New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEAREED ON FEBRUARY 10, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 21, 2023

For the Student:

REDACTED Attorney

REDACTED Assistant Director of REDACTED

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 1, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

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. (“Student”) for the summer program (July and August 2022) during 2022-2023 school year.

The parties moved to extend the compliance date on several occasions for witness availability and to submit closing briefs. 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 June 29, 2023.

BACKGROUND

Student had attended REDACTED, a New York City Department of Education (DOE) public high school, during grade REDACTED.

Parents had intended that Student would attend REDACTED during the 2021-2022 school year.

In August 2021 Student had REDACTED.

Student attended REDACTED, then a REDACTED program, followed by REDACTED a transition program and REDACTED which was a therapeutic day school. Parents had filed a due process complaint for the 2021-2022 year to obtain funding for the various programs..

A decision was rendered and REDACTED, a highly supportive therapeutic educational program was found to be appropriate.^[1] Student made progress and Parents’ goal was to have Student return to REDACTED for her REDACTED grade.

Parent enrolled Student in REDACTED, where she attended for July and August of 2022-2023 school year.

Parents filed a due process complaint to obtain funding for Student’s attendance during the summer session at REDACTED.

DEPARTMENT OF EDUCATION’S POSITON

DOE was represented by their attorney REDACTED. It is their position that Parent withdrew consent on July 14 and advised DOE that the Student no longer needed an IEP. (Exhibit 2) They argue that the withdrawal of consent was confirmed via prior written notice on July 21, 2022. (Exhibit N) They argue that once Parent withdrew consent Student was no longer considered a special education student. They argue that Student was no longer entitled to FAPE. It is their position that Parent was fully informed and any request for tuition should be denied.

PARENTS’ POSITION

Parents were represented by their attorney REDACTED. It is their position that the Department of Education (DOE) failed to provide a FAPE to Student for the 2022-2023 school year for the time period of July and August 2022. It is their position that the email Parents sent withdrawing consent, was only meant for the fall and not the summer. It is their position that they were only withdrawing consent because they were told it was the procedure in order for Student to return to mainstream environment in the fall. They maintain that Student still required a supportive environment to ensure her readiness for a mainstream high school. It is their position that the summer program was supportive, and the equities favor Parents. In summary, they argue that Parents are entitled to reimbursement for Student’s attendance at REDACTED for July and August 2022, the 2022-2023 school year.

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 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 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 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. Parent filed a Ten -day notice with the DOE and advised DOE that Student would continue to attend REDACTED. (Exhibit B)

It is undisputed that DOE did not hold an IEP for the time period in question. It is undisputed that Parent sent an email with attachments in July 2022 advising that Student no longer needed an IEP and withdrawing consent. (Exhibit O) The issue centers around whether or not Parents were only referring to the Fall session or whether the withdrawal included the summer of 2022-2023, the time period for which they now seek tuition.

DOE did not put on any witnesses or attempt to defend any IEP for the 2022-2023 school year. It is their position that Student was not entitled to any services because consent had been withdrawn.

Parent testified that they wanted to ensure that Student could attend REDACTED in the fall. They were advised by the DOE to attend “REDACTED” to begin the process of reenrolling Student for the fall. Parent attended and was advised that in order to reenroll Student at REDACTED, they needed to advise DOE that Student would no longer need an IEP. (Tr. 104, 114-115) In July 2022, Parent sent an email with attachments. DOE argues that Parent was aware of their rights and the nature of the withdrawal of consent. They argue that once they withdrew consent for Student’s classification as a special education student, Parent was not entitled to reimbursement.

Parent points out in their closing that the attached letter from REDACTED clearly states that Student is currently enrolled for the summer session but not enrolled for the Fall semester.” (O-4) In the email Parent sent, they specifically asked how to re-enroll Student at REDACTED for the 2022-2023 school year.

Parent argues that they were communicating via the Ten -day notice and subsequent letters to DOE that they were seeking funding for the summer.

DOE argues in closing that Parents were more concerned with Student’s ability to continue at REDACTED in September than in protecting Student’s entitlement for the summer. I find no evidence that Parent was making a choice to forfeit services for the summer in order to protect Student’s rights in September. I credit Parent that they were only withdrawing consent for September in accordance with the instructions they had received. I find that evidence establishes that Parent was only interested in withdrawing consent for the upcoming fall and not summer.

I find that DOE failed to respond to Parent’s 10 day-notice. I find DOE failed to offer a summer program for the 2022-2023 school year. I find DOE did not provide Student with a FAPE for the summer portion of the 2022-2023 school year. I find DOE did not meet their burden under prong one.

With respect to prong two, the assistant director of education at REDACTED provided testimony. Student had made progress during the few months she had attended in 2021-2022 but he opined that she would benefit in continuing working on therapeutic skills prior to returning to a mainstream high school. Student required structure and needed to practice social skills. Student reached her goal by the end of the summer.

The summer program is six weeks long. It is a four day a week program. Students participate in academic classes and take electives. They receive the same therapeutic service that they had during the regular school year. Student received individual therapy and group therapy. Student did well in her academics. Student made social and emotional progress. Witness opined that REDACTED was appropriate. .

I find no evidence that would establish that REDACTED is no longer appropriate. DOE did not argue that REDACTED was not appropriate but based their position that DOE did not have to provide a FAPE to Student during the summer. I find REDACTED during the summer was reasonably calculated to enable Student to obtain an educational benefit. I find that REDACTED was an appropriate program for Student during the 2022-2023 summer July and August. I find Parents met their burden under prong two..

With respect to the equities, I find nothing in the record that would prevent Parent from obtaining relief.

In summary, I find DOE failed to provide FAPE to Student for the 2022-2023 school year, REDACTED was appropriate for the summer session and the equities favor Parents.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED for Student’s attendance during July and August 2022.

Sharyn Finkelstein July 10, 2023

PLEASE TAKE NOTICE

Within 40 days of receipt of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and with 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EVIDENCE ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

1 Withdrawn (Tr. 30)

2. Withdrawal email 7/14/22 (4 pages; DOE)

3 Case Closing 7/14/22 2

4. REDACTEEDD enrollment letter 7/12/22 (1 page; DOE)

5. Psychiatrist letter 7/10/22 (1 page; DOE)

6. REDACTED official transcript 12/1/21 (1 page; DOE)

7. Prior written notice package 11/30/21 (14 pages; DOE)

8. IEP 11/17/21 (20 pages; DOE)

9. Parent referral letter 11/9/21 (1 page; DOE)

10. REDACTED High School Student transcript 11/5/21 (1 page; DOE)

11 Psychiatrist 10/8/21 5

12. Residential treatment enrollment letter 9/27/21 (1 page; DOE)

PARENTS’ EVIDENCE

A. Request for impartial hearing 8/30/22 (10 pages)

B. Notice of unilateral placement 6/17/22 (4 pages)

C. Neuropsychological evaluation 10/13/21 (20 pages)

D. REDACTED discharge summary 7/26/22 (5 pages)

E. REDACTED educational summary 5/3/22 (3 pages)

F REDACTED therapeutic program description 4

G Tuition affidavit 4/21/22

1

H. REDACTED summer attendance 4/22-8/22 (3 pages)

I. REDACTED summer schedule 2022 (1 page)

J. REDACTED end-of- year report 2022 6/21/22 (4 pages)

K. REDACTED individual therapy summary 8/6/22 (1 page)

L July weekly reports 7/22-8/22 11

M August weekly reports 8/22 11

N. Email with attachment 7/22 (5 pages)

O. Email with attachments 7/22 (4 pages)

P. REDACTED summer enrollment contract 4/12/2012 (1 page)

Footnotes

[1] I was the hearing officer for the initial case needs, and provides for the use of appropriate special education services. (Application of a 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 the placement inappropriate under Prong II of Burlington. See, Application of a Child with a By the end of the 2021-2022 school year, DOE had not offered a placement for Student.