New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 30, 2022

For the Student:

REDACTED Attorney

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 27, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCHH 7, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Director of Speech Pathology 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 2022-2023 school year.

The parties moved to extend the compliance date on several occasions, initially for settlement negotiations and ultimately for 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 March 10, 2023.

BACKGROUND

Student has significant disabilities and severe medical diagnoses. He is classified as a student with multiple disabilities. (Tr. 90)

Student is REDACTED years old and has attended REDACTED since 2018.

Student cannot talk or walk and he requires a G-tube. He has seizure disorder, cerebral palsy, and vision issues. Student needs help with eating, dressing, and going to the bathroom. (Tr. 91)

On April 6, 2022, an IEP meeting was held for the 2022-2023 school year in which the Department of Education (DOE) offered Student a 12:1:4 program for a twelve -month school year.

Parent expressed her concerns at the meeting. She never received an IEP or placement. (Tr 94)

Parent sent a ten-day notice and received no response. (Exhibit B)

Parent has always maintained that this program recommendation is not appropriate.

On September 17, 2022 Parent signed a contract to enroll Student at REDACTED for the 2022-2023 school year. (Exhibit C)

Parent filed a due process complaint to obtain funding for Student’s attendance at REDACTED for the 12-month program for 2022-2023 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The DOE was represented by their attorney REDACTED. They conceded prong one. (Tr. 35)

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 2022-2023 school year. They maintain that REDACTED is appropriate and Parent is entitled to direct funding for Student’s attendance during the 2022-2023 school year. 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 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.

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

With respect to prong two, Director of speech and language pathology at REDACTED provided testimony. She is familiar with Student.

REDACTED is a school that specializes in servicing and educating students with a specific focus on students that have a brain-based disorder.

The curriculum centers around literacy. They address feeding and swallowing issues related to safety. They offer assistive technology in the form of augmentative and alternative communication. This enables students to interact and engage in educational materials. They adapt traditional educational materials for students to access their educational material. (Tr 51-52)

They have a robust ADL program. Toileting is a focus as well as dressing and other activities of daily -living.

Students have opportunities to go out into the community.

They offer class sizes of 6:1:1 or 8:1:! based on the individual student.

They have speech language pathologists, occupational therapists, physical therapists, and teachers of the visually and hearing impaired. They have nurses on staff. They have an assistive technology department with a team that works to ensure that every student has access to the assistive technology. They have a BCBA, art therapy and music therapy. (Tr. 56

Student is currently in a 6:1:1 classroom. Every student has their own individual paraprofessional. (Tr. 61)

Student presents with cortical vision impairment. He does not take in a lot of visual information and uses his auditory system to learn language. Witness explained that the 6:1:1 class has less auditory and visual distractions. (Tr 62

Most of the students in the class are in wheelchairs. They all need assistance and use assistive adaptive equipment to walk. They use forms of augmentative and alternative communication to communicate their ideas and thoughts. (Tr. 62)

Student has cortical vision impairment. A lot of his work has to be modified. (Tr. 64) He does not use verbal speech to communicate. He uses augmentative and alternative communication systems.

Student uses a wheelchair. He uses a gait trainer to be ambulatory. He requires maximum assistance to participate in a lot of daily living activities. He is given opportunities to practice activities of daily living, getting dressed, toileting and hand washing in order to be as interdependent as possible.

Student receives occupational therapy five times a week, physical therapy five times a week, and speech and language therapy four times weekly. All sessions are sixty minutes. He receives vision services three times a week and assistive technology on an on -going basis. (Tr. 65-66)

Student does not receive food by mouth. He presents with at risk for aspiration. All feeding is through a G- tube provided by a nurse at school. As part of his speech goals, they work on his swallowing and saliva management.

Student has made progress in his ability to access and participate in academic sessions. His writings skills have improved. He is more active in changing and dressing. He is improving in his ability to sit.

Witness opined that REDACTED is appropriate. Student made progress in all areas. They provided him with a specialized environment with a small class size ratio. They provided him with a one- to -one paraprofessional. They address his nursing curriculum. He is provided with assistive technology so that he can learn math concepts.

Parent opined that Student has made progress. He is safe. She opined that REDACTED understands his needs. They address his assistive technology needs and deal with toileting and feeding. They take him out into the community and he has friends. (Tr. 96)

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 2022-2023 school year. I find REDACTED was reasonably calculated to enable Student to receive an educational benefit. 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 E) I find Parent is entitled to direct funding.

In summary, I find that DOE did not provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate and equities favor Parent. I find Parent is entitled to direct funding for Student’s attendance at REDACTED.

ORDER

DOE shall reimburse Parent for tuition paid and directly fund any remaining balance to REDACTED for Student’s attendance for the 2022-2023 school year upon evidence of contract and payment.

Sharyn Finkelstein

March 11, 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.

PARENT

A Request for impartial hearing July 1, 2022 11

B Ten-day notice June 17, 2022 4

C Enrollment contract September 17, 2022 5

D WITHDRAWN (Tr. 101)

E Tax return 2021 2

F REDACTED individualized education plan June 1, 2022 23

G Classroom schedule 2022-2023 2

H Program description 2022-2023 11

I Quarter 1 progress report July 11, 2022October 14, 2022 6

J Attendance record 2022-2023 6