New York City Department of Education, Impartial Hearing Decision

REDACTED

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 in light of witness availability and receipt of final transcript to allow time to render a decision. 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 13, 2023.

BACKGROUND

Student has attended REDACTED (REDACTED) since September 2019. (Tr. 38)

Student is diagnosed with a genetic mutation. She has seizures and poor body awareness. She has significant difficulties with fine and gross motor skills. She can walk but wears a helmet for safety. (Tr. 53)

Student’s disability affects her ability to self-regulate, her communication, and her ability to interact with people in her environment. (Tr. 54)

Student does not have verbal speech and communicates with assistive technology. Students requires maximum support to focus. (Tr. 54)

On January 26, 2022 an IEP meeting was held for the upcoming 2022-2023 school year. The DOE recommended an 8:1:1 program. Parents did not agree with the program. Parent sent a ten-day notice to DOE. (Exhibit B)

Parents continued to enroll Student at REDACTED (Exhibit C)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. They did not put on any witnesses and did not submit any evidence. They did not put on a prong one case. (Tr. 25)

PARENTS’ CASE

The parents were represented by their attorney REDACTED. It is their position that the DOE did not provide a FAPE for the student for the 2022-2023 school year. It is their position that REDACTED continues to be an appropriate placement. They maintain that nothing in the equities would prevent Parents from obtaining direct funding for the entire program at [REDACTED] for the 2022-2023 school year.

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 parent 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 a timely or appropriate program or placement. Team did not go over goals with Parent. (Tr. 73) They did not review the provided evaluations. (Tr 73 They did not recommend an assistive technology evaluation for Student who is nonverbal. (Tr 74) DOE did not dispute any of the allegations. I find DOE did not meet their burden under prong one. I find that the DOE did not provide a FAPE to Student for the 2022-2023 school year.

With respect to prong two, REDACTED is a 12-month independent school. All students have severe and multiple disabilities including cognitive delays, mobility and communication delays. The general profile of the school is those that are diagnosed with traumatic brain injuries. (Tr. 41) There are 105 students at the school. (Tr 44)

Students have a one-to-one paraprofessional in order to address intensive ADL skills. They assist with the routine of toileting, feeding, health and hygiene. Every classroom has a bathroom. (Tr. 43) Specific ADL skills and goals built into occupational sessions. (Tr 43

Staff includes teachers, associate teachers, school nurses and related service provides. They have teachers of the visually and hearing impaired. There are social workers and adaptive technology specialists. (Tr 44)

Students are provided with access to the community including visiting various shops and museums. (Tr. 44)

Student receives speech, occupational and physical therapy. All sessions are sixty minutes and provided on an individual basis (Tr. 50, 54) ) Frequency is based on Student’s individual needs which are based on ongoing assessments.

Student is in an 8:1:1 classroom. Student is placed based on age, similarity of need of other students, functional range of students, learning needs, and socialization needs. (Tr 51) All of the students in Student’s class have same type of brain-based disorder that affects their ability to communicate, ambulate, independently function and engage in tasks of daily living. (Tr. 52)

Student is provided with assistive technology. All of the students in her class use alternative communication device (AAC) based on their individual needs. (Tr. 53) They support Student’s communication with a pre-programable switch. She can access the switch which is connected to the voice output communication. (Tr.57)

Student is dependent for all self-care skills. She requires close supervision when ambulating as well as for toileting. She has an adapted toilet chair. Student has to be provided with small bites of food at a time. She is provided with maximum assistance to scoop food with a spoon. Student requires moderate to maximum assistance to put-on or take off her jacket. (Tr 58) She is provided with a special activity chair in order for her to participate in the classroom. She uses an alternative pencil to help her participate in writing activities. (Tr 60

Student is able to participate in academic sessions for forty-five minutes at a time. She receives instruction in reading, writing and math. (Tr. 60

Parent testified as to progress. She described it as a “really good year. She described Student as making a lot of progress. (Tr. 77) Parent submitted evidence of progress. (Exhibits F and G)

Parent signed a contract for a twelve-month school year at [REDACTED]. Tuition is $194, 080 which includes her one-to-one paraprofessional. (Exhibit C)

DOE argues in closing that Parent did not meet their burden under prong two. They do explain the basis for their position. (Tr.81)

I find that evidence is undisputed that REDACTED provides Student with a small class size, individualized therapies, and modifications based on her needs that she requires in order to receive an educational benefit and make progress. I find that REDACTED is appropriate for the 2022-2023 school year. Parent met their burden under prong two.

With respect to prong three, there is nothing in the equities that would bar Parent from receiving 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 she is aware of her responsibility under the contract. . Household income around $25,000. (Tr. 77) (Exhibits K and M)

I find that she is entitled to direct funding for any remaining balance of the tuition.

ORDER

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

Sharyn Finkelstein Esq.

February 18, 2023

PLEASE TAKE NOTICE

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 RECORD

PARENT

A Request for impartial hearing 7/5/2022 10 pgs.

B Ten-Day Notice 6/17/2022 4

C Enrollment contract 5/16/2022 5

D Payment affidavit 7/14/2022 1

E Classroom schedule 2022-2023 2

F Program description 2022-2023 11

G Quarterly progress report 2021/2022 11

H Attendance records 2022-2023 4

I REDACTED IEP 6/1/2022 20

J Quarterly I progress report 7/11/2022 5

K Tax returns 2018 2

L Attendance record 2022-2023 7

M Tax returns 2021 2