New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 548794 - NYC: 205221

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Case Number 205221

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing January 4, 2023

January 31, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close February 7, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2023

FOR THE STUDENT

REDACTED Attorney

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2023

FOR THE STUDENT

REDACTED Attorney

REDACTED Attorney

REDACTEDD Parent

REDACTED Principal and Executive Director REDACTED

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Section 504 of the Rehabilitation Act, concerning the special education of REDACTED(hereinafter referred to as “Student”) for the 2020-2021 school year.

The parties moved to extend the compliance date on several occasions for settlement purposes and eventually for witness availability. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need for extensions was greater than any delay in the resolution in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on February 7, 2023.

BACKGROUND

Student is REDACTED old and classified with multiple disabilities.

Student has attended REDACTED since kindergarten.

Student is developmentally delayed across all domains. She uses a REDACTED. Student has been diagnosed with epilepsy. She has a visual impairment and profound hearing loss. She has asthma. Student requires close monitoring with eating to prevent aspiration. She has some negative behaviors which require close monitoring. Student requires help in all areas of daily living. (Tr. 111)

Student requires a two person transfer to go safely from one place to another. Student has difficulty with self-regulating and requires significant adaptations in the class to keep her engaged. Student requires different types of technology for communication access. (Tr. 112)

On June 11, 2020 an IEP meeting was held and they recommended a 12:1:4 class. (Exhibit D) Parent disagreed with the recommendation. She opined that the class size was too large. She opined that Student required more than thirty -minute related service sessions. (Tr. 128) Parent sent a Ten- Day notice. (Exhibit B)

Parent received a school location letter at the end of June. (Tr. 129) Parent emailed the recommended school. Parent received no response and could not visit because of COVID. Parent did research online. Parent determined that the recommended placement was not able to meet Student’s needs. Parent sent a school placement rejection letter. (Exhibit C)

Parent re-enrolled Student at REDACTED for the 2020-2021 school year. Parent signed a non-refundable contract with REDACTED. (Exhibit F) Parent is responsible for the terms of the contract. (Tr. 124) Parent paid a non-refundable deposit and could not afford to pay the balance. (Exhibit G)

Parent filed a due process complaint to obtain reimbursement and direct funding for any balance of Student’s tuition at REDACTED. Parent also requested reimbursement for the cost of Student’s breakfast and lunch during the twelve-month school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by REDACTED. They did not submit any evidence or produce any witnesses. They conceded prong one. (Tr. 98) They argue that request for tuition at REDACTED should be denied of Parent’s failure to consider other schools.

PARENTS’ CASE

The Parents was represented by their attorney REDACTED. It is their position that DOE failed to provide Student with a FAPE for the 2020-2021 school year. It is their position that REDACTED was appropriate and equities favor Parent. It is their position that Parent is entitled to reimbursement for the cost of breakfast and lunch during the twelve-month school year.

They submitted evidence and had several witnesses in support of their position. They submitted a brief. (IHO I)

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 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 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).

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 receive an appropriate educational benefit from the program. The Second Circuit framed the 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 adequate related services to meet the child's needs)

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 either their IEP or recommended placement. They “waived its right to a Prong 1” (Tr. 98) Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. Parent testified that the recommended school was not wheelchair accessible and was too large for Student. Witness testified as to Student’s need for sixty -minute therapy sessions. Student requires extended processing time and breaks within the therapies, a lot of redirection, support and repetition. (Tr. 121) DOE did not dispute any of the allegations. I find DOE did not meet their burden under prong one. I find DOE failed to provide a FAPE to Student for the 2020-2021 school year.

With respect to prong two, Student attended REDACTED during the 2020-2021 school year. The principal and executive director provided testimony. Witness was very familiar with Student. She met with Student’s team on a regular basis to discuss her progress and goals and needed adaptations and modifications. (Tr. 111)

All the students are severely disabled with some type of traumatic brain injury. Their students all have mobility issues, and most are nonverbal communicators who use some type of augmentative communication device. (Tr. 107)

Their curriculum is geared for students with multiple disabilities. They use a specific math, science and social studies curriculum that is geared for student with multiple disabilities.

They have music therapy, art classes and interactive sessions to help Student self-advocate. (Tr. 108)

They are a 12-month school. All of the teachers are certified in their respective fields. All of the therapists are certified and licensed in New York State. (Tr. 109)

Student was in a 6:1:1 class. She had her own paraprofessional. Student requires different types of technology for communication access. They modify her environment which is geared specifically for her to allow her space and time to process everything. (Tr. 113)

School was remote from July through September. Their sessions included academics and therapy which were done remotely via Zoom. At the end of September, they moved to a hybrid model. Student resumed in person learning. She was in school one to two days a week and remote on alternate days. In April 2021 she joined school in person five days a week. (Tr. 113-114)

Student had assistive technology program built into her school day which enabled her to access the work. Student received vision therapy ,hearing services, Speech and language, occupational and physical therapy. (Tr. 115) Related services are provided in 60-minutes sessions. (Tr. 121)

They monitor progress continuously throughout the school year based on formal and informal observation and testing. They change interventions based on needs of Student. (Tr 110)

Student made progress in all of her academic goals. (Tr. 115)

Student has cortical visual impairment and has made progress with vision. (Tr. 116-117)

Student has bilateral sensorineural hearing loss. They worked on processing the content which was paired with sign language. Student made progress. (Tr. 118)

In speech sessions, Student used a variety of different communication devices. She worked on expressive and receptive language using her AAC and assistive technology. (Tr. 119)

In occupational therapy, they worked on Student’s general engagement goals and academics. Student made progress with using classroom materials for their intended purpose. She increased her attention and participation. (Tr. 119)

They worked on daily living skills including eating skills and dressing. (Tr 120) In physical therapy they worked on her walking between school and different locations . She was able to walk around the school. She learned how to independently transition from sitting to standing. (Tr. 121)

They modify and adapt all materials for students who have visual impairments. (Tr. 105)

Parent described Student’s progress.

I find that REDACTED provided Student with the small class that she required to make progress. They provided her with hour-long sessions of physical therapy, speech therapy as well as vision services, hearing services and feeding therapy to address her individual needs. Evidence is undisputed that Student progressed in various areas during her year at REDACTED. Evidence establishes that they individualize Student’s program to meet her needs. Student was able to access remote instruction I find that REDACTED met Student’s educational needs and allowed her to make progress.

DOE suggests that Parent should have looked at other schools in addition to REDACTED.

They point out that Parent did not visit the school. There were no visits during COVID. Parent explained that Student had already attended REDACTED during the prior year. It is the DOE’s burden to provide an appropriate school. Student had already attended REDACTED during the prior year and had made progress. (Tr. 139) It is unclear what the DOE expected Parent to do with respect to securing a placement. I find Parent’s decision to re-enroll Student at REDACTED was appropriate. I find evidence establishes that REDACTED continued to be an appropriate placement during the 2020-2021 school year.

With respect to the equities, there is nothing in the record that would prevent Parent from obtaining the requested relief.

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)

I find that Parent is entitled to direct funding.

In summary, I find DOE did not provide a FAPE to Student for the 2020-2021 school year, REDACTED was appropriate and conferred an educational benefit to Student and the equities the Parent.

REQUEST FOR REIMBURSEMENT FOR MEALS DURING THE 12-MONTH SCHOOL YEAR 2020-2021 School Year

Section 504 of the Rehabilitation Act protects students from discrimination on the basis of disability, providing that “no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794(a) (2019). To show a violation of Section 504, “a plaintiff must show that he or she (1) has a disability; (2) is ‘otherwise qualified’ for the benefit that has been denied; and (3) has been denied the benefit by reason of the disability.” C.D. v. N.Y.C. Department of Education, No. 05 Civ. 7945, 2009 WL 400382, at * 4 (S.D.N.Y. Feb. 11, 2009) (internal citations omitted). (Ex. W).

As Parent points out in her brief, it is undisputed that Student has a disability within the meaning of Section 504. Student has an IEP with a classification of multiple disabilities.

REDACTED does not provide breakfast or lunch. (Tr. 132) Parent provided breakfast and lunch to student during periods of remote and in person instruction. (Tr. 133, 135) Student’s breakfast consisted of a PediaSure, fruit and yogurt. Lunch consisted of another PediaSure, juice, baby food, oatmeal and rice. (Tr 133) Parent testified and submitted evidence of spending approximately $12.00 a day for meals. (Exhibit K)

New York City provides free breakfast and lunch “to all students in every New York public school.” (Exhibit T)

Student would have been entitled to free breakfast and lunch had she attended public School. I find Parent had no choice but to unilaterally place Student because of DOE’s failure to provide Student with a FAPE. I find that Parent is entitled to reimbursement for the cost of breakfast and lunch during the 2020-2021 school year.

Student attended REDACTED for 177 school days during the 2020-2021 school year. (Exhibit I)

I find Parent spent approximately $2, 124.00 for breakfast and lunch.

ORDER

DOE shall reimburse Parent for her $100 tuition deposit and directly fund any remaining balance for the cost of Student’s attendance at REDACTED for the 12-month 2020-2021 school year upon evidence of contract, payment and attendance.

DOE shall reimburse Parent for the cost of breakfast and lunch for the 12-month 2020-2021 school year in the amount of $2, 124.00.

February 11, 2023

Sharyn Finkelstein Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of receipt of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and with 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EVIDENCE ENTERED INTO RECORD

PARENT

Exhibit	Document	Date	Pages
A	Amended impartial hearing request	2/26/2021	7
B	Ten-day notice	6/12/2021	7
C	School placement rejection letter	7/17/2020	2
D	IEP	6/11/2020	30
E	REDACTED program description 2021	9/2/2020	18
F	REDACTED enrollment contract	6/12/2020	5
G	REDACTED tuition deposit	6/9/2021	1
H	REDACTED remote learning schedule	undated	1
I	REDACTED attendance log	undated	1
J	REDACTED quarterly progress report	2021-2022	8
K	REDDACTTED recommended IEP	4/20/2020	18
L	Annual hearing education evaluation	1/25/2021	3
M	Occupational therapy evaluation	1/15/2021	7
N	Physical therapy evaluation	1/15/2021	4
O	Annual speech pathology evaluation	1/5/2021	7
P	Functional vision assessment CDI range	11/27/2020	4
Q	REDACTTED educational evaluation	6/19/2021	7
R	Pendency Agreement	1/26/2021	2
S	Parent Public assistance budget letter	1/21/2022	3
T	Preschool lunch for all press release	9/6/2017	3
U	Meals received	6/14/2021	2
V	Impartial findings of fact and decision 193890	1/7/2021	11
W	CDV NYC Department of Education	Undated	13
X	Impartial hearing findings of fact and decision 136871	4/30/2012	10
Y	7 CFR Section 245.2	Undated	35
Z	Federal wages number 12	1/17/2020	2

IHO

Exhibit	Document	Date	Pages
I	Parent supplemental brief		4