cross-examination but she declined to do so and rested her case. Id.

Recusal of the IHO was not warranted simply because the District received an adverse ruling. It is squarely within the IHO’s domain to exclude irrelevant and incompetent evidence that will not decide the issues.

FINDINGS OF FACT

The Parent has met her burden of persuasion and production under the Burlington/Carter test

Generally in the impartial hearing, the district “shall have the burden of proof, including the burden of persuasion and burden of production, except that a parent …

seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404(c)(1). Therefore, the hearing is governed by the three-part Burlington/Carter test: “(1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and

(3) the equities favor them.” M.W . v. New Y ork City D ep't of Educ., 725 F.3d 131, 135 (2d Cir. N.Y. 2013) (footnote and citations omitted). The Parent has met all three prongs of the Burlington/Carter test as follows.

The District failed to provide the Student with FAPE for 2015-16 and 2016-17

In March 2017, the Supreme Court of the United States reaffirmed that “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child ’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).

This exercise is fact-intensive. Id. It requires school officials with the prerequisite expertise and input from the parent. Id. “The IEP must aim to enable the child to make progress.” Id. “A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program.” Id. (citation omitted) (emphasis added). An IEP is not a form document with checkboxes. Id. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. Id. (citation omitted). For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” Id. at 1001 (citation omitted).

School refusals by students with disabilities warrant action by the CSE. See, e.g., Bd. of Educ. v. S.G., Civil Action No. DKC 2005-0323, 2006 U.S. Dist. LEXIS 8566

(D. Md. Mar. 6, 2006); Johnson v. Metro Davison Co. Sch. Sys., 108 F.Supp.2d 906

(M.D.Tenn. 2000); and see Weixel v. Bd. of Ed., 287 F.3d 138 (2nd Cir. 2002) (special education services include home instruction where child’s disability prevents the student from attending class). In the Frost matter, the district court found a report did not offer sufficient exploration of the Student's school refusal issues and an independent educational evaluation was "warranted to get to the root of the school refusal . . . .” E.L.

Haynes Public Charter Sch. v. Frost, 2015 U.S. Dist. LEXIS 172598, *43-44 (D.D.C.

Sept. 11, 2015). FAPE was also denied where the local school district failed to amend the IEP to address Student's refusal to attend school." Chavez v. Bd. of Educ., 614 F. Supp. 2d

1184, 1210 (D.N.M. 2008). The importance of functional behavior assessments (FBAs)

coupled with behavior interventions plans (BIPs) are crucial to address a student’s interfering behaviors. L.O. v. New Y ork City Dept. of Educ., 822 F.3d 95 (2nd Cir. 2016).

Failure to perform an FBA “is a particularly serious procedural violation for a student who has significant interfering behaviors.” 822 F.3d at 113. Without one, it is near impossible to determine whether an IEP adequately addresses behavioral impediments and whether the recommended behavioral strategies are appropriate. Id. Recently, the SRO found a FAPE denial for two school years due to a failure to address school refusals.

Application of a Child with a Disability Appeal No. SRO 17-024.

Herein, the is the central issue and that, by failing to address this issue adequately, the District failed to offer the student a FAPE for the 2015-

16 and 2016-17 school year. The IEP even states that erroneously that a is not required. Ex. B. The annual goals for leave the measure of progress to teacher/provider discretion. Ex. B. This is a substantive violation of FAPE. The results of the progress monitoring are used to determine if there has been a change in in relation to the interventions used and considered in any determination to revise a student's

. Without periodic measures of progress, the is destined to fail.

I find that the Student was denied FAPE for 2015-16 and 2016-17.

is an appropriate placement

The standards for determining whether a private school placement is “appropriate” under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement. The Second Circuit has explained that “[s]ubject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.”

Gagliardo v. A rlington Central Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007) (citation omitted). “The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits.” Id. (citation omitted). “A private placement meeting this standard is one that is likely to produce progress, not regression.” Id. (citation omitted). “Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” and “[a]n appropriate private placement need not meet state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006) (citation omitted). Moreover, “a private placement need not provide certified special education teachers or an IEP for the disabled student,” and “parents may not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted). “[T]he test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Id. (citation omitted). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement . . . provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (citation omitted).

On April 3, 2017, the IHO issued an interim order for a . . Ex. IV. The acceptance committee met and accepted . Tr. 275.

One week later he was enrolled after . Tr.

301–302. Since arriving at , he “ ” Tr. 286.

. Tr. 288. , “

.“ Tr. 287. . Id.

As part of his treatment, has provided by , a . Tr. 310. At the time of hearing on April 10, 2017, was in its early stages with . Tr. 314–315. . Tr. 317.

is also being addressed. Id.

Since enrollment at ,

. I find that is an appropriate placement for

him.

The equities favor prospective funding

The final criterion for a reimbursement award or prospective funding is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA M.C. v. V oluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of Case No. 160716 the parties’ positions, and like matters.” Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F.Supp.2d 530, 533 (N.D.N.Y. 2001). In the absence of evidence demonstrating that parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. See

M.V . v. Shenendehowa CSD, 2008 WL 53181 (N.D.N.Y. 2008) (“If a student is not provided with a FAPE and the private placement determined by the parents is deemed appropriate, the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief”). When it has been determined that a proposed IEP is inadequate and the disabled child lacks the financial means to meet the cost of private-school tuition, an award directing a district to prospectively place a student in an appropriate, but non-approved school may be proper. See Connors v. Mills, 34 F.Supp.2d 795, 802, 805-06 (N.D.N.Y. Sept. 24, 1998).

The IDEA in fact codifies only one aspect of the “equities” analysis, namely whether the parent gave the school district adequate notice of the unilateral placement. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see Frank G., 459 F.3d at 372 (requiring only

“reasonable notice” of enrollment in a private school at public expense). In its closing brief, the District asserts that prospective tuition funding is beyond the four corners of the due process complaint because it was not requested. Ex. A. However, the District overlooks that the Parent served a 10-day notice for the unilateral placement at . Ex.

YY. In light of the Parent’s complete cooperation with the CSE, prospective tuition funding is warranted.

The CSE must cooperate with to

For a student placed in a , the regulations require, “a proposed plan and timetable for enabling the student to return to a less restrictive environment or a statement of reasons why such a plan is not currently appropriate[.]” 8 NYCRR §

200.6(j)(1)(iii)(d). works collaboratively with the local school district to ensure a and . Tr.

319. and are critical components of the .

Id. Therefore, when , the CSE must cooperate with to to prevent the Student’s relapse.

ORDER

IT IS THEREFORE ORDERED THAT

1. The Department shall fund the Student’s attendance at retroactive to April 10, 2017 through June 30, 2018.

2. The CSE shall cooperate with to for the Student to return an appropriate placement for the 2018-19 school year.

3. Said cooperation shall be included on the Student’s 2017-18 IEP. Dated: July 18, 2017

SUZANNE M. CARTER, ESQ.

Impartial Hearing Officer SC:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD

Parent’s Exhibits admitted August 16, 2016

A Demand for Due Process Hearing 6/10/16 8

B IEP (7/1/16 implementation date) 3/11/16 12

C IEP (4/4/16 implementation date) 3/11/16 11

D IEP 8/12/15 12

E IEP 4/29/15 18

F IEP 1/16/15 12

G IEP 10/27/14 12

H IEP 6/19/14 8

I CSE Meeting Notice 2/19/16 3

J Nickerson Letter 8/11/15 6

K CSE Meeting Notice 8/5/15 1

L Assessment Planning Consent Form Signed by Parent 12/22/14 1

M Request for Reevaluation 12/18/14 1

N Authorization to Attend 12/9/14 4

O Prior Written Notice 10/29/14 7

P Prior Notice Package page 4 in 10/29/14 1

Q Letter to Parent from 8/28/14 1

R Assurance Checklist 6/19/14 2

S Consent for Evaluation Signed by Parent 6/2/14 1

T Letter to from Parent 5/19/14 1

U Notice of 3/25/14 1

V Notice of in 3/25/14 1

W Letter to from Parent 3/11/14 1

X Evaluation 3/14/16 3

Y 3/11/16 5

Z ( ) 10/15/15 17

AA ( ) 10/15/15 17

BB 1/16/15 3

CC Classroom Observation 1/14/15 2

DD Update 12/23/14 3

EE Teacher's Report 12/22/14 3

FF 6/19/14 7

GG 6/19/14 8

HH Evaluation 6/13/14 5

II Classroom Observation 6/10/14 2

JJ Reevaluation 4/18/14 26

KK 2015-2016 Report Card 3rd Qtr 2

LL 2015-2016 Report Card 2nd Qtr 2

MM IEP Goal Progress Report 2/17/16 3

NN 2015-2016 Report Card 1st Qtr 2

OO IEP Goal Progress Report 12/2/15 3

PP Teacher’s Report – 3/10/15 4

QQ Teacher’s Report – 3/9/15 4

RR Teacher’s Report – 3/9/15 4

SS Teacher’s Report – undated 4

TT Teacher’s Report – undated 4

UU Student Progress Report - 2/10/15 2

VV Teacher’s Report – 12/22/14 3

WW Teacher’s Report – undated 4

Exhibits admitted March 31, 2017

XX Letter (Not in Evidence) Undated 1

YY 10 Day Letter 03/17/2017 1

Exhibits admitted May 18, 2017

ZZ Email Correspondence 03/17/2017 2

AAA Evaluation 04/20/2017 5

BBB Programming Progress Report 04/16/2017 1

CCC Programming Progress Report 04/29/2017 1

DDD Programming Progress Report 04/21/2017 1

EEE Programming Progress Report 05/06/2017 1

FFF 05/09/2017 6

GGG Progress Note 05/09/2017 2

HHH Progress Report Undated 1

III Closing Brief with attachment 6/26/2017 51

IHO Exhibits

I. Interim Order 8/16/16 4

II. Interim Order 10/12/16 3

III. Interim Order 11/1/16 3

IV. Interim Order 4/3/17 4

V. Pendency Order 6/22/17 3

Department’s Exhibits admitted August 16, 2016

1. 6/10/16 9

Due Process Complaint

2. 6/17/16 3

Due Process Response

3. 6/28/16 2

Proposed Partial Resolution Agreement

4. 7/29/15 37

Finding of Fact and Decision

5. 8/5/15 5

Notice of IEP Meeting

6. 8/12/15 2

7. 8/14/15 1

8. 8/12/15 10

Individualized Education Program (IEP)

9. 8/14/15 7

Prior Written Notice of Recommendation

10. 10/15/15 34

()

11. 2/29/16 5

Notice of IEP Meeting

12. 3/11/16 5

13. 3/11/16 2

CSE Meeting Minutes

14. 3/14/16 3

Evaluation

15. 3/11/16 10

Individualized Education Program (IEP)

16. 3/11/16 7

Prior Written Notice of Recommendation

17. Undated 3

18. March-April 10

NPS Response Letters 2016

19. 5/4/16 3

Notice of Securement

20. 5/5/16 10

Individualized Education Program (IEP) Exhibits admitted May 18, 2017

21. Fall 2016 3

22. Spring 2017 4

23. Closing Brief 6/26/17 11