New York City Department of Education, Impartial Hearing Decision

COVER SHEET

Case Number 227159

Date of Request June 28, 2022

Hearing Officer Sharyn Finkelstein

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Case Number 227159

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing November 22, 2022

January 4, 2023

Record Close January 11, 2023

Hearing Officer Sharyn Finkelstein Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2022

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

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

FOR THE STUDENT

REDACTED Attorney

REDACTED Parent

REDACTED REDACTED Admissions Director and Assistant Head of School, REDACTED

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 2021-2022 and 2022-2023 school year. I held several status hearings and it became clear that the matter had to go forward at a hearing. The case began on November 3, 2022 and was completed on January 14, 2023.

The parties moved to extend the compliance date on several occasions, initially for possible settlement and then 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 January 11, 2023.

BACKGROUND

Student is REDACTED old and has a diagnosis of autism.

Student has issues with pragmatic and expressive language, auditory processing and impulse control. (Tr. 80)

Student began receiving therapy through Early Intervention.

DOE had last conducted a neuropsychological evaluation in 2018. (Exhibit 3)

On August 12, 2020, an IEP meeting was held for the 2021-2022 school year. Team recommended a 12:1:1 setting. (Exhibit 1)

DOE sent prior written notice and a school location letter. (Exhibit 2)

Parent received a placement but could not visit because of COVID. (Tr. 89)

Parent disagreed with the recommendation.

Parent sent a 10- day notice. (Exhibit C)

Parent enrolled Student at REDACTED for the 2021-2022 school year for a twelve-month school year.

Parent signed a contract (Exhibit B) She paid the full tuition. (Tr. 91)

An IEP meeting was held for the 2022-2023 school year.

Parent disagreed with the recommendation.

Parent continued to Enroll Student at REDACTED for the 2022-2023 school year.

Parent signed a contract (Exhibit O) and she is making payments for the current school year. (Tr. 93)

Parent filed a due process complaint to obtain reimbursement for tuition for Student’s attendance at REDACTED for both the 2021-2022 and 2022-2023 school year (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE The Department of Education (DOE) was represented by their attorney REDACTED. With respect to the 2021-2022 school year, they submitted evidence into the record in support of their position that they provided a FAPE to Student. (Exhibits 1-3) They did not have any witnesses. They maintain that the unilateral placement is not appropriate, and the equities favor the DOE.

With respect to the 2022-2023 school year, they conceded Prong 1. (Tr. 36) They maintain that the unilateral placement is not appropriate and the equities favor the DOE.

PARENT’S CASE

Parent was represented by their attorney REDACTED. It is their position that DOE failed to provide a FAPE to Student for both the 2021-2022 and the 2022-2023 school year. They maintain that the unilateral placement at REDACTED is appropriate for both the school years. They maintain that the equities favor Parent. It is their position that Parent is entitled to tuition reimbursement for Student’s attendance at REDACTED for both the 2021-2022 and 2022-2023 school year. They submitted evidence. (Exhibits A-W) Admission Director and Assistant Director of REDACTED and Parent provide testimony 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 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.

PRONG ONE

With respect to the 2021-2022 school year, DOE submits evidence to support their position of providing a FAPE to Student. They point out that an IEP meeting was held and an IEP was developed. They recommended a 12:1:1 class in a REDACTED specialized school with related services of counseling, speech and language therapy and counseling for a 12-month school year. (Exhibit 1) They point out that there are measurable goals and management needs. (Tr. 102-103)

Parent opined that a 12:1:1 class ratio would not have provided Student with adequate support. (Tr. 91)

Documents may support Witness testimony but do not suffice as a replacement. There is nothing in the documents that would explain how they addressed Parent’s concerns, what discussions were had or how they actually arrived at the recommendations for this particular Student. Evidence from Parent’s Witness who knows Student, testified as to Student’s need for small class size and individual attention. (Tr. 56) I find that DOE did not demonstrate the appropriateness of their IEP.

With respect to the placement, conspicuously absent was any placement witness. DOE argues that Parent did not raise this in the due process complaint. Parent raises concerns about the placement in the Due process complaint. DOE has the burden of showing they can implement the recommended placement. I find that DOE did not meet this burden.

I find that DOE did not meet their burden under prong one. I find DOE did not provide a FAPE to Student for the 2021-2022 school year.

With respect to the 2022-2023 school year, DOE conceded prong one. I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year. DOE failed to meet their burden under prong one.

PRONG TWO

REDACTED is a school for students with a language-based learning disability that affects their academics, social gains, executive functioning and or everyday activities. (Tr. 50) They use an evidence-based curriculum for students with language-based learning impairments. (Tr. 52) They have small group-learning classes with a total of sixty students. Their homeroom class consists of six students with two special educations teachers. There is a dedicated speech and language pathologist to the classroom. (Tr. 51)

All of the core academics are ungraded. Students are in groups of three to five with a minimum of two adults.

They provide related services of speech therapy, occupation therapy and counseling.

Progress is measured through standardized reading and math assessments. They also have midterms and final examinations as well as daily homework that is assessed. (Tr 53)

Witness was involved in Student’s admission process. He has worked with Student’s team and with him directly.

Student requires a significant amount of positive prompting and redirection for him to stay focused. (Tr. 56) He is working below grade level in his academics. Witness opined that it stems from his language -based disorder. Student’s processing is “very impaired” He has a short attention span and low frustration tolerance. (56)

During the 2021-2022 school year, Student was in a class with a 6:2:1 ratio. A speech language therapist was present for academic classes. Student had two individual speech sessions per week and group sessions. He had individual and group occupational therapy sessions. (Tr. 58)

Student was remote until the winter of 2021. The only different in his program was that it was remote. He zoomed into all of his academic classes. He received his related services. (Tr. 59) Student made progress with remote learning. He did regress socially and emotionally. Parent testified that he was in sessions every single day with his class and teachers. (Tr. 89)

Student required a lot of support upon return to in person learning. (Tr 61) The second half of school year was supporting him to be ready for in person learning. (Tr. 62) His academics did not slide but he had to adjust to the social piece. (Tr. 90)

Goals are developed with former teachers, new teachers and created through their individual staff supervisors with the directors of each department. (Tr. 59)

Student was promoted to 2022-2023 school year and has the same class ratio. (Tr 62)

He receives his related services and is back in person. Witness opined that Student has made great steady progress.

Witness opined that Student benefits from the small class size which includes a speech pathologist who works in tandem with the special education. They are there to specifically address Student’s speech and language deficits and to help him access the curriculum. (Tr. 80-81)

They use positive behavior supports. They have a board-certified behavior analyst on staff who consults with all classrooms. They created a system for Student directly written in his 2021-2022 schedule. (Tr 81)

During the 2022-2023 Student continues to make progress at a quicker pace. His executive functioning is specifically addressed every day in occupational group therapy which is co-facilitated between special education staff and his occupational therapist. (Tr. 84)

Parent opined that Student is doing very well. He is able to homework more independently at home, and is more confident. Student improved in his reading and math.

DOE opines that it is an ‘odd choice” to choose a school that services student with speech-based learning disabilities when their primary classification is for autism. Parent points out DOE’s neurological evaluation recommends the type of program that the unilateral placement provides. (Exhibit 3) I find that evidence is undisputed that Student has a language-based disorder.

Parent submitted evidence of progress Student made during the 2021-2022 school year. (Exhibit K) Parent submitted evidence of progress Student made with his goals. (Exhibit G) Student was able to participate in remote learning was promoted to 2022-2023 school year. I find that Student was provided with small class ratio and individual support that enabled him to progress. I find that unilateral placement addressed his behavior, social and academic needs.

During the 2022-2023 there was testimony with respect to Student’s continued progress. I find that the small class size and support continue to allow Student to progress.

DOE argues that the placement is overly restrictive because he has no exposure to typically developing peers. Restrictiveness is just one factor to be considered. There is no evidence that DOE even provided Student with a placement for the 2022-2023 school year. Student had already made progress during the prior year at the unilateral placement. I find that on balance, the school provides the type of supports and setting that enables Student to make progress.

DOE questions the amount of progress Student has made. I find the record establishes both from testimony and documents that Student has and continues to make progress. I find that the unilateral placement was appropriate for both the 2021-2022 and the 2022-2023 school year.

I find Parent met their burden under prong two.

PRONG THREE

With respect to the equities, DOE points out that the contract signed by Parent for Student’s 2021-2022 school year was signed three months prior to the school year and two months prior to the public -school placement and prior written notice. They point out that there does not appear to be an “escape clause” in the contract. It is their position that this is evidence that Parent did not consider the DOE placement. (Tr. 106-107) There may be several reasons why Parent signed the contract in April. I cannot make that conclusion without any specific testimony from Parent. I find there is nothing in the equities that would prevent Parent from obtaining the requested relief.

In summary, I find that DOE failed to provide a FAPE to Student for the 2021-2022 and 2022-2023 school year. I find that the unilateral placement at REDACTED was appropriate for the 2021-2022 and the 2022-2023 school year. I find the equities favor Parent.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED for Student’s attendance during the 2021-2022 school year and the 2022-2023 school year upon evidence of contract, payment and attendance.

Sharyn Finkelstein Esq. January 22, 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

DEPARTMENT OF EDUCATION

1 IEP 2021/2022 August 12, 2020 45 Pages

2 Prior written notice and school

Location letter, 2022022 June 12, 2021 11

3 Neuropsychological evaluation February 22, 2018 23

PARENT

A Due process complaint June 28, 2022 4

B Ten-day notice for the 21/22 June 15, 2021 2

C Ten-day notice 22/23 June 17, 2021 2

D Student enrollment contract April 9, 2021 4

E REDACTEDD

Description NA 2

F Student’s schedule 21/22 NA 10

G Speech-language pathology graded

Goals 21/22 SY 3

H Writing goals 21/22 SY 1

I Occupational therapy evaluation report

21/22 June 4, 2022 9

J English Language Arts

ELA goals 21/22 SY 2

K End-of-year academic report and

Assessment summary 21/22 June 24, 2022 6

L Math goals 21/22 SY

M Comprehensive speech and language

Evaluation June 24, 2022 11

N Occupational therapy goals 22/23 SY 2

O Student enrollment contract April 12, 2022 3

P Affidavit of REDACTED November 8, 2022 1

Q Student’s schedule 22/23 SY 1

R Student attendance 22/23 SY 2

S English language arts goals 22/23 SY 2

T Speech-language pathology graded goals 22/23 SY 3

U Writing goals 22/23 2

V Occupational therapy goals 22/23 2

W Math goals 22/23 2