New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 31, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 3, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Educational Supervisor, REDACTED

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 2022-2023 school year.

The parties moved to extend the compliance date on several occasions, initially for possible settlement, for witness availability and preparation for hearing. 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 6, 2023

BACKGROUND

Student is REDACTED years old and has a classification of autism. (Exhibit A, B)

On February 18, 2022 an IEP meeting was held for Student’s upcoming 2022-2023 school year. DOE recommended a 12:1:1 setting. (Exhibit B)

A school location letter was sent with a REDACTED placement. (Exhibit E) Parents sent email with their concerns about the school. Student had been recommended for same school for the prior year. (Exhibit F) There is no evidence of any response from the DOE.

Parents enrolled Student at REDACTED School for the 2022-2023 school year. (Exhibit G)

Parents filed an impartial hearing to obtain reimbursement/ direct funding for Student’s attendance at the REDACTED School during the 2022-2023 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. 28) They cross-examined Parents’ witness.

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 the REDACTED is appropriate and the equities favor Parents. They submitted documents into evidence. The Educational Supervisor at the REDACTED who is familiar with Student provided testimony. (Tr. 38-68) Parent provided testimony. (Tr. 69-78) It is Parents’ position that they are entitled to direct funding for Student’s attendance at the REDACTED for the 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 or placement. 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 is a very small private school who serve students with learning disabilities in academics, as well as issues with attention and social challenges.

Curriculum is provided for all academic classes and designed for their students but aligned with New York standards. (Tr. 39-40, Exhibit I) They provide multisensory languagebased program within a small setting. (Tr 60)

Witness described Student’s schedule in detail. (Exhibit J)

Transition planning begins in eleventh grade and Parents are provided with support. (Tr. 61)

Every class has a head teacher who instructs the class and writes lesson plans. There is an assistant teacher who walks around to make sure everyone is on task. collects work, takes attendance and does small tasks. (Tr 44)

Student was in a class with six students. He has been with the same class since grade eight. His class is based on his learning levels and similarity with other students. (Tr. 52)

Student receives support to help him access curriculum. He receives sentence starters, one on one teacher support, use of a calculator, work at a slower pace, a lot of review and repetition, modified curriculum, extended time, and frequent teacher check ins to make sure he is on task and maintaining his attention. (Tr. 52)

Student has a specific class that focuses on his executive functioning skills. (Tr 63) It helped improved Student’s organization and independence.

Student uses computer in all classes, He uses Google Read and Write which helps him with writing assignments. They utilize a programed called Gizmos which is an interactive learning simulation. Witness opined that it helps keep Student engaged. (Tr. 53)

Student receives counselling, occupational therapy and speech/language therapy. The Speech language pathologist pushes in twice a week, counseling is in a group every Monday and Student also receives individual counseling once a week. The occupational therapist pushes into the math class. (Tr. 55)

There are weekly team meetings with the related service providers. They discuss progress, goals and objectives. They issue report cards twice a year.

Witness opined that Student made progress across the board. He increased his level of self-awareness in counseling. He made improvements in English with the help of his speech and language provider. He made improvements in math. He made improvements with his executive functioning, increasing his independence, and with his organizational skills. He improved socially and emotionally. (Tr 59)

I find that the evidence is undisputed that REDACTED provides a small setting with individualized support that enables Student to make progress in academics, social, and emotional areas.

With respect to prong three, Parents attended the IEP meeting. They informed DOE of their concerns. I find nothing in the record that would prevent Parents from obtaining full 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 testified as to their inability to pay. (Tr. 78) Parents submitted their tax return. (Exhibit M) I find Parents are entitled to direct funding.

I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED School is appropriate and the equities favor Parents. I find that Parents are entitled to reimbursement and direct funding for any remaining balance of the tuition for Student’s attendance at the REDACTED during the 2022-2023 school year.

ORDER

The DOE shall reimburse and directly fund any remaining balance of the tuition for Student’s attendance at the REDACTED during the 2022-2023 school year upon evidence of contract, payment and attendance. Sharyn Finkelstein April 16, 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

A. Impartial Hearing Request 8/223/2022 (8 pages)

B. IEP 2/18/2022 (6 pages)

C. Report card 21/22 SY (6 pages)

D FOFD 6/29/2022 28

E Prior Written notice

School location letter 2/20/2022 3

F. Email exchange 8/10 to 2/20/22 (5 pages)

G. Enrollment contract 8/17/2022 (5 pages)

H Pendency Agreement 10/3/2022 2

I Program Description N/A 3

J. School schedule first semester 1st Semester 22-23 SY (1 page)

K. Affidavit and proof of payment 9/16/2022 (3 pages)

L. Attendance sheet 12/2022 (1 page)

M Tax returns 2021 2