New York City Department of Education, Impartial Hearing Decision

Case Number: 575550 – NYC: 228273

FINDINGS OF FACT AND DECISION

Student’s Name [REDACTED]

Case Number 228273

Date of Birth [REDACTED]

District [REDACTED]

Hearing Requested By Parent

Date of Hearing February 17, 2023

March 27, 2023

May 3, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close May 16, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 17, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 27, 2023

For the Student:

[REDACTED] Legal Assistant

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 3,2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED], Clinical Director, [REDACTED]

For the Department of Education:

None

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] 1(hereinafter referred to as “Student”) for the 2022-2023 school year.

The parties moved to extend the compliance date on several occasions for witness availability and prepare for hearing. I weighed the cumulative impact of the relevant factors and found that the need for 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 May 16, 2023.

BACKGROUND

Student is [REDACTED] old and in the [REDACTED] grade.

Student is diagnosed with Attentional deficit hyperactivity disorder, (ADHD), general anxiety disorder and depressive disorder. (Exhibit B) Student has significant social, emotional, attentional and executive functioning struggles. Student is bright but struggles quite a bit with school. (Tr. 77, 84) Student had first engaged in school refusal three or four years ago. Student was disengaged from life. Student became nervous to engage with adults. Student struggled with their academics. They had difficulty completing assignments. Student had been failing very badly in their previous school. (Tr. 86)

1

Student is known as [REDACTED]

DOE developed an IEP for the 2022-2023 school year. Parent did not agree with the recommended program and on June 17, 2022 informed CSE of his concerns. He provided notice that he intended to place Student in a private school. (Exhibit I)

Parent enrolled Student at the [REDACTED] school. ([REDACTED]) (Exhibit G)

Parent filed a due process complaint to seek reimbursement and direct funding for any remaining balance for Student’s tuition at the 12 -month 2022-2023 school year at [REDACTED].

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney [REDACTED] at the initial hearing date. DOE did not appear on the following dates. They did not submit any evidence or produce any witnesses. (Tr. 33)

PARENTS’ CASE

The parents were represented by their attorney [REDACTED] from the office of [REDACTED]. It is their position that the DOE failed to offer a FAPE to Student for the 2022-2023 school year. They point out that the DOE did not present any witnesses or submit any evidence. It is their position that the program at [REDACTED] provided student with an individualized program to meet their specific needs. They maintain that the equities favor the Parent. They submitted evidence and presented witnesses in support of their position. In summary, it is their position that Parent is entitled to reimbursement/direct funding for the 2022-2023 12- month school year at [REDACTED].

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 or submit any evidence. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. It is their position that the DOE recommended a program that contradicted the recommendations in the neuropsychological evaluation and private evaluations. DOE did not dispute any of the allegations. I find DOE did not meet their burden under prong one. I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year.

With respect to prong two, DOE did not appear on the day Parent presented their case. [REDACTED], a licensed clinical psychologist and the clinical director at [REDACTED] provided testimony. (Tr. 60-83) [REDACTED] provides clinical and academic support to helps students through graduation and prepare them for life afterwards. Students have complex diagnostic profiles. They usually carry several diagnoses which occur at the same time. Most common are ADHD, anxiety disorder and depressive disorders. The age range is from [REDACTED] through [REDACTED]. The average class size is five to ten students with a 4:1 student to teacher ratio. They have five full time clinical staff. Students are required to have a therapist outside of school and the clinicians coordinate with the outside therapists.

The curriculum is substantially equivalent to the New York State Common Core. Teachers use a combination of direct instruction, discussion, hands on experiences, small group work and do a lot of differentiation with input from the coordinators. The learning specialist is the coordinator of student life and learning.

Students are supported through the academics, through the advising and through the therapeutic support. Every Student is assigned an adviser. They work with the groups of five to nine students. Witness described them as the point person for the students. Students meet in the advising group three times every day. Students also have an individual meeting where they view a weekly progress report. Each teacher provides information about their performance in each of their classes.

Every day the advisors and clinical staff and administration attend a morning meeting to see if there are any concerns about a particular student that requires any type of shift in academic or clinical areas.

Every student has a personalized schedule created by the curriculum coordinator. They look at prior school records, testing and their application. Student then may choose electives.

There is additional time built into daily schedule for additional academic support. They have daily student prep time four times a week. The schedule is based on individual needs.

At the end of the day there is half an hour of afterschool study time four times a week. Student work with teachers in any area needed for additional academic support. Students shave access to the learning specialist either to push into classes or to pull them out as needed.

Student receive educational evaluation at the end of every quarter.

They have an on-demand counseling center. Students are able to access support any time during the day as needed.

Students have opportunities to receive one to one instruction on an on needed basis.

Parents have a lot of communication and involvement with the staff.

Student has personalized scheduling, weekly check-ins with the advisory. Student initially had difficulty with sleep but they provided positive reinforcements and they are more engaged at school. She opined that Student’s self-esteem increased tremendously this year. (Tr. 78)

Witness described the strategies used to address Student’s needs. Academically they provide small classes, engage Students in their interests, and there is collaboration between the clinical team, parents and the outside therapist and the advisory support. Student receives a lot of support around executive functioning and their symptoms of ADHD. They provide encouragement to participate in school clubs which has helped facilitate connections. Student improved socially.

Witness opined that it is important to have access to the on demanding counselling center. She explained the importance to Student of not having to wait for a scheduled appointment.

Student has improved in their attendance and timeliness and overall engagement with the school. (Tr. 81) Academically their grades have been A’s and B’s. Student has made the honor roll every quarter. They have made good connections with advisers and other adults and peers.

Witness opined that Student benefits from a 12-month placement. Student has a history of school refusal. She opined that a lengthy break from school would put them at risk to regress. Consistency is important and they require consistent access to counseling and advising.

Parent described how much better things became since Student began attending [REDACTED]. He opined that the key factors are the teachers who understand theirs type of changes. Student is able to receive individual attention. Class size is small. He opined that being in school with students who are in similar situations has been “incredibly valuable. “ There is a “really positive environment. He opined that Student requires small class size. He explained the importance of therapeutic supports at any time needed. (Tr. 86-88)

He opined that Student requires a twelve-month program He explained that without obligatory structure Student can fall into negative patterns. Student kept up their routine during the summer. In prior years the summer break led to cementing very negative patterns, in activity and disengagement. (Tr. 88)

Parent opined that Student had made a “huge amount of progress. (Tr. 89) They get better grades, attend on a more regular basis and are more engaged in other school activities including social activities.

I find evidence is undisputed that [REDACTED] provides Student with the type of environment they require including small class size and a therapeutic setting. Evidence is undisputed that Student made progress at [REDACTED]. I find that Student requires a 12 -month school year in order avoid regressions. I find [REDACTED] in appropriate and Parent met their burden under prong two

With respect to prong three, Parent was open to a public -school placement. Parent provided notice of their disagreement with the recommended program and placement. I find nothing in the record that would prevent Parent from obtaining the requested relief. I find Parent met their burden under prong three.

I find DOE failed to provide a FAPE to Student for the 2022-2023 school year. I find a twelve-month program at [REDACTED] is appropriate and equities favor Parent. I find Parent is entitled reimbursement for Student’s tuition for 12-month placement at [REDACTED].

I find Student is entitled to door-to door special transportation/suitable transportation to and from school as mandated by law.

ORDER

The DOE shall reimburse Student’s tuition and directly fund any remaining balance for the twelve-month program at [REDACTED] for the 2022-2023 school year, upon evidence of contract, payment and attendance. Sharyn Finkelstein May 23. 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

DOCUMENT DATE PAGES

A. Hearing request 11/30/2022 11 pages

B. Neuropsychological and educational evaluation 11/1/2019 21 pages

C. Decision 6/14/2021 7 pages

D. Recommendation from psychiatrist 3/31/2022 3 pages

E. Letter from [REDACTED] 4/4/2022 2 pages

F. Proof of payment [REDACTED] 6/2/2022 5 pages

G. [REDACTED] enrollment contract 6/6/2022 3 pages

H. Email to CSE submission of documents for IEP request 6/7/2022 1 page

I. Ten-day notice 6/17/2022 4 pages

J. Ten-day notice confirmation 6/17/2022 1 page

K. Letter from therapist 7/13/2022 1 page

L. Proof of payment [REDACTED] tuition 8/1/2022 4 pages

M. Pendency form 8/22/2022 2 pages

N. Correspondence re description 8/16/2022 2 pages

O. Payment approved [REDACTED] tuition 11/2/2022 1 page

P. [REDACTED] tuition affidavit 11/2/2022 1 page

Q. [REDACTED] School program 11/2/2022 2 pages

R. [REDACTED] Educational evaluation 1/25/2023 8 pages

S. [REDACTED] School educational evaluation 1/25/25/2023 8 pages

T. [REDACTED] Class Schedule N/A 2022-2023

DEPARTMENT OF EDUCATION

No evidence