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NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 15, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
No Appearance
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 14, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 5, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTEDD District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 6, 2023
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Principal and Program 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), concerning the special education of REDACTED (hereinafter referred to as "Student") for the 2019-2020 school year.
The parties moved to extend the compliance date on several occasions initially for potential settlement and then for witness availability. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need for one extension 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 15, 2023.
BACKGROUND
Student is classified by the DOE as a student with other health impairment.
On March 27, 2019 an IEP was developed for Student's 2019-2020 school year.
Team recommended an ICT class with related services and additional SETSS services in a community school.
Parent had concerns with the program and sent a letter to the CSE. (Exhibit B)
Parent received a placement at REDACTED School.
Parent visited the school. He determined it was too overwhelming an environment for Student. He opined that Student would not receive enough individual attention. (Tr. 90).
Parent sent a letter to the CSE about his concerns. He received a response but it did not address any of his concerns. (Exhibit C, Tr 90)
Parent enrolled Student at REDACTED Program at REDACTED (REDACTED) for the 2019-2020 school year. (Exhibit D)
Parent filed a due process complaint to obtain direct funding for Student's attendance at REDACTED with a reduction for the religious portion of the curriculum. (Exhibit A)
DEPARTMENT OF EDUCATION'S CASE
The Department of Education (DOE) was represented by various individuals. REDACTED represented DOE on the final two days. They did not put on a case or submit any evidence. (Tr.
35) They did cross-examine Parent's witnesses. It is their position that REDACTED would have been an appropriate placement. (Tr. 109-110) They also argue that Parent could have paid the tuition. In summary, it is their position that tuition should be denied in its entirety.
PARENT'S CASE
The parent was represented by various individuals. REDACTED appeared as attorney for Parent on the final day of hearing. It is their position that the DOE failed to offer a FAPE to Student for the 2019-2020 school year. They maintain that REDACTED was appropriate for the 2019-2020 school year. They submitted documents and presented witnesses in support of their claim. It is their position that Parent is entitled to direct funding for Student's attendance at REDACTED for the 2019-2020 school year.
FINDINGS AND CONCLUSIONS
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 their IEP or placement. They did not present witnesses. (Tr. 51). Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. DOE did not dispute any of the allegations. Parent's witness who had familiarity with ICT classes opined that Student would not have done well in that setting. (Tr. 79) I find that DOE failed to provide a FAPE to Student for the 2019-2020 school year. I find that the DOE did not meet their burden under prong one.
With respect to prong two, the principal and program director of REDACTED provided testimony. (Tr. 62-79)
REDACTED School program is a special education program tracked within a regular education environment. The core subjects are all self-contained and Students are on track for diplomas. They provide related services of speech and counseling. (Tr. 65)
All the related service providers are licensed and certified. The staff participates in professional development. (Tr. 66-67)
Student was in REDACTED grade during the 2019-2020 school year. She is an intelligent girl with specific academic delays. She is highly anxious and afraid of failure. (Tr. 67-68)
Student was in a class with between six and seven students. All the students had similar academic and social needs. (Tr. 68)
Witness described Student's needs in various subjects including reading, writing and math and science. She described the supports they provided and the progress Student made. (Tr. 69-72)
Student had mainstream opportunities. All of the extracurricular activities were mainstreamed. (Tr. 73)
Student received speech therapy and counseling. They worked on verbal expressions, executive functioning, and writing skills. (Tr. 74)
In counseling they worked on Student's anxiety. Student required a lot of support socially. (Tr. 75)
Witness opined that Student made social and emotional progress by the end of the school year. She was more open to being mainstreamed. She was more talkative with the staff. Parents reports that she was happier. (Tr. 75)
Student participated in remote learning due to COVID -19 and (Exhibit H) She did fantastic. She received support from home. (Tr. 78)
All goals are aligned between related service providers and teachers. (Tr. 78)
Witness opined that Student made the most progress emotionally. She opined that REDACTED met Student's needs.
Student had academic delays in writing, language arts, reading and comprehension. Witness explained that Student made a huge leap forward because of the emotional support that she received. (Tr. 79)
Witness opined that the small class size, the counseling, and the modified curriculum all contributed to Student's progress. (Tr. 83)
Parent opined that Student made a lot of academic progress. (Tr. 85) Student had academic and emotional areas of need. She had tics, she was bullied and it set her back academically. In ninth grade she began to show enthusiasm to go to school. She made friends and progressed. (Tr. 86)
She had less anxiety and greater academic skill. (Tr 90)
Parent was concerned about the emotional and socialization skills more than the academic. (Tr. 91)
I find that evidence is undisputed that REDACTED provided Student with small class size and supports that enabled her to be less anxious and feel more comfortable, which led to academic progress.
I find that Parent met their burden under prong two.
With respect to prong three, Parent advised the CSE on more than one occasion of their concerns with the recommended placement and program. Parent was in communication with the recommended placement. I find no evidence of Parent's interference with DOE's ability to provide a FAPE.
In summary, I find DOE failed to provide a FAPE to Student for the 2019-2020 school year, REDACTED was appropriate and equities favor Parent.
Witness testified as to the religious instruction which included Jewish Law, Bible study , Jewish literature, and morning prayers. Parent submitted evidence of Student's schedule. (Exhibit G) I find DOE is not responsible to fund any religious component.
I find any award should be reduced by 40 per cent. The total amount for the tuition is $55,400. (Exhibit D ) find DOE should fund $33,240.
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 he was unable to pay the tuition. Parent submitted their tax return. (Exhibit F)
Parent testified as to payments he made to various charities. He testified that REDACTED had not asked for the tuition. He opined that they were expecting DOE to fund the tuition as they had done in the past. Parent submitted evidence of a signed contract. I find that Parent is obligated under the contract for the tuition regardless if REDACTED was willing to wait.
Parent testified that they did send money to REDACTED but described payment as a charitable payment and not for tuition. Parent is not asking for reimbursement for the money he sent to REDACTED.
The school year has long been over and I find that it makes no practical sense to require
Parent to pay tuition and then receive reimbursement. I find Parent is entitled to direct funding.
ORDER
DOE shall directly fund $33,240 to REDACTED upon evidence of contract.
Sharyn Finkelstein February 19, 2023
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 THE RECORD
A Due process complaint 3/22/2021 3 pgs
B. Parent letter 8/21/2019 (2 pages)
C. Parent letter 11/11/2019 (2 pages)
D. contract 2019-2020 19/20 (2 pages)
E. Payment affidavit 1/13/2023 (1 page)
F. 1040 form 2020 2020 (2 pages)
G. Schedule 2019-2020 (1 page)
H. Remote learning plan 2020 (3 pages)
I Program description N/A 1