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NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 10, 2022
For the Student:
REDACTED Advocate
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 16, 2022
For the Student:
REDACTED Advocate
For the Department of Education:
REDACTED District representative
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 21, 2022
For the Student:
REDACTED Advocate
REDACTED Special Education Coordinator, REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2023[1]
For the Student:
REDACTED Advocate
REDACTED Parent
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 16, 2023
For the Student:
REDACTED Advocate
REDACTED Parent
REDACTED REDACTED Interpreter
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 3, 2023
For the Student:
REDACTED Advocate
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 2021-2022 school year.
The parties moved to extend the compliance date on several occasions, initially for possible settlement, for witness availability, for an interpreter and preparation of positions. In considering the requests, I 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 April 10, 2023.
BACKGROUND
Student is classified with a speech and language impairment. (Exhibit I)
Student presented with a substantial academic delay in math, reading comprehension, reading, spelling, pre-writing skills and vocabulary. She struggled with functional tasks, organizational skills and executive functional tasks. Student struggled with attention. She had an inability to take in information, process it, and produce new information. (Exhibit B)
Prior to the 2021-2022 school year, Student had attended a mainstream general education class where she received ten periods of SETSS a week and related services.
On January 4, 2021, an IEP meeting was held for the 2021-2022 school year. The team recommended twenty (20) periods per week in an ICT class. (exhibit I)
Student was recommended a placement at REDACTED School. Parent had visited the school and determined it was too large a setting.
Parent enrolled Student at the REDACTED School for Girls (REDACTED)
Student was REDACTED years old and in REDACTED grade during the 2021-2022 school year.
Parent filed a due process complaint to obtain direct funding for Student's attendance at REDACTED. (Exhibit A)
DEPARTMENT OF EDUCATION'S CASE
The Department of Education (DOE) was represented by REDACTED. It is their position that they offered a FAPE to Student for the 2021-2022 school year. They argue that the equities favor DOE. They point out that a percentage of Student's schedule is religious, and any award should be reduced. They did not submit any evidence or have any witnesses in support of their position.
PARENT'S CASE
The parent was represented by their advocate REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2021-2022 school year. They maintain that Student's current program at REACTED is appropriate. They submitted evidence and presented two witnesses in support of their claim.
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. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. Parent's witness opined that Student would have gotten totally lost in DOE's recommended ICT class, with twenty-five to thirty students. (Tr. 85) I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year. I find that the DOE did not meet their burden under prong one.
With respect to prong two, REDACTED School that is a specialized school located within a mainstream stetting. The special coordinator at REDACTED provided testimony. She was "very familiar" with student. (Tr. 77, Exhibit B) They are a very small school and use a basic ICT model.
There are sixteen girls, one general education teacher and one special education teacher. The special education teacher provided modifications and accommodations to the actual curriculum based on Student's needs.
Student was grouped with Students based on her educational needs. All of Student's teachers work together in a collaborative fashion.
Goals were developed at the beginning of the school year.
Student was provided with supports and accommodations, including modified materials and texts, extended time and re-teaching.
Student attended a self-contained class for math with one student and one special education teacher. She was provided with individual math instruction.
Student did very well socially. She had a lot of friends.
Witness opined that Student required 1:1 and small group instruction. She required repetition, scaffolding, visual aids, individualized materials, modified texts, and broken-down material into small chunks.
Student had opportunity in high school to interact with her general education peers.
Witness opined that Student made progress during the 2021-2022 school year.
In reading, they modified the texts. They were broken down into chunks. They assessed Student's reading using the Fountas and Pinnell Reading assessment. She had a REDACTED grade reading comprehension level. At the end of the year, she was functioning at a REDACTED grade reading comprehension level.
At the beginning of the school year, Student was assessed to have REDACTED grade math skills. They provided her with small group instruction and 1:1 instruction and support, a modified math curriculum, pre and post and pre teaching, and repetition. At the end of the school year, her math skills had improved.
Student improved her writing level. She was provided with 1:1 support, graphic organizers, scaffolding, repetition, and prompts. At the beginning of the year her writing level was at approximately REDACTED grade. By the conclusion of the year, she had made progress, and she was functioning at a REDACTED grade writing level.
Student attended an inclusion English class which contained sixteen students, one general education teacher and one special education teacher. She attended an inclusion class in US History and Math.
Student attended a general education setting for the remainder of her courses which were no larger than sixteen students with one general education teacher.
Parent testified that Student made progress in writing. Her level of language improved in a very significant way. She improved in her writing, reading and her language. (Tr. 117)
Student graduated from high school. (Tr. 123)
I find that REDACTED provided Student with the individualized attention, small setting, and supports that enabled her to make progress. Student had opportunities to interact with non-disabled peers. I find REDACTED was appropriate and Parent met their burden under prong two.
With respect to prong three, Parent attended the IEP meeting. Parent went to visit REDACTED School. (Tr. 114) DOE points out that there is no ten-day notice in evidence. Parent testified that she told the District that the school was too large. She advised them by telephone. She could not recall with whom she spoke. (Tr 114) I find that the lack of a ten-day notice does not prevent Parent from obtaining relief but does warrant a reduction of 10 per cent.
DOE points out that Parent entered into a contract with unilateral placement that she knew she could not afford. They argue that this makes it an unreasonable placement. It is not unusual for Parents to enter into a contract that they could not afford to pay. Had Parent lost at the hearing, it would be between the Parent and School how they would arrange for payments.
I find that Parent should not be penalized for not having the ability to pay upfront.
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 she could not afford to pay the tuition at REDACTED. (Tr. 117) I find Parent is entitled to direct funding. Parent owes the entire amount of tuition of $100,000. (Exhibit D)
RELIGIOUS INSTRUCTION
Witness acknowledged that prayer and REACTED Studies were part of Student's schedule. (Tr. 80) (Exhibit F)
DOE in their closing estimates that the religious portion is around 18 percent of the schedule. Parent estimates that religious portion is 12.35 percent of the schedule. (Exhibit F)
I find DOE is not responsible for religious instruction. I find that tuition should be reduced by 15 percent of the schedule.
I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year, REDACTED is appropriate and the equities warrant a reduction. I find the tuition should be reduced for religious portions of the schedule. I find the tuition should be reduced by twenty five percent. I find Parent is entitled to direct funding.
ORDER
The DOE shall directly fund REDACTED in the amount of $75, 000. for Student's attendance during the 2021-2022 school year upon evidence of contract and attendance.
Sharyn Finkelstein
April 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. Impartial Hearing Request 10/26/2021 (4 pages)
B. Affidavit of REDACTED 9/30/2021 (6 pages)
C. REDACTED 21/2022 contract 21/22 (7 pages)
D. REDACTED financial affidavit 11/3/2022 (1 page)
E. REDACTED 21/22 attendance 21/22 (1 page)
F. REDACTED 21/22 schedule N/A (3 pages)
G. REDACTED teacher report 6/2/2022 (5 pages)
H. REDACTED counseling report 7/2/2022 (1 page)
I. IEP 1/14/2021 (18 pages)
J. Prior written notice 1/21/2021 (3 pages)
Footnotes
[1] Parties agreed that any testimony from Hearing on January 20, 2023 would be stricken. It became obvious that Parent required an interpreter. (Tr. 111)