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NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 18, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 25, 2023
For the Student:
REDACTED Attorney
REDACTED Principal, REDACTED
FOR THE DEPARTMENT OF EDCUAITON
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 23, 2023
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Interpreter
For the Department of Education:
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 REDACTED (hereinafter referred to as "Student") for the 2020-2021 and 2021-2022 school year.
The parties moved to extend the compliance date on several occasions in light of, witness availability. 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. Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on February 27, 2023.
BACKGROUND
Student is classified by the Department of Education (DOE) as a student with multiple disabilities.
Student is REDACTED old and has attended REDACTED (REDACTED) since he was REDACTED years old.
Student is non-ambulatory and does not speak using verbal speech. Student has a dual sensory impairment of hearing and vision loss. He has significant physical limitations that impact his ability to use his hands and legs. Student has global developmental delays that impact every aspect of his life. Student has a seizure disorder. (Tr. 83-84)
DOE recommended a 12:1:4 program for both the 2020-2021 and 2021-2022 school years.
Parent rejected the programs for both school years and advised DOE of their concerns. (Exhibit B, R)
Parent unilaterally placed Student at REDACTED for both the 2020-2021 and 2021-2022 school years. (Exhibit E, T) )
Parent signed a contract June 9, 2020 for the 2020-2021 school year. Parent signed a contract on June 11, 2021 for the 2021-2022 school year. (Tr 121) ` Parent filed a due process complaint for tuition reimbursement and direct funding to REDACTED for any remaining balance for Student's attendance during both the 2020-2021 and 2021-2022 school years. (Exhibits A, Q) [1]
DEPARTMENT OF EDUCATION'S CASE
The Department of Education (DOE) was represented by REDACTED. They did not put on a case but submitted evidence.
PARENT'S CASE
The Parent was represented by their attorney REDACTED. It is their position that the DOE failed to provide a FAPE to Student for the 2020-2021 and 2021-2022 school years. They maintain that REDACTED is appropriate and Parent is entitled to funding for Student's attendance during the 2020-2021 and 2021-2022 school years. They submitted evidence and produced witnesses.
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 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 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.
The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-
087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).
With respect to prong one, DOE did not put on any witnesses to defend any IEP. 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 testified as to her concerns with the program for the 2020-2021 school year. She did not receive the IEP for the 2020-2021 school year. She informed DOE of her concerns. Parent testified that she did not agree with the recommendation for the 2021-2022 school year. She did not receive an IEP or a placement (Tr.
121) I find that that DOE failed to provide a FAPE to Student for the 2020-2021 and 2021-2022 school year. I find that the DOE failed to meet their burden under prong one.
With respect to prong two, the principal and executive director of REDACTED provided testimony. She is very familiar with Student and for both years reviewed his progress reports, assessments, IEPs and met with his team. (Tr. 76)
REDACTED is a twelve-month independent school for students who are severally disabled, including students with traumatic brain injuries. Many of them have visual impairments and they all have medical issues, cognitive delays and significant mobility issues. School has specific experience in educating children who suffer from brain injuries and have multiple disabilities.
They have small classes. They provide occupational therapy, speech and language. physical therapy, and hearing and vision services up to sixty-minute intervals. It is very individualized and is a combination of push-in and pull-out sessions. (Tr 74)
Student had access to community programs.
There is a director of assistive technology to ensure that Student had everything he needed to fully access materials that are provided. (Tr 62) All students have communication delays and each student has an appropriate tool for them to fully engage in their day. (Tr 62)
During both school years, vision services, hearing services, speech, occupational therapy, physical therapy and assistive technology were built in programmatically during day.
During the 2020-2021 Student was in a 6:1:1 class based on his age and similarity of sensory and learning needs. All the students used alternative communion systems. Student was provided with an AAC device from the speech therapist. (Tr. 82)
Student was provided with an individualized therapy and academic curriculum that focused on engagement and participation.
Tuition includes related services, one to one health paraprofessional, extended school day, 12- month program, parent counseling and training, vision therapy, hearing therapy and assistive technology.
Student used materials specifically created for him to address his needs in 2020-2021.
During both years, Student received therapies and assistance with getting dressed, toileting, washing hands, tooth brushing and feeding through a G-tube. (Tr 89
Student had made progress and during 2021-2022 used a technology communication device in addition to his vocalizations and facial expressions to communicate (Tr 99
Witness testified as to his progress Student made during both the 2021-2022 school year and 2021-2022 school year. (Tr. 94) Student made progress in all areas of his program in both years. (Tr.98)
Parent submitted evidence of progress reports. Parent testified as to Student's progress. (Exhibit J and Y) (Tr. 122-123)
I find that the program at REDACTED for Student provided him with the necessary supports and individualized program that enabled him to make progress in all areas during the 2020-2021 and 2021-2022 school year. I find that REDACTED was appropriate and Parent met their burden under prong two.
With respect to the equities there is nothing in the record that would bar the Parent from full 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)
Parent testified that they are responsible for the tuition. Parent submitted evidence of tax returns. (Exhibit AA) I find Parent is entitled to direct funding.
ORDER
DOE shall reimburse Parent for tuition paid and directly fund any remaining balance to REDACTED for Student's attendance for the 2020-2021 and 2021-2022 school year upon evidence of contract and payment.
Sharyn Finkelstein
March 6, 2023
NOTICE OF RIGHT TO APPEAL
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.
A. Impartial Hearing Request May 3, 2022 8 pages
B. Ten Day Notice June 16, 2021 3 pages
C. Program Description 2020-2021 9 pages
D. Remote Program Description 2020-2021 9 pages
E. Enrollment Contract June 16, 2020 5 pages
F. Affidavit July 28, 2020 1 page
G. Schedule 2020-2021 5 pages
H. Attendance 2020-2021 1 page
I. REDACTED IEP April 20, 2020 17 pages
J. Quarterly Progress Report 2020-2021 9 pages
K. Educational Evaluation January 19, 2021 7 pages
L. Functional Vision Assessment December 23, 2020 4 pages M.
Hearing Education Evaluation April 17, 2020 3 pages
N. Speech Language Pathology 8 pages
January 15, 2021
Evaluation O.
Occupation Therapy Evaluation January 15, 2021 10 pages P.
Physical Therapy Evaluation January 15, 2021 5 pages
Q. Impartial Hearing Request October 20,2021 6 pages
R. Ten Day Notice June 16, 2021 3 pages
S. Program Description 2021-2022 10 pages
T. Enrollment Contract June 11, 2021 1 page
U. Affidavit August 10, 2021 1 page
V. Schedule 2021-2022 2 pages
W. Attendance 2021-2022 13 pages
X. REDACTED IEP June 3, 2021 24 pages
Y. Quarterly Progress Report 2021-2022 11 pages
Z. Educational Evaluation January 21, 2022 14 pages AA Tax return 2020 2
DOE Date Description Number Exhibit of Pages 1 10/20/2021 Due Process Complaint 6 2 06/15/2020 Ten Day Notice 3 3 05/28/2020 Individualized Education Program 34 4 06/08/2020 Prior Written Notice 7 5 06/08/2020 School Location Letter 4 6 04/20/2020 REDACTED Individualized Education Plan 2020-2021 17 7 01/17/2020 REDACTED Quarterly Progress Reports 2019-2020 9 8 10/05/2018 Speech and Language Student Progress Report 4 9 4/27/2021 IEP 16 10 5/4/201 Prior written notice 7 11 5/4/201 School location letter 4
Footnotes
[1] Cases were consolidated inappropriate, the nonpublic school is appropriate to meet the student's unique educational 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)