New York City Department of Education, Impartial Hearing Decision

FINAL DECISION

Case Number 191331

Student’s Name

District

Hearing Requested By Parent

Date of Hearing May 29, 2020

June 17, 2020

July 24, 2020

August 17, 2020

August 21, 2020

Hearing Officer Sharyn Finkelstein Esq.

Record Close August 26, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2020

FOR THE STUDENT

None

FOR THE DEPARTMENT OF EDUCATION

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2020

FOR THE DEPARTMENT OF EDUCATION

Attorney

FOR THE STUDENT

District Representative

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

FOR THE STUDENT

Attorney

Parent

FOR THE DEPARTMENT OF EDUCATION

District Representative

Special Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2020

FOR THE STUDENT

Attorney

Psychologist

Program Coordinator of

Director of

FOR THE DEPARTMENT

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2020

FOR THE STUDENT

Attorney

Parent

FOR THE DEPARTMENT

No appearance

\

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)”. The case went forward on July 24, 2020 and was concluded on August 21, 2020. ^[1]

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 August 26, 2020.

BACKGROUND

is a student who is classified with a learning disability.

On May 16, 2019 an IEP meeting was held for the 2019-20 school year. The team recommended general education with SETSS three times a week and counseling. The parents disagreed with the recommendation and continued to unilaterally place her at . They bring this hearing for tuition reimbursement and direct funding for any balance.

DEPARTMENT’S CASE

The DOE was represented by Judi Marie Marra on the first day or hearing.

appeared on the second day of hearing. It is their position that they offered a FAPE to for the 2019-20 school year. They maintain that the IEP met all the procedural requirements and the placement would have been able to meet the student’s needs. In summary it is their position that the request for tuition should be denied in its entirety.^[2]

is employed at Committee on Special Education. She has a master’s degree in education and a bachelor’s degree in special education. She is in charge of working with hearings and IEPs.

She attended the IEP meeting that was held for on May 16, 2019 as dual role as district representative and special educator. The team included a psychologist, the parent and a representative from the school where the student attended. They developed an IEP. (Exhibit 1) They recommended to receive SETSS once a week in ELA and twice a week in math as well as counseling once a week on an individual basis. She could not recall any disagreement. (Tr. 21-29)

On cross-examination she acknowledged that she has never met and at the time of the meeting there was no classroom observation.

In response to my question she stated that they took into consideration the psychoeducational evaluation and teacher input and a teacher progress report.

PARENTS’ CASE

The parents were represented by their attorney . It is their position that the DOE failed to offer a FAPE for the 2019-20 school year and that the unilateral placement at is appropriate. They maintain that the equities favor the parents. and they are entitled to tuition for ’s attendance at during the 2019-20 school year. It is their position that tuition should be granted in its entirety in the form of reimbursement and direct funding for the balance. ^[3]

DR. is in private practice and conducts

psychoeducational or neuropsychological evaluations. (See background and credentials

Tr. 66-68) She does a comprehensive evaluation of a child’s function across the board, academic, cognitive, memory, language and executive functioning. She evaluated in February of 2018. (Exhibit B) She described her as very social but a student who did not feel good about herself in the academic realm. When doing academic work, she became anxious insecure and highly defensive. She described as a very complicated child. She worked with her for an additional four sessions. The DOE had done an evaluation about a month prior on January 21. She added subtests to the cognitive testing. She used the Kaufman Test of Educational Achievement, the qualitative Reading Inventory, and a test for Language Development.

She compared her findings with that of the DOE evaluation. In summary she disagreed with the DOE’s characterization of ’s academic delays. She opined that the report was “quite useless”.

She explained that has potential to learn. She explained that the most important thing was for to be able to stop being so defensive, to acknowledge the deficits without feeling devasted. She explained that needed to believe in herself and she opined it would not happen without significant intervention.

She knew of the program and thought it was a good fit for . It is small and individualized. She described them as “psychologically aware” There is an emphasis on reading and they can provide individualized, warm, nurturing and specialized program that requires. (Tr. 66-94)

has a master’s in special education and is the coordinator of . She makes sure that a student meets their IEP goals, and all the staff members work in coordination and are in touch with the parents. She described as a program for learning disabled children. They are a mainstreamed school. They have self-contained classes in the mainstream school so that the children are exposed and have opportunities for mainstream. The teachers are special education teachers and they have a speech and language pathologist, occupational therapist and guidance counselors on staff. They usually have eight to ten children in a classroom. There is constant communication with the parents.

She described as a very charismatic girl who is socially popular. She is easily able to camouflage her learning disabilities because of her very sophisticated language. She is unable to manipulate information and apply it to the next things she is learning. She does not ask for help. It is challenging to understand her weaknesses and get her to slow down and accept what she needs.

needs to learn in a small group because she needs everything very scaffolded, a lot of chunking and a lot of redirection. They constantly look to see if she understood something. She can get the material but cannot apply it.

Socially and emotionally is very together. She is very popular. They had put her in mainstream because she wanted to connect with the kids and socially, she did great. She could barely focus on more than one thing. Academically there is such weaknesses.

is in a class of seven student with a teacher and assistant. She has small groups and she is pulled out for speech and language and counseling. She is mainstreamed for social purposes. As students can handle an academic subject, they can put them into the larger class with a lot of backup and a lot of support.

In terms of her concrete ability to “spit back”’ is very strong. Her issues come out in math and her computational skills, in her reading and her ability to decode.

She has a difficult time with long term memory and .problem solving. Reading is a weakness. She needs to be redirected in order to stay focused.

She has made a year of progress in reading and math. She has improved in terms of her ability to tackle information, manipulate information and stay grounded and learn more successfully. She attributed it to a small class. sees a counselor twice a week.

was terrific with remote learning when the schools were closed.

In response to my question she stated that the small class, the special education materials and tremendous support help her succeed. They work closely with the parents.

They follow mainstream curriculum but bring in their own texts and supplements. A half hour a day is spent on prayer. (Tr. 94-119)

DR. is the director of and supervises all the educational programs, plan staff development, interviews all perspective students, and is involved with the contractual obligation and the financial end of student’s obligation in tuition.

was a student during the 2019-20 school year. The tuition was $46, 000.

The parents have made some payments and are obligated to pay the full tuition. (Tr. 120-121)

is ’s mother. She is a clinical director at an evaluation agency. is thirteen years old and about to go into the ninth grade.

She described her as struggling and failing in the past. She described the difficulty because she has strengths, and a huge personality but she was failing. She had low self -esteem that got worse and worse and she was failing. She did not feel good about herself and it got worse with time as the academic demands grew. She explained that there was a gap between what she was capable of doing and what she was doing.

She attended the IEP meeting. They initiated evaluations. She could not.

recall much about the meeting.

She described as a “mess” and that she had given up at school and completely unmotivated. She was extremely difficult at home. She was under a lot of stress.

Her biggest concern was that she was not doing well academically She described as doing so much better. She described the difficulty for them to place her at but she needed the support. She is much more confident now. She can admit she struggles academically and needs help. She feels safe and she is much stronger in who she is and understanding her strengths and weaknesses. (Tr. 123-126)

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 DOE presented one witness who spoke in general terms and not specific to . There was testimony and evidence as to what was recommended and what documents were available at the meeting. It is unclear whether they considered the independent psychoeducational evaluation. There was testimony from that the psychoeducational evaluation from the DOE was of little value and did not represent ’s level of performance. There was absolutely no evidence as to how the DOE arrived at the recommendation or any specifics as to how the documents, they relied on resulted in their recommendation. Evidence from the parent establishes that could not make progress in a mainstream environment with SETSS. She had been struggling and required much more support. I find that the IEP was not individualized to meet ’s individual needs. I find that the DOE did not provide a FAPE to for the 2019-20 school year. I find that they failed to meet their burden under prong one.

With respect to prong two the evidence establishes that provides with the type of environment that she requires in order to make progress. The evidence is undisputed that she has made progress not only academically but in her self-confidence and better understanding of herself. She has opportunities in the mainstream environment to socialize. She has the small class size that she requires for academics. She has related services of speech and language and counseling. The evidence is undisputed that she had made progress on an emotional level and is comfortable with herself. I find that is appropriate. I find that the parent met their burden under prong two.

With respect to prong three there is nothing in the equities that would prevent the parents from full relief.

In the due process complaint and during the hearing the relief requested was for direct funding. In the parent’s closing the request for tuition was characterized as reimbursement. I will address the issue of direct funding in order to have a complete record. There were no tax returns submitted. Parent testified that her husband handles finances. She opined that their finances were over 150,000. Her husband is a principal of a school. I scheduled a date a few days later for the father to testify as to the finances.

(Tr. 126-141) The father declined to testify. I find that the parents did not establish need for direct funding.

ORDER

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

Sharyn Finkelstein Esq. August 26, 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

PARENT DATE PGS

A Due Process complaint December 4, 2019 2

B Psychoeducational evaluation March 11, 2018 9

C IEP August 8, 2018 15

D Prior Written notice August 9, 2018 3

E progress report 7th grade May 14, 2019 2

F Ten-day letter August 22, 2019 3

G Enrollment contract September 5, 2019 1

H class schedule 2019-20 1

I academic program 2019-20 1

J progress report 8th Grade April 30, 2020 2

K remote Learning Plan 2019-20 2

L Final Attendance report June 14, 2020 1

M withdrawn

DEPARTMENT OF EDUCATION

I IEP May 16, 2019 15

2 Attendance Page May 16, 2019 1

3 Psychoeducational evaluation January 21, 2018 7

4 Prior written notice of

Recommendation June 10, 2019 4

5 School location letter June 10, 2019 2

6 Minutes Of CSE Meeting May 16, 2019 2

Footnotes

[1] DOE was given until August 26 to submit written statement

[2] On the day of hearing when DOE presented their case. DOE representative was notified that a witness from the recommended school could be available. The purpose of the witness would be to show that they could implement the IEP. After considering both parties positions, I found that the testimony would not be relevant. The witness is the principal of the recommended school and had no knowledge of the student and no involvement with the IEP meeting. (Tr. 48-53)

[3] In closing the parent requested reimbursement