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FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 7, 2022
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Interpreter
For the Department of Education:
REDACTED Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 7, 2023
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Interpreter
For the Department of Education:
REDACTED Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9. 2023
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Associate Head, REDACTED
REDACTED Interpreter
For the Department of Education:
REDACTED District Representative
I was appointed to conduct an impartial hearing pursuant to the Individuals with Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED for the academic year of 2020-2021.
The Parties moved to extend the compliance date on several occasions in the light of possible settlement in federal court, and ultimately for preparation for hearings and submission of briefs. 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. [1]
Attached to the record are lists of persons who appeared and evidence submitted into the record. The record was closed on March 24, 2023.
PROCEDURAL HISTORY
This matter was originally filed on July 1, 2020 under case number 195261 for the 2020-2021 school year. The due process complaint was ultimately dismissed without prejudice. Parent filed a notice of intent to appeal to the State Review Officer. (SRO)
Parents refiled the due process complaint for the 2020-2021 school year, which was assigned hearing number 204743. A hearing officer was assigned for pendency purposes and submitted a pendency decision. The Parents also appealed the pendency discission to the SRO.
SRO affirmed the decision and dismissed the appeal and cross-appeal. Parent subsequently filed a Federal complaint on May 28, 2021. (Tr 92-100)
BACKGROUND
Student was diagnosed with Autism Spectrum Disorder at [REDADTED] years of age. (Exhibit P)
Student had attended REDACTED since REDACTED grade. He is currently in REDACTED grade.
On January 8, 2020 an IEP was developed which recommended placement in a twelve month 12:1+1 District 75 classroom. (Exhibit S)
There is no evidence that Department of Education (DOE) ever recommended a placement.
Parent disagreed with the program. They submitted a 10- day notice and advised DOE of their disagreement with the program, the lack of a placement and their intent to re-enroll Student at REDACTED. They advised of their intent to request funding. (Exhibit I)
DOE acknowledged receipt of the ten -day notice. (Exhibit J) There is no evidence of any response.
Parent re-enrolled Student at REDACTED on May 13, 2020 for the 12- month 2020-2021 school year. (Exhibit G)
Parent filed a due process complaint on December 8, 2020 to obtain tuition reimbursement/funding for Student-s attendance at REDACTED for the twelve -month 2020-2021 school year with door- to- door transportation. (Exhibit A)
Student had a neuropsychological assessment that was conducted on several days, from October 2020 through February 4, 2021. The evaluation details Student's issues. He was diagnosed with multiple diagnoses. Evaluator recommended a structured learning environment in a nonpublic or private specialized school. (Exhibit P)
DEPARTMENT OF EDUCATION'S CASE [2]
The DOE was represented at the hearing by REDACTED. They did not present any witnesses or submit any evidence. It is their position that Parent failed to meet their burden of establishing that REDACTED is an appropriate placement. They argue that the equities favor the DOE. They submitted a closing brief. (Exhibit I))
PARENTS' CASE
Parents were represented by their attorney REDACTED. It is their position that the DOE did not offer a FAPE to Student for the 2020-2021 school year. They maintain that the unilateral placement at REDACTED was appropriate and that the equities favor Parents. It is their position that they are entitled to direct funding for Student's attendance at REDACTED for the 12-month 2020-2021 school year as well as door to door transportation to and from REDACTED. They had II)
FINDINGS OF FACTS 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 of 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 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).
The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child's special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the Parent's claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter. 114 S.Ct. 361[1993]). The parent must prove that the student will legal standard for the second prong in Frank G. v. Board of Education 459 F. 3d 356 (2d Cir.
2006) and Gagliardo v. Arlington Central School District. 489 F.3d 105 (2d. Cir. 2007). Under Frank G the Court held that "to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize the student's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handclapped child, supported by such services and are necessary to permit the child to benefit from instruction" (Id.).
With respect to prong two, 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 SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide
Courts consider the "totality of the circumstances" and 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." Frank G., 459 F.3d at 364-65; 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 least restrictive environment")
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 374.
New York courts consider whether the parent has "failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE" and whether the parent attended IEP meetings and school visits, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011). under the IDEA, Burlington supra at 471 U.S. At 374.
With respect to prong one, the DOE did not put on any witnesses to defend an IEP or placement. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. DOE did not dispute any of the allegations. I find that the DOE did not provide a FAPE to Student for the 2020-2021 school year, I find that the DOE did not meet their burden under prong one.
With respect to prong two, the Associate Head at REDACTED provided testimony. (Exhibit R) DOE points out that Witness had never personally worked with Student or had never been his teacher. (Exhibit !)
Witness had interactions with Student's teachers and had reviewed all his reports. She was aware of Student's various diagnoses which she described as common for students who attend REDACTED. Staff is trained and accustomed to working with students with his diagnoses.
I find that Witness had sufficient familiarity with Student to provide relevant and credible testimony.
Student was in a class with eleven students, one head teacher, one assistant teacher and one paraprofessional. He was grouped in classes with students of similar age, academic functioning levels, social skills and their overall need for support.
Student attended remotely and received daily live instruction over Zoom as well as asynchronous instruction through Seesaw and Google Classroom. Student received individual instruction within small groups. They provided him with supports and strategies to enable him to progress.
Witness opined that Student requires a twelve -month program to prevent substantial regression over breaks.
Student had a daily schedule and received related services of speech and language therapy, occupational therapy, and counseling, during the adaptive skills program.
Individual goals are established in the summer and re-assessed in the fall.
Progress reports are issued during the school year and in the summer, (Exhibits L, M, N) Witness was familiar with Student's progress.
Student's transition needs were supported through an Internship program, vocational skills program and adaptive skills coursework which covered independent living and vocational interest development.
Student received art, drama. and music therapy DOE argues that Parent "merely provided anecdotal evidence" of Student's progress. Parent submitted evidence of progress reports. (Exhibits L, M, N). ) I find that REDACTED School provides the type of environment that was recommended by the evaluator of the neuropsychological.
I find that Witness provided detailed testimony describing how REDACTED addressed Student's needs and provided him with supports to enable him to make progress.
I find that the testimony and documentary evidence establish that REDACTED provided Students with the type of structure and support that he required to make progress. I find that REDACTED addressed his academic, social and vocational needs. I find that Student did make progress.
Student had attended a twelve-month program for several years. DOE presented no evidence to dispute his continued need for a twelve-month program. I find evidence establishes that Student requires a 12- month program in order to avoid regression.
I find REDACTED was appropriate for the 2020-2021 school year. In this case, Parents were familiar with REDACTED because of Student's attendance for the past several years. I find that REDACTED was reasonably calculated to enable Student to receive educational benefit. I find that Parents met their burden under prong two.
With respect to prong three, DOE argues that it can be inferred that Parents had no interest in securing the DOE IEP or placement.. (Exhibit 1) I find that it is pure speculation what the Parents would have done had the DOE offered a placement. Parents were not even offered another placement from the DOE for them to consider for the 2020-2021 school year. Student had already attended REDACTED for several years and had made progress.
There is absolutely no evidence that Parents did not cooperate with or impeded the DOE from offering a FAPE to Student. Parents attended the IEP meetings and were willing to visit a recommended placement. Parents sent a ten-day notice advising of their concerns and intent to enroll Student at REDACTED.
I find nothing in the record that would bar Parents from obtaining full relief. I find that the equities favor Parents.
Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805- 806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)
Parent testified that that she and her husband could not afford the tuition for Student's placement at REDACTED for the 2020-2021 school year. They have not made any payments. (Exhibit Q) I find that Parents are entitled to direct funding.
REQUEST FOR TRANSPORTATION
Under New York State Education law § 4402(4)(d), the Department is required to provide transportation up to a distance of fifty miles to and from a nonpublic school if the Committee on Special Education ("CSE") or School Based Support Team ("SBST") has identified the student as requiring special education services, and if the student attends the nonpublic school for the purpose of receiving services or programs similar to those recommended by the CSE/SBST. Furthermore, the IDEA requires school districts to provide related services, including transportation, "as may be required to assist a handicapped child to benefit from special education." 34 C.F.R. § 300.24.
Parent testified that Student requires door to door transportation in order to remain safe. She alleged that on multiple occasions the DOE as well as Student Doctors and providers all agreed that Student requires door to door transportation. (Exhibit Q) Parents submitted a recommendation from a physician for Student to receive door-ot-door busing on a fifty-two week basis. (Exhibit V) DOE had already provided said transportation for several prior years. (Tr 44)
I find nothing that would indicate that Student no longer requires transportation.
In summary, I find that the DOE failed to provide a FAPE to Student for the 2020-2021 school year, REDACTED School was appropriate for the 2020-2021 school year on a twelve-month basis, and the equities favor Parents. I find that Student is entitled to door to-door transportation to and from REDACTED. I find and Parents are entitled to direct funding.
ORDER
DOE shall reimburse Parents and directly fund any remaining balance for Student's attendance at REDACTED for the 2020-2021 twelve-month School year upon evidence of payment, contract and attendance.
DOE shall provide door to door transportation to and from Cooke. [3]
March 25, 2023 Sharyn Finkelstein
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent 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.
EVIDENCE ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION
No Evidence
PARENT [4]
A Impartial hearing request with cover sheet 12/8/2020 10 pgs
B Notice of intention to seek review and case
Information sheet re: 195261 11/23/2020 1
C Corrected order of dismissal 195261 11/20/2020 2
D. Transcript 195261 11/8/2020 (30 pages)
E FOFD 190214 9/14/2020 3
F Impartial hearing request with cover
Sheet, updated pendency program form 7/1/2020 11
G REDACTED and REDACTEDD
2020-2021 reenrollment contract 5/13/2020 3
H. Email re: submission of TDN Pendency form 6/16/2020 (1 page)
I. TDN pendency form 6/16/2020 (2 pages)
J. NYC DOE email acknowledging receipt of TDN 7/8/2020 (1 page)
K. REDACTED and Institute 20/21 reopening plan 8/24/2020 (23 pages)
L. REDACTED School and Institute progress report 2/5/2021 (20 pages)
M. REDACTED progress report 6/18/2021 (20 pages)
N. progress report undated 2020 (6 pages)
O REDACTED school program description undated 5
P. Neuropsychological evaluation report undated (27 pages)
Q. Affidavit of REDACTED 2/2/2023 (1 page)
R. Affidavit of REDACTED 2/2/2023 (8 pages)
S. IEP 1/8/2020 (1 page)
T. IEP attendance page 1/8/2020 (1 page)
U. IEP 10/26/2020 (36 pages)
V. OSH physician review form for transportation 10/29/2020 (2 pages)
IHO
I DOE Closing Brief 3/14/2023 6 II Parents' Post-Hearing Brief 3/14/2023 14
Footnotes
[1] Parents had initially requested an opportunity to try and engage in settlement negotiations with the law department at the federal court level which includes this case. Parents' attorney requested that it should "be paused" at the administrative level. (Tr. 106) Department of Education (DOE) did not object and joined in with the initial request and subsequent requests at each conference and proceeding for an extension. In the interest of giving Parents the opportunity to settle in federal court, I granted numerous extensions. At some point it became obvious that the matter in Federal Court could continue for a very extended period of time. My role as an IHO is to move a case forward. Parents' attorney had filed a due process complaint and ultimately, I advised parties the case had to go forward. My role is not to hold a case while case is pending in Federal Court.
[2] Other representatives appeared at status conferences two witnesses. They submitted evidence and a closing brief in support of their position. (Exhibit 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.§ receive an appropriate educational benefit from the program. The Second Circuit framed the adequate related services to meet the child's needs)
[3] The issue of transportation for the 2020-2021 school year is moot, however, I included it in the order for Parents to have a complete order.
[4] Exhibits A-F were submitted into evidence by a prior hearing officer