New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 23, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTEDD District representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 24, 2023

For the Student:

REDACTED Attorney

REDACTED Director Principal, Junior High 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 the 2021-2022 school year.

The parties moved to extend the compliance date on several occasions for potential settlement and for witness availability. 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 8, 2023.

BACKGROUND

Student presents with delays in academics, language, communication and social skills, all of which affect her classroom performance.

On August 12, 2021 an IEP meeting was convened for Student. Department of Education (DOE) recommended an ICT program with related services at a community school.

At the time of the meeting, Student was REDACTED old and classified as a student with a disability. Student had been attending REDACTED (REDACTED), a small self-contained class. (Exhibit L)

Parent disagreed with the recommendation and informed DOE of her concerns. (Exhibits B and C)

Parent re-enrolled Student at REDACTED. (Exhibit D) Parent filed a due process complaint to obtain direct funding for Student’s attendance at REDACTED for the 2021-2022 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by REDACTED.^[1] They did not put on a case or submit any evidence. (Tr. 36) They cross-examined Parent’s witness.

PARENT’S CASE

The parent was represented by their attorneys REDACTED and REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2021-2022 school year. They maintain that Student’s program at REDACTED was appropriate. They submitted evidence and had witnesses in support of their claim. It is their position that Parent is entitled to direct funding for Student’s attendance at REDACTED for the 2021-2022 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 or submit evidence 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. Parent’s witness opined that an ICT class would not have been appropriate for Student. (Tr. 63) Parent testified as to her concerns with an ICT class. (Exhibit L) I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, the Director Principal, of REDACTED provided testimony. (Tr. 39-72)

REDACTED is a special education school for students with learning disabilities and or other impairments. There were approximately thirty-two students during the 2021-2022 school year. They offer speech therapy, occupational therapy and counseling from providers who are licensed and certified. (Exhibit H)

Student attended grade REDACTED during the 2021-2022 school year. She had difficulties in different academic realms. She had inappropriate social skills.

Student was in a class of eight students, one teacher and two assistants in the room at all times. All the students had similar academic and social needs.

At the beginning of the year, Student was in mid seventh grade level in reading skills and a fourth-grade level in comprehension. Student was in a small group of two for reading. They had a very hands-on approach. By the end of the school year, she was on about an eighth grade-level.

With respect to writing, Student had a difficult time completing sentences. She had a difficult time staying on topic. Teacher used a program which helped guide students on specific needs as they gained skills. By the end of the year, Student was able to write an essay quite coherently.

With respect to math, Student was on about an eighth-grade level. They worked on life skills math, budgeting, estimating, and on becoming more independent with purchasing, using a menu, and credit card. Teacher used real life material. Student was in a group of two with a teacher. By the end of the year, she had acquired different life skills for math.

Student had history and geography and made progress.

Student has social and emotional needs. She had difficulty with some of her social skills. Speech therapist and teacher of social skills worked with her to understand facial expressions and Student became more self-aware.

In social skills class, they used different scenarios to come up with different ways to react.

Student participated in social social-emotional groups. They used different programs to help them cope with different situations. Witness explained that it was a great group for student who felt this was particularly pertaining to her due to personal circumstances.

Student made social emotional progress. She became calmer and more confident with better coping skills. (Tr. 57)

Student was provided with vocational skills. She learned culinary skills, hair styling skills, pre-office skills, and music skills.

Student received speech therapy and counseling. In speech therapy, they worked on pragmatic skills. In counseling, they worked on building trust and having a positive self-image. They learned relaxation techniques. There was collaboration between teachers and therapists.

Parent submitted evidence of progress reports. (Exhibits I, J, K)

Witness testified that Student’s biggest area of progress was social and emotional. She described her as a “changed person”. She was calmer and confident. (Tr. 63)

Parent described Student’s progress socially and as a learner. She was able to graduate in June 2022. (Exhibit L)

I find that REDACTED was reasonably calculated to enable Student to receive and educational benefit. I find the small class size enabled Student to receive the individualized attention she required. I find Student made progress in all areas and had preparation for the future. I find REDACTED was appropriate. I find Parent met their burden under prong two.

With respect to prong three, I find nothing in the record that would prevent Parent from obtaining 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 provided a tax return (Exhibit G). Parent testified as to her responsibility for the contract and her inability to pay the tuition. (Exhibit L) Parent has not paid any money toward the tuition. The tuition is $71,000. (Exhibit (E). I find Parent is entitled to direct funding.

RELIGIOUS PORTION OF SCHEDULE

Parent submitted Student’s schedule. (Exhibit F) Student had prayer each morning for fifteen minutes and Bible study three times a week for half an hour. I find religion was a small portion of the schedule. I find DOE should not have to fund the religious portion. The total amount of tuition was $71, 000. (Exhibit D and E)

In summary, I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year. I find that REDACTED was an appropriate program, and equities favor Parent. I find Parent is entitled to direct funding. I find tuition should be reduced for religious portion of the schedule.

ORDER

The DOE shall directly fund tuition for Student’s attendance at REDACTED during the 2021-2022 school year in the amount $62,125 upon evidence of contract. Sharyn Finkelstein April 8, 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 INTO THE RECORD

A DPC 8/14/2022 3

B. Parent Letter 8/18/2021 (2 pages)

C. Parent Letter 10/20/2021 (3 pages)

D. Contract 2021/2022 (3 pages)

E. Payment affidavit 6/13/2022 (1 page)

F. Schedule 21/22 (1 page)

G. Federal 1040 form 2019 (2 pages)

H Program Description N/A 2

I. Counseling progress report 21/22 (4 pages)

J. Speech progress report 21/22 (4 pages)

K. Teacher progress report 21/22 (9 pages)

L. Parent testimony affidavit 3/16/2023 (2 pages)

Footnotes

[1] At the initial hearing date, REDACTED represented the DOE. They had just been appointed and did not present any opening statement.