New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 3, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 9, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED REDACTED, Lower School Director

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 28, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Special Education Teacher, REDACTED

FOR THE DEPARTMENT OF EDUATION

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 twelve-month 2022-2023 school year.

The parties moved to extend the compliance date on several occasions for witness availability and preparation for hearing. 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 April 14, 2023.

BACKGROUND

Student has a diagnoses of autism spectrum disorder as well as a sensory processing disorder. Student has medical needs that are prevalent throughout the school day. He has gastroesophageal reflux disease, (GERD) (Exhibit I)

Student requires a lot of repetition. He requires a lot of sensory breaks and positive reinforcement. He requires constant redirection for him to stay on task. (Tr. 51)

On July 26, 2021 an IEP meeting was held. They recommended a 12-month 8:1:1 special class in a REDACTED program.

Parent provided notice to DOE of their intent to unilaterally place Student. (Exhibit D)

Parents re-enrolled Student at REDACTED on a 12- month basis for the 2022-2023 school year. (Tr. 74, Exhibits S, T)

Parents filed a due process complaint to obtain tuition funding for Student’s attendance at REDACTED for the 12-month 2022-20323 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. They did not put on a case or submit any evidence. (Tr. 33) It is their position that REDACTED is not appropriate and the requested relief should be denied.

PARENTS’ CASE

The parents were 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 twelve-month program at REDACTED continues to be appropriate. They submitted documents in support of their claim. The Director of REDACTED Lower School and a special education teacher at REDACTED provided testimony. It is Parents’ position that they are entitled to tuition funding for Student’s attendance at REDACTED for the 12-month program 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 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. 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, REDACTED offers a continuum of care for school-age children with a variety of special educational needs. They individualize the program for each student. (Tr 42-43) They look at the whole child. (Tr. 46)

They follow the New York State core curriculum standards by using a variety of different curriculums. (Tr. 44) They pull from a variety of places in order meet the student’s needs.

They utilize applied behavioral analysis (ABA) under the supervision of a board -certified behavioral analyst. (BCBA). They use TEACCH and the DIRFloortime model.

Witness explained that they utilize multiple types of methodologies and curriculum to individualize the program and meet needs of the individual student. (Tr. 44-45)

They group students with similar learning needs. Witness described it is as child-specific. (Tr. 47)

They have weekly team meetings to see how students are progressing towards their goals and about any needed adjustments.

They submit progress reports three times a year. (Tr. 50)

Student is in a 12- month program. Witness testified that during school vacations or weekends, Student would sometimes have regression in skills. (Tr. 52) Witness opined that a ten-month program would be detrimental to Student. He is in the 12- month program to ensure that his academic skills, his therapeutic skills, and his social-emotional needs are worked on year-round. (Tr. 77)

Student has daily access to the school nurse. Student has a one- to- one paraprofessional. He is in an 8:1:2 class and receives related services of speech, occupational therapy, physical therapy, creative arts therapy, consisting of art, music and physical education. Student has an AAC device. (Tr. 53. 74)

They based Student’s program on his evaluations, progress reports and medical information.

Student was with students that are cognitively, academically socially and behaviorally at his same level. (Tr 54)

Student made progress. He is more focused. His medical needs are under control because of the full -time nurse and classroom staff. He is able to communicate with his alternative and augmentative device. There are services to help parents and staff learn how to use his device. (Tr 58)

Student has made progress in his attention, communication and his ability to complete academics. (Tr 56)

Student receives pullout therapy for occupational and physical therapy in the sensory gym. He receives speech therapy in the speech therapy office.

Student requires a one- to- one paraprofessional to be with him at all times so that if he has a pain crisis there can be proper intervention. (Tr. 80)

Student’s schedule was designed to provide him with the mandated amount of occupational therapy, physical therapy, speech therapy. He has math every day and reading and writing every day. He has specialty classes, art and music therapy as well as yoga and movement class. (Tr. 83)

Witness conducted assessments to help her craft goals. She regularly monitors his progress. He continues to produce excellent work in all subjects. (Tr 84)

She described his progress with identifying letters, counting and reading. He has made progress with his sight words. (Tr 87-88)

They provide Student with visual pictures, blocks, different physical objects, puzzles and manipulatives.

Student has an AAC device, a talking device which supports his communication and his verbal speech. They are working on teaching him to initiate more functional communication. (Tr. 92)

All of the related service providers meet twice a month as a group. Staff is well versed on his talking device. They prompt him to use multiword phrases in order to foster independence. (Tr. 94)

Student learns through repetition. They are helping him to engage more in collaborative play. He has a social skills class. (Tr. 94)

Student has improved in advocating for himself, verbally and also with his AAC device, He uses more multiword phrases. He has improved in his following directions. He is engaging more in collaborative play with support (Tr 95)

Student’s behavioral needs are very much coordinated with his pain crises. (Tr. 96) The entire team is trained on how to manage and navigate his pain attack. The nurse comes down very quickly to provide him with medicine.

Student is much better at advocating for himself with his verbal speech and his AAC device (Tr. 99)

Student has improved in his activities of daily living. They work on continuing to promote independence in multistep routines. (Tr. 104), Student is not yet toilet trained. His paraprofessional takes him to the bathroom every hour. He is getting used to the washing hands routine. . DOE argues in closing that the program is not appropriate. They argue that there is no explanation for the design of Student’s program. (Tr. 110)

I find evidence establishes REDACTED provided Student with an individualized program to meet his individual needs. Evidence establishes that school had several things in place to address his medical conditions, including his own paraprofessional and availability of a nurse. Student has use of an AAC device. There was testimony about Student’s various needs and how they were addressed. I find Evidence establishes that Student has made progress in various areas. I find Student continues to require a 12-month program. I find REDACTED continues to be appropriate. I find Parents met their burden under prong two.

With respect to prong three, I find no equitable considerations that would result in a denial or reduction of requested 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)

Parents submitted an affidavit from their accountant who testified as to Parent’s change in employment and projected reduction in income. (Exhibit DD) I find Parents are entitled to direct funding for any remaining balance of the tuition for the 2022-2023 school year.

I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate and the equities favor Parent. I find that Parent is entitled to funding for the tuition. I find that Student is entitled to the continuation of busing to and from the school.

ORDER

The DOE shall reimburse Parents and directly fund any remaining balance for Student’s attendance at REDACTED for the 12-month program during the 2022-2023 school year, upon evidence of contract, payment and attendance.

Sharyn Finkelstein April 15, 2023 Impartial Hearing Officer

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

PARENTS

A. Request for impartial hearing 7/5/22 (13 pages)

B 19/20 findings of fact and decision 2/18/20 16

C 22/23 order 8/16/22 2

D. Notice of unilateral placement 6/17/22 (7 pages)

E. Neuropsychological evaluation 5/20/21 (7 pages)

F. REDACTED Pediatrics letter 4/14/2022 (1 page)

G. Medical accommodation request form 6/2022-8/2022 (8 pages)

H. Health examination form 6/7/2 (1 page)

I GI notes, REDACTED Children’s Hospital 1/3/22 18

J. REDACTED Therapy progress note 7/29/22 (13 pages)

K. Assistive technology consent letter 7/2021 to 8/21 (4 pages)

L. REACTED neurology report 2/16/17 (6 pages)

M. GI operative report 11/5/21 2021 (6 pages)

N. GI operative report 3/30/22 2022 (6 pages)

O GI visit logs September 2021 too June 2022 various 17

P. placement email June 2022 22/23 (3 pages)

Q. REDACTED Spring 2022 progress February 2022report June 2022 (17 pages)

R REDACTED program description 2022-23 7

S. REDACTED summer program enrollment contract 6/13/22 (8 pages)

T REDACTED program enrollment contract 7/28/22

8

U REDACTED summer 7/2022-8/18/2022 2

V. REDACTED program 2022 progress report 8/4/22 (17 pages)

W. ATA progress report 8/5/22 (7 pages)

X REDACTED 2022-2023 2

Y. progress report September 2022 to January 2023 Fall 2022 (17 pages)

Z Areas of instructional therapeutic focus 8/28/22 7

AA Attendance report 9/22-1/2023 4

BB REDACTED tuition affidavit 12/1/2022 6

CC Proof of payment 6/2022-9/2022 6

DD 2020-2022 tax affidavit 2/27/2023 4