New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552442 - NYC: 208619

COVER SHEET

Case Number 208619

Requested June 3, 2021

Hearing Officer Sharyn Finkelstein

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Case Number 208619

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing April 26, 2022

June 17, 2022

June 23, 2022

Hearing Officer Sharyn Finkelstein Esq.

Record Close August 6. 2022

NAMES AND TITLES of PERSONS WHO APPEARED ON JANUARY 27, 2022

FOR THE STUDENT

REDACTED Attorney

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2022

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2022

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2022

FOR THE STUDENT

REDACTED Attorney

REDACTED Parent

REDACTED Parent

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

REDACTED Special Education Teacher, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 23, 2022

FOR THE STUDENT

REDACTED Attorney

REDACTED Parent

REDACTED Parent

REDACTED REDACTED Program

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

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 2020-2021 school year. I held a pre hearing conference and it was determined that the matter had to proceed to hearing. Hearings began on January 27, continued on February 10, 2022, April 26, 2022, June 17, 2022 and concluded on June 23, 2022.

The parties moved to extend the compliance date on several occasions for witness availability and to allow for receipt of transcript and the submission of briefs. In considering the requests, weighed the cumulative impact of the relevant factors and found that the need for the 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 August 6, 2022..

BACKGROUND

Student is classified by the Department of Education (DOE) as a student with autism. He was REDACTED years old at the beginning of the 2020-2021 school year.

Student had attended the REDACTED, a New York State approved non-public school beginning in grade REDACTED through the end of REDACTED grade. (Tr. 168)

Student had begun attending REDACTED school program when he aged out of REDACTED grade. (Tr. 168)

On April 8, 2020 an IEP meeting was held by phone for the 2020-2021 school year. The team recommended REDACTED class with twelve students, one teacher and one paraprofessional. Student was recommended to receive related services including occupational therapy and speech and language therapy. (Exhibit 1)

Parent expressed their disagreement with the recommended program at the meeting. (Tr. 78)

Parent received a school location letter in August 2020 a day or two prior to the end of the summer session. (Tr 181) They recommended REDACTED Center. (Exhibit 4)

Parents enrolled Student at REDACTED for the 2020-2021 school year. (Exhibit K)

They filed a due process complaint for funding for Student’s attendance at REDACTED for the 2020-2021 school year.

DEPARTMENT OF EDUCATION’S CASE The Department of Education (DOE) was represented by their attorney REDACTED.

It is their position that DOE provided a FAPE to Student for the 2020-2021 school year. They maintain that the Parents failed to meet their burden to establish the appropriateness of the REDACTED school. It is their position that the equities favor the DOE. REDACTED attended the April 8, 2020 IEP meeting as the special education teacher. He was DOE’s only witness. DOE submitted evidence and a closing brief in support of their position.

PARENT’S CASE The Parents were represented by their attorney REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2020-2021 school year. It is their position that the IEP that was developed was both procedurally and substantively inappropriate. They argue that the recommended placement could not have implemented the IEP. It is their position that the REDACTED was appropriate. It is their position that the equities favor the Parents. They maintain that Parents are entitled to funding for Student’s attendance at REDACTED for the 2020-2021 school year. They submitted evidence. REDACTED is the associate head of the REDACTE School and Institute’s transition program. She testified as well as Parents. DOE submitted evidence and a closing brief in support of their position.

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 CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015.

Parents are entitled to a valid IEP as of the first day of the school year (see 20 U.S.C, §§ 414(d)(1)(A)(i), 1414(d)(2)(A); 34. C.F.R. § 300.323(a) § 300.320[a][1]; 8 NYCRR 200.4[d][2][i[).

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, an IEP meeting was held on April 8, 2020 for Student’s 2020-2021 school year. (Exhibit 1)

Special education teacher (Witness), District representative, Parents, Case manager from REDACTED, teacher from REDACTED, and REDACTED school representative attended the meeting. (Exhibit 1, Tr. 68)

They reviewed progress reports from REDACTED as well as school reports. Witness recalled that student had been performing at a lower instructional grade level than his current grade level. (Tr. 68) Witness acknowledged that the ELA section and PLOP, math section, counseling section, and physical development came from REDACTED progress report which had been written in November 2019. He acknowledged that he had not looked at any evaluations of student’s functioning separate from the progress report. (Tr. 95) Witness acknowledged that he had not looked at a social history or classroom observation or psychological. (Tr. 94)

I find that DOE did not have proper updated evaluations and were missing evaluations required in order to provide an appropriate recommendation.

Parent testified that she had asked the team to evaluate Student when he was in REDACTED grade and in his final year of REDACTED during the 2014-2015 school year. There has been no classroom observation since that time and no speech or language evaluation, occupational or physical therapy evaluation. (Tr. 121) There was no vocational assessment. (Tr. 172) I find this is one example of DOE failing to respond to or consider Parents’ concerns.

Team discussed Student’s management needs and social emotional development. Student was socially motivated and well-liked. (Tr. 73)

Team recommended a REDACTED special education class with twelve students, one teacher and a paraprofessional. (Tr. 75) Parent expressed disagreement with the placement of Student in a REDACTED program at REDACTED. This was documented In Parent concerns section of the IEP. They were concerned that it would not offer a level of academic and social-emotional support with a flexible programming. They were concerned that it was a more self-contained setting than his current placement. (Tr. 78)

Parent’s Witness opined that a REDACTED did not address Student’s need for a real partnership, that would explore future programs. (Tr 141) Witness opined that related services in pull out form would not be appropriate. She explained that Student needs to practice skills with peers in an actual context. He needs to generalize skills using pre-taught skills in other environments. (Tr 142) Witness explained that Student needs integrated services to be able to practice different skills in different contexts with different people. (Tr. 14)

DOE Witness opined that the program recommendation would have offered appropriate levels of academic and social-emotional support. He opined that the program would offer a level of flexible programming for Student. He explained that a REDACTED is more supportive than a community school. He opined that a REDACTED was the best fit for supporting Student both academically, socially and emotionally. (Tr. 80) Student had been attending non-public school for several prior years. There is no evidence that DOE even considered a non-public school.

The team created annual goals. Witness opined that based on his review of the documents, they were appropriate and very specific to student’s needs. (Tr. 81) The goals were not discussed at the meeting. (Tr. 172, 174) I find that the failure to discuss the goals with the Parents at the meeting is a violation. I find it is another example of not including the Parent in the process.

With respect to the transition activities Witness acknowledged that community-based travel training on the IEP is not necessarily appropriate. (Tr. 111) There was no vocational assessment. (Tr. 172)

The IEP was not actually drafted at the meeting. Notes are taken at the meeting on the minute meeting page and they are later inputted into the IEP, DOE acknowledged that the document is not shared with Parents. It is uploaded to SESIS.

DOE Witness testified that pre-COVID IEPs are usually printed out and mailed. This could not have been done during COVID. He did not know what was done. (Tr. 100) Parent had advised the DOE on multiples occasions that they had not received the IEP. (Exhibit a, B, C, N Tr. 11-12) I credit Parent that they did not receive the IEP until the start of this hearing. (Tr. 174, 179)

Parent testified that they received the school location letter on August 12, 2020. (Tr. 181, 183 194, Exhibit 3, 4) Student requires a 12 -month school year. I find that DOE did not provide Parent with either prior written notice or school location letter in a timely manner.

DOE did not have a Witness testify about the recommended placement’s ability to implement the IEP.

I find that there were multiple procedural violations and substantively violations with the IEP. I find that there were not sufficient evaluations at the IEP meeting. I find that Parents did not have sufficient opportunity to participate. Goals were not discussed. Although Parent concerns were noted, I find no evidence that they were really considered. I find that DOE’s failure to provide Parent with IEP or school location letter is a procedural violation that hindered their participation. I find that DOE did not consider a non -public school despite Student’s educational history. I find no evidence that the recommended school could have implemented the IEP. I find DOE did not provide Student with a FAPE for the 2020-2021 school year. I find that DOE did not meet their burden under prong one.

With respect to prong two, REDACTED (REDACTED) serves students who are REDACTED to REDACTED years old. They focus on applied functional academics related services, vocational skills and community partnerships. (Tr. 121) It is an integrated program that focuses on developing students’ academic skills and practicing skills that they need for young adulthood. (Tr. 123)

Students develop their vocational skills through a vocational forum class which includes resume writing, interview skills, and developing skills. Their internship program focuses on both soft skills which can be found in any job and hard skills which focus on developing skills in a specific area. (Tr.123)

Student attended REDACTED. He has a tendency to rush through tasks. He needed support with asking for help, for clarifying questions, and with knowing when to advocate for himself. He requires support in making lasting connections on topics. He can become anxious if there are changes in his routine or schedule. He has difficulty keeping his body and his eye contract in the conversations. (Tr. 126)

Student is grouped similarly with students who have similar academic, social emotional and adaptive needs (Tr 127)

The school year began remotely and In November they were full time in person with occasional closures through the year. Remote instruction consisted of a combination of Zoom classes and Google classroom assignments. Students had same classes as in person. (Tr 131-132)

Student was in a class of eight students, one paraprofessional that was assigned to one of his peers, a teacher and an assistant teacher or with his related services provider team which would consist of a counselor, occupational therapist and a speech therapist. (Tr. 129)

Related services are provided in a clinical block together in a class of eight students with the three clinicians. They work with students in small groups. They meet for forty-five-minute sessions. The amount of time provided for each service depends on the week. Witness described that it as an “interdisciplinary integrated classroom lesson”. (Tr 14) Speech and language and occupational therapy are provided in each session. (Tr 149) They are provided based on students’ needs.

There are three sessions each week of related services designated in their class. They also go out in the community with the students. (Tr. 134) They also support students through consulting with job coaches.

They assess progress through teacher observations, assessments class work and class discussions (Tr. 135) Parent submitted evidence of progress prepared by Student’s teachers, related service providers and job coach. (Exhibit F, Tr. 176)

School created an internship warehouse. They set up mock hard skills area. Student chose retail and pet care. He worked with retail, folding, sorting, washing labels, pet care cleaning, making purchases on line, and on simple tasks. Student had two hours a week of internship with a job coach and forty-five minutes a week of vocational forum class. (Tr. 137)

REDACTED developed academic goals based on Student’s needs. (Exhibit F) They taught him functional skills in a language arts class and in a technology period. (Tr. 138)

Witness opined that Student made progress with listening to and developing his peer relationships, with his confidence in problem solving, and self-advocacy. Student made progress with his internship, asking for help, staying focused on his tasks, eye contact, mock interviews, and back and for conversation. He made progress in math and with money skills, organization, identifying bills, and increased his reading comprehension, (Tr. 139)

Witness opined that REDACTED provided Student with opportunity to practice different skills in different contexts with different people) (Tr 143) All of Student’s functional academic classes as well as related services are focused on the activities of daily living as well as his internship and vocational skills. (Tr. 159)

Parent testified that Student was able to meet his goals that were set out in his progress reports while attending REDACTED.

DOE argues that Parent failed to establish that REDACTED was appropriate and they failed to meet their burden under prong two. They argue that there is insufficient evidence of progress. They maintain that there is no evidence that the program addressed Student’s deficits.

With respect to progress, there was undisputed evidence of the progress that Student made during the 2020-2021 school year. The school provided Student with small classes and supports for him to make the progress. School began to prepare him for his future. Student was able to choose his area of interest. There was improvement in his vocational skills. Evidence establishes progress not only in academics but also in his functional skills. I find that REDACTED was aware of and provided support in the areas where it was needed. I find that REDACTED was appropriate and Parents met their burden under prong two.

With respect to prong three, evidence establishes that Parents were very involved with the process and participated in the IEP meeting. They consistently reached out to the DOE to advise them that they had not received an IEP. They advised DOE of their disagreement with the program during and after the meeting. They advised the DOE when they had not received a placement. They attempted to contact the school when they did receive a location letter. They advised DOE of their intent to place Student at REDACTED.

DOE requests that the equites be found in their favor. In this case, evidence establishes that they did not timely send the IEP or the location letter. It was the Parents who consistently reached out to the DOE to advise them that they had not received an IEP or location letter.

Parents attended the IEP meeting. They advised DOE of their disagreement with the program during and after the meeting. They attempted to contact the school, without success, when they did receive a location letter. They advised DOE of their intent to place Student at REDACTED.

I find that the equities overwhelmingly support 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 they are not in a position to pay the tuition. They have had not income after February 2021. Parent is responsible for the full tuition. (Exhibit K) I find Parents are entitled to direct funding.

In summary, I find that the DOE failed to provide a FAPE to Student for the 2020-2021 school year, I find that REDACTED was appropriate and the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding for any remaining balance for the tuition for Student’s attendance at REDACTED School during the 2020-2021 school year.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED and fund any remaining balance for Student’s attendance during the 2020-2021 school year upon evidence of contract and payment.

Sharyn Finkelstein August 8, 2022

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 impartial hearing request 6/2/2021 7

B 10-day letter 8/16/2020 3

C Amended 10-day letter 8/24/2020 3

D Parent’s placement rejection letter 11/22/2020 5

E Summer progress report Summer 2020 5

F REDACTED Progress Report 6/18/2021 23

G REDACTED Progress Report 6/18/2021 23

H REDACTED summer academy program

Description undated 2

I REDACTED transition program description 9/14/2020 6

J REDACTED remote learning information undated 5

K REDACTED enrollment contract 2020 3

L Tuition affidavit 9/23/2020 2

M Parent’s proof of payment 5/8/2020 2

N Amended impartial hearing request 2/1/2022 9

DEPARTMENT OF EDUCATION

1 IEP 4/8/2020 15

2 IEP notice 2/24/2020 4

3 Prior written notice 5/4/2020 5

4 School location letter 5/4/2020 3

5 Student report card REDACTED School 11/2019 26

IDENTIFICATION

I Parents’ Closing August 3, 2022 30

II Department of Education’s Closing August 3, 2022 8