New York City Department of Education, Impartial Hearing Decision

Case Number: 576407 – NYC: 229092

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 10, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 2, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Parent

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 23, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Assistant Head of School for Lower School and Middle

School 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 2022-2023 the 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 March 27, 2023.

BACKGROUND

Student is REDACTED old with a classification of intellectual disability. (Tr. 79)

He has been diagnosed with Mosaic Down Syndrome and has significant needs in the area of speech-language, social emotional functioning, executive functioning, and in all areas of academics. Student struggles with expressive language and with social relationships. He has difficulty maintaining friendships. (Tr. 80)

Student has attended REDACTED since the sixth grade.

Parent sent DOE a ten-day notice. (Exhibit D)

Parent enrolled Student for a twelve-month school year at REDACTED for the 2022-2023 .

Student is in the REDACTED grade. He needs support with regulating his emotions and asking for help, in making and sustaining friendships, in expressive language and conversation skills. (Tr. 60, 80) Parents filed a due process complaint in order to obtain funding for Student’s attendance at REDACTED on a twelve-month basis during the 2022-2023 school year as well as transportation to and from school. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) did not appear at the date for them to present their case. DOE was represented by their attorney REDACTED at the pendency hearing and on the day Parents presented their case. They did not put on a case or submit any evidence. (Tr. 44)

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 point out that the DOE did not present any witnesses or submit any evidence. It is their position that REDACTED provides Student with the supports he requires which enables him to make progress. It is their position that Parents met their burden under prong two. It is their position that Student requires round trip transportation. It is their position that the equities favor Parents. They submitted evidence and presented witnesses in support of their position.

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 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. They failed to appear on the hearing date scheduled for them to present their case. 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 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, The Assistant Head of School at the Middle School at REDACTED provided testimony. (Tr. 53-78).

They service students in REDACTED, REDACTED and REDACTED grade who range from REDACTED -to -REDACTED years of age. (Tr. 56)

Parent submitted a general description of the REDACTED program. (Exhibit G)

Student is in REDACTED grade. (Tr. 59) There are twelve students in Student’s cohort with a head -teacher, assistant teacher and three paraprofessionals. (Tr. 60)

Students have comparable academic levels, social skills and daily living skills. The cohorts are blends of REDACTED, REDACTED and REDACTED grade. (Tr. 61)

Parents submitted Student’s schedule. (Exhibit J) Related services providers push into the classroom during the advisory period at the beginning and end of each day. They make sure students have prepared themselves for the day. (Tr. 62)

Students meet with other schools and teachers and related service providers during community block. It is part of a school assembly where everyone comes together.

A class is co-taught taught by a physical and occupational therapist. They work with half the cohort. (Tr. 63) The other half of the cohort goes to social skills.

During enrichment students are pulled for individual or small group sessions with their related service providers. They are not pulled out of academic subjects to receive therapy. (Tr.64)

Daily living skills are addressed during adaptive skills. (Tr. 64

Parents submitted a list of all the skills that they work on in each particular subject. Each subject has a progress report (Tr 655, Exhibit L)

Progress is tracked through formal and informal assessments throughout the year. (Tr 66)

Student’s reading skills are supported through scaffolding, small group instruction visuals, and by using a multisensory approach.

In writing, they use technology as needed, verbal prompts, visual cues, graphic organizers, templates, and frequent check ins.

In math, they have lab twice a week which focuses on problem solving. They have everyday math which students will use on a regular basis. They use a lot of visuals, small groups, scaffolding and manipulatives.

Students take trips to the store and do different types of shopping. (TR 70

In social studies, students work on playing a part in the community.

Related service providers push in. They provide an integrated program to address executive functioning, speech and language at the same time as Student is in academics.

Student receives counseling, speech and occupational therapy.

Witness opined that Student is making progress. Student made progress in advocating for himself, asking for help, regulating his emotions, and working independently. Parents submitted evidence of progress reports. (Exhibits K and L)

The summer program is designed to prevent regression over the summer. There are recreational opportunities but the program is academic in nature. (Tr. 76)

Parent explained that Student had made significant progress since he has been at Cooke. (Tr 82) He has done well this year with making friend and is excited about school. He holds on to skills once he acquires them.

DOE takes the position that the evidence does not support the appropriateness of the placement. DOE did not cross-examine any of Parents’ witness. I find no basis for their position.

I find that REDACTED School is appropriate for Student and provided the supports that enabled him to make progress in all areas.

With respect to prong three, there is nothing in the equities that would bar Parents from full relief.

REQUEST FOR TRANSPORTATION

Under New York State Education law § 4402(4)(d), the Department is required to provide transportation up to a distance of fifty miles to and from a nonpublic school if the Committee on Special Education (“CSE”) or School Based Support Team (“SBST”) has identified the student as requiring special education services, and if the student attends the nonpublic school for the purpose of receiving services or programs similar to those recommended by the CSE/SBST. Furthermore, the IDEA requires school districts to provide related services, including transportation, “as may be required to assist a handicapped child to benefit from special education.” 34 C.F.R. § 300.24.

Parent testified that Student takes the bus to and from school. He would not be able to get to school using public transportation. (Tr. 84) I find Student is entitled to busing to and from school.

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

Parent submitted evidence of the contract. (Exhibit F) Parent testified that they are responsible for the tuition for the 2022-2023 school year. (Tr. 84)

ORDER

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

The DOE shall continue to provide Student with busing to and from the REDACTED

School.

Sharyn Finkelstein March 30, 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 THE RECORD

A. Processed Impartial Hearing Request with Cover Letter 7/5/2022 (10 pages)

B /25/2021 25

C Interim order re: Transportation 9/10/2021 6

D. Ten-Day notice and Proof of mailing 6/16/21 (4 pages)

E. Neuropsychological Evaluation 1/26/2020 (11 pages)

F. Enrollment Contract 5/4/2022 (2 pages)

G Program Description REDACTED School 2022-2023 7

H Program Description REDACTED 2022 2

I. Student Schedule REDACTED 2022-2023 (1 page)

J. Student Schedule REDACTED School 2022-2023 (1 page)

K. Student Progress Report, REDACTED 2022 (6 pages)

L. Student Progress Report, REDACTED School 2/3/23 (24 pages)