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CASE NUMBER:576362 – NYC:229047
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 9, 2024
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 7, 2023
For the Student:
REDACTED Attorney
REDACTED Director of Academic Support
REDACTED
FOR THE DEPARTMENT OF EDUCATION
REDACTED District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 10, 2023
For the Student:
REDACTED Attorney
REDACTED Parent
REDACTED Parent
For the Department of Education:
REDACTED District Representative
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 academic year of 2021-2022.
The parties moved to extend the compliance date on several occasions in light of possible settlement and 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. Accordingly, the requests for extensions of the compliance dates were granted.
Attached to the record are lists of persons who appeared and evidence submitted into the record. The record was closed on February 14, 2023.
BACKGROUND
Student has a language-based disability. He has average cognitive skills. He has difficulties in terms of his ability to organize, to shift and plan ahead. Student has difficulties with attention. He has delays in reading, writing and math skills. (Tr. 53)
The last IEP that was developed for Student was in March 2021. The DOE recommended a 12:1 setting with support. (Exhibit 1)
Parent received a school placement at REDACTED. Parent contacted the school and was advised that there was no available spot. (Tr. 83)
Parent received another placement and was told there was no place because they were at capacity. (Tr 83)
Parent signed a contract with REDACTED. Student began on Labor day in 2016. (Tr 84, Exhibit C)
Parent paid the full tuition. (Exhibit E)
Parent filed a due process complaint to obtain tuition reimbursement for Student’s attendance at REDACTED during the 2021-2022 school year. (A)
DEPARTMENT OF EDUCATION’S CASE
The Department of Education (DOE) was represented by REDACTED. They did not produce any witnesses. It is their position that the Student’s unilateral placement is not appropriate. They maintain that if tuition be awarded, it should be reduced based on the equities. (Tr. 37-38) They submitted evidence in support of their position.
PARENTS’ CASE
Parents were represented by their attorney REDACTED. It is their position that both the DOE recommended program and placement were inappropriate. They concluded that the DOE failed to provide a FAPE to Student for the 2021-2022 school year. They maintain that REDACTED provided an appropriate education. It is their position that Parents are entitled to tuition reimbursement for Student’s attendance at REDACTED for the 2021-2022 school year. They submitted evidence and had witnesses in support of their position.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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 CypressFairbanks 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, DOE did not put on any witnesses to defend their IEP or placement. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. Parent testified as to DOE’s inability to provide a placement with an available seat. 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 2021-2022 school year.
With respect to prong two, Director of academic support at REDACTED provided testimony. She is familiar with Student. (Tr. 52)
REDACTED is a self-contained special education setting for students with language-based learning disabilities. (Tr.51, Exhibit I)
Student attended the middle school program. There are no more twelve students in a class for content area learning. In science and social studies there were two teachers. In reading, writing and math Student was in a class of 6:1. His classes were homogenously arranged with students who work on similar skills. Student was with students who have language skills that may be a strength but who have difficulty with attention skills. (Tr. 64)
Student was in groups that support his skills as well as with other students who are working on similar social development needs. His impulsivity affects his relationships. (Tr 55)
There was professional development for the teachers. There is social development prior to and throughout the school year. (Tr 56)
Witness opined that because of Student’s executive function and attention needs, Student does well in groups of eleven to twelve with the support of more than one teacher. He benefits from the smaller groups of six with one teacher.
She explained that his executive function skills and organization skills impact his ability to process math concepts and his ability to independently work. (Tr. 58)
Student received one to one attention on an as needed basis. (Tr 57)
Student was provided with support for his decoding delays and his ability to learn the rules and then generalize, through Preventing Academic Failure reading program. (Tr. 58)
They used an Orton -Gillingham based reading program which is a research based multisensory sequential program. It supports the reading skills of students who struggle with the development of decoding abilities.
Math program is also based on a multisensory approach to learning combined with a great deal of visuals. (Tr. 59)
The curriculum is for students with language-based learning disabilities. It is an integrated program. (Tr 60)
Witness opined that Student actively participated in the program and demonstrated progress through the 2021-2022 school year. (Tr 60) Parent submitted report cards. (Exhibit F, G) Student is achieving his goals. (Tr. 62) (Exhibit G)
Student struggles with working memory. He requires repetition and chunking of information. He was provided with the ability to ask for clarification. (Tr 63)
Student received counseling. He also has the ability to check in with counselors on an as needed basis. (Tr. 65)
Language and speech pathology is integrated in all of the classes as well as pullout sessions. (Exhibit L) In counseling, Student worked on social development needs and his impulsivity. It is addressed as pull out and throughout the day when needed. (Tr. 70)
Student has electives including visual arts, physical education and dance movement. (Tr. 71)
Student made friends and needed support for social development issues in larger groups. He has become more flexible in his social interactions. (Tr 68) Parent testified that Student is thriving and has friends. He opined that Student made definite progress. (Tr 86)
In DOE’s opening and closing they take the position that REDACTED is not appropriate. (Tr. 98) They provide absolutely no explanation to support said conclusion.
I find evidence establishes that REDACTED provided Student with the supportive and nurturing environment and small classes that he required to make both academic and social progress. Student was placed with others who had similar needs. Student received individual attention. I find evidence establishes that Student did make progress in various areas.
I find Parents met their burden under prong two.
With respect to prong three, DOE in closing asserts that equities favor DOE. They provide no explanation for such conclusion. I find nothing in the record that would prevent Parents from obtaining full relief.
In summary, I find DOE did not provide a FAPE to Student for the 2021-2022 school year, REDACTED was reasonably calculated for Student to receive an educational benefit. I find the equities support Parents. I find Parents are entitled to tuition reimbursement.
ORDER
DOE shall reimburse Parents for tuition paid to Gateway for Student’s attendance during the 2021-2022 school year upon evidence of contract and payment. Sharyn Finkelstein February 18, 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.
EVIDENCE ENTERED INO RECORD
PARENT
A Due process complaint 7/13/22 3
B Notice 8/15/21 3
C School contract 4/21/21 3
D Tuition affidavit 11/12/21 2
E Class Schedule Undated 2
F First semester report card Undated 14
G Second semester report card Undated 14
H Attendance report 6/23/22 1
I REDACTED program description Undated 2
J Neuropsychological evaluation 11/19/21 12
K Counseling report 6/14/22 2
L Speech and language report Spring 2022 2
M Teacher report June 1, 2022 8
DEPARTMENT OF EDUCATION
1 IEP 2021 3/16/2021 41
2 School location letter 8/24/21 3
3 Prior written notice 8/24/21 5
4 Psychoeducational evaluation report 8/27/19 2