New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 20, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Director of [REDACTED]

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 24, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 14, 2023

For the Student:

[REDACTED] Attorney

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] (“Student”) for the 2022-2023 school year.

The parties moved to extend the compliance date on several occasions for witness availability and to allow time to prepare for hearings. 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 June 21, 2023.

BACKGROUND

Student is [REDACTED] old and diagnosed with Autism Spectrum Disorder.

An IEP was created for the 2022-2023 school year. (Exhibits E and F)

A school location letter was sent. (Exhibit K)

Parents did not agree with the IEP or the school. Parent sent notice to CSE. (Exhibits M and N)

Parent signed a contract for Student’s attendance during the 2022-203 school year at the REDACT ([REDACTED] where Student has attended since kindergarten. (Exhibit O)

Student had been receiving ten hours per week of SEIT services at home.

Parent filed a due process complaint to obtain direct tuition funding for Student’s attendance at REDATED during the 2022-2023 school year and for SEIT services ten hours a week at home. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney [REDACTED]. They did not have any witnesses or submit any evidence. They did not put on a case. (Tr. 52). They cross-examined Parents witnesses. It is their position that the unilateral placement and home SEIT services are not appropriate, and the equities favor the DOE. (Tr. 54) They maintain that the requested relief should be denied in its entirety.

PARENT’S CASE

The parent was represented by their attorney [REDACTED]. It is their position that the DOE failed to offer a FAPE to Student for the 2022-2023 school year. They maintain that Student’s current program including attendance at [REDACTED], related services and ten hours of SEIT per week is appropriate. They maintain that the equities favor Parents. They submitted documents in support of their claim. They had several witnesses. It is their position that Parent is entitled to direct funding for Student’s attendance at the [REDACTED] during the 2022-2023 school year and ten hours a week of home SEIT services.

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. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. Parent testified that they had a neurological report (Exhibit C) done for Student, which she shared with the DOE and was not discussed at the meeting. There was a SEIT report which was not discussed at the meeting (Exhibit J) They did not discuss Student’s behavior. Parent’s witness opined that the IEP did not provide Student with enough support. DOE did not dispute any of the allegations. I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, the director of [REDACTED] provided testimony. (Tr. 75-112)

Student is in [REDACTED] grade. Student’s classes have seven students with one teacher and one assistant. Student’s teacher is New York State certified. Many students have a one-toone paraprofessional. There are five other adults in the room.

Student has a health paraprofessional and a behavior paraprofessional.

Students are functionally grouped based on their learning style, language, and social skills levels and needs.

They have integrated related services of occupational therapy, physical therapy and speech therapy. They work on ADL skills on a daily basis. They have a gym. They are housed by the campus of students with general education students. There are opportunities to interact with students without disabilities.

A behavior plan is incorporated into Student’s schedule.

Student receives all of her mandated services, including physical therapy, occupational therapy and speech and language. Parents receive training.

ABA is utilized to help Student acquire her skills. Student has related services in school. Teachers and providers work closely together to ensure she uses her devices throughout the school building. Student uses a Dynamic Display Speech Generating device at school and at home.

Parents submitted Student’s daily schedule. (Exhibit Q ) Lunch is instructional and Student works on using her device and on language communication.

There is intensive teaching throughout the day. At the end of the day ADLS are practiced similar to the morning but in reverse.

They use Applied Behavior Analysis throughout the day. They have specific teaching strategies. There are systematic generalization procedures. Data is collected all day on a daily basis.

Student presents with anxiety. They use visual schedules, token systems and breathing techniques. They have behavioral strategies that they use throughout the day. Student has her own individual schedule. Student’s teacher and occupational therapist have worked out sensory diets.

Student receives all her related services that are mandated on her IEP. The related services providers are an integral part of the program. They participate in al the team meetings and trainings and professional development. They are contractors who work in the building and are funded via either transmittals or RSAs to the contract agency. The services including Student’s paraprofessional, are not part of the tuition but are provided by the DOE.

There are opportunities for Student to interact with typical peers during the social skills program as well as a buddy program.

Witness opined that student has made nice progress. She is doing better in reading, and social skills. They had developed long term goals and objectives that were made for each goal.

Witness opined that [REDACTED] is appropriate.

DOE argues that there is no specific mention of the areas of progress that Student made. Progress is not required to establish the appropriateness of a unilateral placement. It is only one factor to be considered. I find that there is some evidence of progress (Exhibit J) . There was also testimony with respect to progress.

I find the evidence establishes that [REDACTED] provides Student with the small class size, appropriate peers, related services and supports that enable her to progress in various areas . Student had already been attending [REDACTED]D during the prior year. I find the continuation at [REDACTED] was reasonably calculated to confer an educational benefit to Student. I find Seton was appropriate.

SEIT SERVICES

Student receives ten hours a week of home SEIT services. The provider is not associated with the school and is affiliated with a separate agency.

Parent testified that it helps manage Student’s anxiety.

SEIT does ABA discrete trial. They work on some ABL skills. They work on speech and academics. They work on breathing techniques and calming exercises.

Witness opined that home hours are a necessary component of Student’s program. They help to keep Student’s level of anxiety at a lower level at home. They explained the importance for generalization across environments. They work on academics. Parent opined that Student continues to require SEIT services.

Evidence establishes that there is a relationship with the school and home provider.

Parent had an independent neuropsychological conducted (Exhibit C) which recommended that Student have 10 hours of at home services. Witnesses who knew Student all opined she required these services. I find Student was entitled to 10 hours of SEIT services.

With respect to the SEIT hours, DOE argues that there is no specific program in evidence. There was testimony that program is coordinated with [REDACTED] program and reinforces the skills. There are monthly meetings with SEIT provider and classroom teacher to ensure carry over from home to school and school to home. They use consistent strategies.

I find nothing in the record to indicate that Student no longer required the SEIT services.

I find Student’s program consisting of attendance at [REDACTED] and home based SEIT services is appropriate. I find Parents met their burden under prong two.

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)

Parents submitted evidence of tax returns. Parent testified as to their inability to pay. I find Parents are entitled to direct funding.

With respect to the equities, Parent testified that they attempted to visit school but could not get appointment. She had called several times and left messages. Parent testified she would have been open to public school where her other two children attend. Parent signed a contract in July 2022 for the [REDACTED]. They had no other option, so they continued to enroll her where she was currently attending school. DOE points out that Parent signed the contract with [REDACTED] two days after receipt of the school location. It is their position that this suggests Parent was not prepared to cooperate with DOE had they offered an appropriate public-school placement. I find that inasmuch as there is no evidence that DOE offered an appropriate placement, DOE’s suggestion is merely speculative.

Parent attended the IEP meetings. Parent sent ten notices with their concerns and intentions. Parent shared their independent evaluation. DOE did not respond. I find nothing in the record that would prevent Parent from obtaining requested relief.

On the last day of hearing, Parent advised that nothing was owing because all payments have been made through pendency. Parent requests findings of the relief Student is entitled to for the 2022-2023 school year.

FINDINGS

I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, [REDACTED] is appropriate, 10 hours of home based SEIT is appropriate, and equities favor the Parents. I find that DOE is obligated to directly fund the tuition for Student’s attendance at [REDACTED]. I find DOE is obligated to directly fund 10 hours per week of home SEIT services to Student for the 2022-2023 school year. I find DOE is obligated to provide RSA’s, paraprofessional support and technologies as outlined in the IEP. I find Student is entitled to transportation to and from school.

Any request to amend the IEP is denied. ^[1]

Sharyn Finkelstein July 2, 2023

PLEASE TAKE NOTICE

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.

EVIDENCE ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing request 6/28/2022 (10 pages)

B Pendency agreement 7/12/2022 2

C. Psychoeducational evaluation 12/10/19/20 (10 pages)

D. IEP 3/16/2021 (21 pages)

E. IEP 1/28/2022 (39 pages)

F. IEP update 1/28/2022 (3 pages)

G. Teacher report 2/10/22 (3 pages)

H. Physical therapy report 9/28/2021 (3 pages)

I Speech and Language therapy

Report 2/16/2022 4

J. SEIT report 2/16/2022 (1 page)

K. School location letter 6/13/2022 (4 pages)

L. Prior written notice 6/13/2022 (4 pages)

M. Letter to Committee on Special Education 6/10/2022 (3 pages)

N. Letter to CSE 6/27/3022 (3 pages)

O. Enrollment Contract 7/21/2022 (5 pages)

P Program description 3

Q. Class schedule and profile 2022/2023 (5 pages)

R. Payment affidavit 11/2/2022 (1 page)

S Tax pages 2021 2

DEPARTMENT OF EDUCATION

No evidence

Footnotes

[1] It is not my role as a hearing officer, to develop or amend the IEP.