Impartial Hearing Decision

FINAL DECISION

Case Number 190584

Student’s Name

District

Hearing Requested By Parent

Date of Hearing April 14, 2020

April 24, 2020

June 3, 2020

July 20, 2020

Hearing Officer Sharyn Finkelstein Esq.

Record Close July 22, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 14, 2020

FOR THE STUDENT

Attorney

FOR THE DEPARTMENT

, PH.D. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2020

FOR THE STUDENT

Attorney

FOR THE DEPARTMENT

PH.D. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2020

FOR THE STUDENT

Attorney

Parent

FOR THE DEPARTMENT

PH.D. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2020

FOR THE STUDENT

Attorney

Parent

Director of

FOR THE DEPARTMENT

District Representative

PH.D District Representative

1

appeared on the record for a minute but had already begun and continued the representation on behalf of the Department

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of (“ ” or “Student”) for the academic year of 2019-20. There was an initial status hearing and it was clear that the matter had to go forward. The case was heard on July 20, 2020. I received the final transcript on July 22 , 2020 and the record was closed.

The parties moved to extend the compliance date on several occasions in light of anticipated settlement. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint requests for extension of the compliance dates were granted.

Attached to the record are lists of persons who appeared and evidence submitted into the record. The record was closed on June 15, 2020.

BACKGROUND

is an student classified as speech or language impaired.

. During the 2018-19 school year he had attended and received supplemental special education support. The parents had an independent neuropsychological evaluation conducted. On September 13, 2019 the CSE convened a meeting for the 2019-20 school year. The team recommended general education with Integrated Co-teaching (“ICT”) Services in ELA, Math, Science and Social studies as well as related services of occupational therapy and speech and language therapy. The parents disagreed with the recommendation. During the 2019-20 school year parents unilaterally placed him at the . They bring this hearing for tuition reimbursement.

DEPARTMENT’S CASE

The DOE was represented by on the day which was designated for the DOE to present their case. They did not present any witnesses or submit any evidence. represented the DOE on the final day of hearing when Parent presented their case. It is their position that the equities do not favor the parent and tuition should be denied.

PARENTS’ CASE

The parents were represented by their attorney . They maintain that the Department of education (DOE) did not offer a FAPE to the student during the 2019-20 school year. They maintain that the is appropriate and that the equities favor the parents. It is their position that tuition reimbursement should be granted in its entirety.

is the director of the of and is responsible for the educational program for students, ages six to turning ten. She is responsible for hiring teachers and therapists and working with teachers to develop individualized curriculum for the students. She is responsible for every aspect of the

.

At they work with students who are at least of average intelligence, who have good academic potential and give them the skills and tools necessary for them to be successful learners. They are not a graded school. They group students into age-based, skill -based cohorts that they refer to as clusters.

was in a class during the 2019-20 school year that she supervised and she was able to observe him fairly regularly. She was also able to have access to his distance learning and checked into his class a couple of times a week. She communicates with all of his teachers including during the time of distance learning.

She described as bright and wanting to learn. He has overall difficulty with executive functioning, He becomes hesitant if something seems to be out of his reach.

He requires a teacher to break things down into familiar parts or he will freeze. She explained that when he first came to the school he often froze and sit at his desk and cry.

She explained that as he became familiar with and established trust with his teachers and therapists, he was able to ask for help. He has the inability to take the skills that he knows and put them together which impacts him in reading, writing and math which is actually a strength.

She described the supports that he received. The classes are small. He was in a math group of nine students and had a lot of access to the teacher. They use a lot of multisensory methods. The teacher would break down tasks into smaller components and introduce the components step by step. He was given ample opportunities to practice.

He responded very well to this type of instruction.

In reading, he learned how to break down words. They used the Orton Gillingham method and he responded very well. He made a lot of progress with vowel sounds and with his reading decoding. There were five students in his reading group with one teacher as well as a speech language pathologist who pushed in twice a week. The speech language support is designed to help him with organization of both receptive and expressive language. He responded very well to the strategies. He had been placed in the specific reading group because the other students in the group continued to need direct instruction in phonics and word structure for reading, decoding and spelling. This was a particular area of need for . She opined that he did very well with that ratio.

He has attention issues as well and it is helpful for him to have a small ratio.

His teacher would check in with him and work on directions. He required special cuing from the teacher with certain strategies.

There were nine students in his math class with one teacher. His math skills were relatively strong. The other students in his group could also move at a fast pace and had good skills. During distance learning his group was broken down into groups because smaller groups were better during this time.

In writing they also taught in component parts. They use a program designed by

Judith Hochman for children with language-based learning difficulties. They use a graphic organizer and he responded well. He was doing well with the individual sentence skills, writing and expanded sentences.

They use a program called Ruller as the sign for emotional social learning. The school psychologist collaborates with the classroom teacher to teach students in accordance with the program. In class the focus was on a tool known as the

Mood Meter and students learn how to label their emotions on the quadrants. She explained that it was an important tool for him to due during distance learning. They also had a school psychologist check in with him twice a week as part of his regular distance learning schedule. He responded very well and ended up doing very well on distance learning.

language is impacted by the executive functions. Directions are highly scaffolded, delivered slowly, and the whole methodology of instruction is delivered slowly in component parts. can do relatively well because the structure of the program is supportive and he has a really good vocabulary. He had more difficulties with expressive language, word retrieval, and organization of language. His language difficulties impacted his writing. They use different types of graphic organizers.

worked with the speech language pathologist who pushed into his writing group at least once a week during distance learning and more often in the physical classroom.

also received occupational therapy which began as one to one and then he was seen in a dyad. He had pull out occupational therapy during distance learning. They worked on solidifying his right/left orientation which impacts overall executive functioning and organization. He works with the occupational therapist on handwriting and had made a lot of gains with handwriting.

There were eleven students in his homeroom class. There were two teachers assigned, a head teacher and an assistant teacher.

She explained how they measure progress. They have reading and math coaches who continuously observe students pull them for assessments. They continually monitor progress. They do formal assessments at the beginning of the year and again midyear and end of the year. On the midyear assessment was clearly making progress. She opined that he made a ton of progress socially and emotionally.

She opined that overall was able to address his identified special education need during the 2019-20 school year. (Tr. 23-49)

On cross-examination she acknowledged that all the students in the school have some type of diagnosed learning challenges.

His math class was never larger than nine. She first met him in September 2019.

She agreed that the school is ungraded but stated that many students have gone into general education settings after attending .

She acknowledged that his homeroom teacher did. Not have a Master’s degree.

(Tr. 49-54)

is mother. She opined that his biggest problems centers around reading and writing and having the confidence. They referred him for a neuro-psychological after being advised during the second parent teacher conference at during kindergarten that he was having a hard time with reading and may not be able to keep up with first grade.

has ADHD and has a s significant dyslexion. They recommended a small setting. She provided a copy of the report to the DOE.

She attended the IEP meeting and they had recommended an ICT class with pullouts. She opined that it would not work given the severity of his dyslexia. She voiced her concerns at the meeting.

She opined that would be appropriate because of the small class size and the grouping of students. She opined that he has made a good deal of progress.

She opined that they were able to address his deficits with executive functioning. He made progress emotionally. He was able to respond well to distance learning once he had the routine down.

She opined that was appropriate for his 2019-20 school year. She signed a contract and paid the tuition in full. She understood upon signing that if the DOE found a solution they would be relieved from their obligation. (Tr. 54-63)

On cross-examination, she stated that she had evaluated in August 2018.

They had kept him at during the 2018-19 school year. They had been hopeful he could stay because of a strong social community. At the year-end had developed a tic and they realized it would be detrimental for him to stay at the school.

As soon they realized he would not be able to stay they provided the documents to the

DOE.

They signed a contract on February 14 and waited until the end of the year to advise the DOE. She acknowledged it was a year after the test and four months after they had signed a contract with . At the time of the IEP meeting he had already been attending . She explained that it was only the first day of school and she would have considered another option if appropriate.(Tr. 63-67)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town

Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v.

Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.

(Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id.

(citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v.

New York City Department of Education (SDNY 2010).

Under prong 2 of the Carter-Burlington reimbursement/funding analysis, the test for parental placement is that it is appropriate, not that it is perfect. Warren G. v.

Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); see also M.S., 231 F. 3d at 105; SRO Appeal No. 07-098. With respect to the appropriateness of a private placement,

“[u]ultimately, the issue turns on “whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112.

The parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-

105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. at 37.

To prevail on a claim for tuition reimbursement, “equitable considerations [must]

support the parents’ claims.” Burlington School Comm v. Mass. Dep’t of Educ. 471 U.S.

7 (1997), 471 U.S. 359, 370 (1985). The IDEA mandates a cooperative approach to the process of the development of an IEP, requiring that the IEP be developed jointly by appropriate school officials, the student’s teacher, the parents/guardian, and where appropriate the student. 20 U.S.C. § 1400 et seq. The IDEA also emphasizes the importance of parental involvement and cooperation in decision-making regarding the educational needs of the student. See Florence Cnty Sch. Dist. Four v. Carter ex rel.

Carter, 510 US 7, 16 (1993) (Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable); JS

v. Scarsdale Union Free Sch. Dist. 826 F.Supp2d 635 (SDNY 2011) (among the most important of these relevant facts is “whether the parents have cooperated with the District throughout the process to ensure their child receive a FAPE.”)

With respect to prong one, the District did not attempt to defend the IEP.

Evidence is undisputed that had been struggling during kindergarten. The team had an evaluation which recommended a small class size. I find that that the DOE failed to provide a FAPE to during the 2019-20 school year. I find that they did not meet their burden under prong one.

With respect to prong two, the evidence is undisputed that provides with the small class and supports that he requires to make progress. DOE points out that the school is restrictive but as pointed out during cross-examination students are able to return to a general education program. provides individualized instruction with groups of students who have like needs. I find that provides with instruction and supports that enabled him to make progress both academically and emotionally. I find that the is appropriate. I find that the parents met their burden under prong two.

With respect to prong three DOE points out that the parents waited over a year to provide the evaluation. The parent explained that they had hoped to have remain at his prior placement. It is true as also pointed out by the DOE that the parent did not advise DOE that they were placing at until months after signing the contract. The parent explained that they were able to be relieved from the contract if the DOE had offered an appropriate program. Parent testified that although school had begun it had only been one day and they would have considered a program from the DOE. The fact is that the DOE did not offer an appropriate program. I have no reason not to credit the parent’s testimony. The parents did provide the required statutory notice of their intent to place the student at . I find that the equities do not preclude the parent from receiving relief.

ORDER

The DOE shall reimburse the parents for tuition at for attendance during the 2019-20 school year upon evidence of contract and payment.

Sharyn Finkelstein Esq. July 27, 2020

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the PublicSchool 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.

EVIDENCE ENTERED INO RECORD

DEPARTMENT OF EDUCATION DATE PGS

A Due Process hearing Request November 1, 2019 7 B Notice of Placement

Ten-day Notice August 21, 2019 4 C Neuro-psychological evaluation August 15, 2019 26 D Enrollment Contract February 14, 2019 7 E Daily schedule 2019-2020 1 F Midyear Report 2019-2020 2 G Mid-year Speech and language report 2019-2020 2 H Mid-year Occupational therapy 2019-20 3 I End of year report June 19, 2020 14 J End of year speech and language report 2019-2020 2 K Occupational therapy report 2019-2020 2 L Distant Learning Plan March 20, 2020 2