New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 27, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 20, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Neuropsychologist

REDACTED REDACTED Program Director, REDACTED School

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 30, 2023

For the Student:

REDACTED Attorney

REDACTED Mother

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 2022-2023 school year.

The parties moved to extend the compliance date on several occasions 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 November 3, 2023.

BACKGROUND

Student was REDACTED old and attended grade nine for the 2022-2023 school year.

Student is diagnosed with dyslexia and an auditory processing disorder. He has problems with attention, executive functioning and working memory. His challenges center around reading and writing. He has difficulty processing information that he hears. (Tr. 73) He exhibits anxiety around school related demands. (Tr. 72, 137 Exhibit E) Student’s oral reading accuracy, his reading speed, his reading comprehension are all well below where it should be at his grade and age. (Tr. 74)

Student had attended REDACTED during the prior school year. They do not have a REDACTED grade. (Tr. 98) Parent did not receive an updated IEP or school placement. REDACTED had advised Parent that REDACTED would be a good progression. Clinical psychologist who had evaluated Student was familiar with REDACTED and opined that it was an appropriate placement for Student. (Tr. 75) REDACTED was also recommended to Parent by a personal contact. (Tr. 139)

Parent sent a 10- day notice on August 22, 2022 to DOE advising of their intent to place Student at REDACTED. (Exhibit C)

Parent enrolled Student at REDACTED within the REDACTED. (Exhibit H)

Parent paid the tuition. (Exhibit O)

Parent filed a due process complaint to obtain reimbursement for Student’s attendance at the REDACTED within the REDACTED for the 2022-2023 school year and private evaluations. (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. They did cross-examine Parent’s witnesses. It is their position that the unilateral placement is inappropriate. It is their position that any reimbursement that may be awarded should only relate to the Quest program. It is their position that Parent is not entitled to reimbursement for evaluations. In summary, they maintain that requested relief should be denied in its entirety.

PARENT’S CASE

The parent was represented by their attorney REDACTED. It is their position that the DOE failed to provide a FAPE to Student for the 2022-2023 school year. It is their position that the unilateral placement is appropriate and equities favor Parent. They maintain that Parent is entitled to reimbursement for private evaluations. They submitted evidence and presented three witnesses, Parent, Director of REDACTED and neuropsychologist.

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 submit any evidence or put on any witnesses 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. 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, the REDACTED program is designed to support students who are capable of functioning in a mainstream school with special education support. (Tr. 83, Exhibit F) They provide students with one-to-one sessions with a REDACTED teacher. They provide academic support, coaching and try to build academic skills. (Tr. 84)

They use basic writing skills program that was developed at the REDACTED. They revise the exercises to use their own class content. Each REDACTED teacher is responsible to help students on their caseload to navigate the expectations of their classes. They provide executive functioning coaching and help students with relations with teachers and long and short -term planning. Witness described the REDACTED teacher’s role as multifaceted. (Tr. 85).

Witness explained that REDACTED teachers work directly with classroom teachers to continue to play the role that a special education teacher might play in the ICT teacher relationship. (Tr. 86) They help teachers modify and differentiate assignments and activities in the classroom. (Tr. 86) They work with classroom teachers to ensure that accommodations are being provided effectively in the classroom. (Tr. 87))

REDACTED is programmed into the day. Students are not taken out of a content class. (Tr. 86)

They determine the services that a student will receive from a combination of feedback from the parents and reports from prior school. They conduct assessments of reading, writing and math.

Student receives three one on one sessions per six-day cycle with their REDACTED teacher. (Tr. 90) Parents get regular scheduled comprehensive communication and updates on progress. Every student has been assigned a REDACTED teacher. The classroom teacher has also been assigned to a REDACTED teacher, “special education liaison or partner.” Witness likened it to special education teacher in an ICT setting. REDACTED teacher has caseload up to ten students and a caseload of classroom teachers. They meet regularly to get information on students’ progress.

There are optional programs only offered to students in REDACTED. They have daily afterschool study halls that are run by REDACTED teachers. This provides opportunity for extra help from a REDACTED teacher. (Tr. 91) They have optional REDACTED Saturday study halls.

They conduct assessments in the fall and spring. They have internal assessment tools that are internally created. They collect samples throughout the year.

Parents are provided with regular updates. (Tr. 94)

Student needed a more supportive program. He was placed in a more supported setting. The course is differentiated (Tr. 96)

Student’s REDACTED. teacher meets with him regularly. Regular meetings with his Quest teacher are programmed into his schedule. She encouraged and made sure he came in for additional help when one on one session is not enough and he required more time. (Tr. 99)

Student receives support in addition to his regularly scheduled one on one session with REDACTED teacher. His content was modified as well the amount of content he was required to cover.

Student attended after school sessions as well as Saturday sessions. Student was provided with additional support and sessions on a one -to -one basis to work on his research paper. He received extra one on one sessions toward the end of the school year to prepare for his math final. (Tr. 101)

Student was involved in extra-curricular activities. (Tr. 103)

Student made progress in math and writing. Three progress reports are submitted each year. (Exhibits J through N)

Psychologist who had evaluated Student opined that REDACTED provided an appropriate program for Student during the 2022-2023 school year. They have small classes and Student received individualized teacher support as part of the REDACTED Program. He receives unlimited access to his teachers. His REDACTED teacher ensures that he understands the content in class and reviews his material. (Tr. 76)

Witness from REDACTED testified that Student made progress in math and in his ability to track and navigate the learning management system to keep track of his work and to initiate tasks. He made progress in utilizing writing strategies. (Tr. 104)

Parent opined that Student has built a lot of skills for academics. She described him as more confident and opined that he made academic progress and social emotional progress. (Tr. 140)

I find that evidence establishes that REDACTED within the REDACTED program provided Student with the supports and individualized attention he required to make progress in various areas. Evidence establishes that Student received individualized teacher support. He had unlimited access to teachers including after school and on Saturday.

I find the REDACTED program is not limited to the scheduled time with a REDACTED teacher. I find that evidence establishes that the REDACTED teachers and regular teachers collaborated and worked together to provide Student with what he required to succeed. I find the evidence is undisputed that the REDACTED program is intertwined with the general education program.

There is no separate contract for the REDACTED Program. I find Parent met their burden under prong two.

With respect to prong three, I find nothing that would prevent Parent from obtaining relief.

EVALUATIONS

A parent has the right to request an independent educational evaluation at public expense if the parent disagrees with the school district’s evaluation. 34 CFR 300.502(b)(1): 8 NYCRR 200.5(g).

If a parent requests an IEE at public expense, the school district must without any unnecessary delay, either (1) initiate a hearing under 34 CFR 300.507 to show that its evaluation is appropriate, or (2) ensure that an IEE is provided at public expense.

New York State regulations reflect the federal regulations: “If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the Parent does not meet the school district criteria.” 8 NYCRR 200.5(g)(1)(iv).

Neuropsychologist conducted an evaluation for Student in 2020, May 2021 and November 2022. The evaluation in 2022 (Exhibit E) was an educational update. The purpose of the evaluation was an ongoing concern about Student’s academic progress and to ensure he had proper interventions. (Tr 6) She tested his academic skills, memory and learning skills, auditory processing skills and receptive language skills. She never conducted a full neuropsychological evaluation. (Tr. 78)

As DOE points out, Parents were already reimbursed for a cost of a full neuropsychological evaluation in August 2020. (Tr. 150) I find no grounds to reimburse the costs of an educational update that took place in 2022.

Parent also requested an auditory processing evaluation. There was no testimony about such evaluation. As DOE points out the DOE funded this evaluation in August 2020, within two years of the time of the filing. (Tr. 151) I find no grounds to award another independent evaluation.

I find no grounds to reimburse Parents for independent evaluations.

In summary, I find REDACTED School with the REDACTED Program is appropriate and equities favor Parent. I find Parent is entitled to reimbursement for tuition for Student’s attendance during the 2022-2023 school year. Requests for reimbursement for evaluations are denied.

ORDER

DOE shall reimburse Parent for Student’s attendance at REDACTED with the REDACTED Program upon evidence of attendance and payment.

Sharyn Finkelstein November 4, 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

A Due process complaint 9/5/22 11 B Findings of fact and decision for case

Number 223214, issued by REDACTED 5/11/22 18 C Ten-day notice letter 8/22/22 4 D Auditory and language processing evaluation

By REDACTED 7/14/22 11 E Neuropsychological educational evaluation by

REDACTED 11/11/22 7

F 2022/2023 REDACTED

Description 5 G REDACTED letter and remote learning plan 8/30/22 4 H REDACTED enrollment contract 3/8/22 4 I 2022/2023 REDACTED School student classroom

Schedule 1 J 2022/2023 REDACTED School trimester one ATL Skill report 6 K REDACTED School trimester one report card 3/17/23 12 L REDACTED School trimester one report card 12/9/22 13 M 2022/2023 REDACTED School trimester three

ATL skill report 7 N REDACTED School trimester three report card 6/23/22 13 O REDACTED School tuition affidavit 1/22/23 1 P 2022/2023 REDACTED School proof of payment 13 Q Invoice for auditory and language processing

Evaluation 7/14/22 2 R Proof of payment for auditory and language

Processing evaluation 7/14/22 2

S Invoice for neuropsychological educational

Evaluation 11/18/22 1

T Proof of payment for neuropsychological

Education Evaluation 11/17/22 2

U Neuropsychological educational update by Dr. REDACTED 5/20/20 7

DEPARTMENT OF EDUCATION

No evidence