New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 23, 2022

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 6, 2023

For the Student:

[REDACTED] Attorney

FOR THE DEPARTMEENT OF EDUCATION

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Head of [REDACTED]

[REDACTED]

[REDACTED] [REDACTED] Specialist

[REDACTED]

FOR THE DEPARTMENT OF EDUCATION

[REDACTED] Esq. District Representative 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 2022-2023 school year.

The parties moved to extend the compliance date on several occasions initially for settlement and later for witness availability. 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 May 27, 2023.

BACKGROUND

Student is [REDACTED] old and is currently enrolled at [REDACTED] in the [REDACTED] grade.

Student had attended [REDACTED] for the 2019-2020, 2020-2021 and 2022 school years.

On September 7, 2022 an IEP was created for Student’s 2022-2023 school year. (DOE Exhibit 1) Student was classified as [REDACTED]. Student was recommended for an [REDACTED] with Special Education Teacher Support Services (SETSS) and related services of occupational therapy, speech therapy and counseling.

Parents disagreed with the recommendation and sent a ten-day notice advising the DOE of their intent to unilaterally enroll Student at [REDACTED]. (Exhibit B)

Parents continued to enroll Student at [REDACTED] for the 2022-2023 school year. Parents paid the full tuition. (Tr. 138, Exhibit G)

Parent filed a due process complaint to obtain tuition reimbursement for Student’s attendance at the [REDACTED] during the 2022-2023 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by [REDACTED]. They submitted one document into evidence. They did not present any witnesses. They waived their prong one. They did cross-examine Parent’s witnesses. (Tr. 67) They submitted a closing brief.^[1]

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 Student’s current program at [REDACTED] School is appropriate. They maintain that the equities support Parents. They submitted documents in support of their claim. It is their position that Parents are entitled to reimbursement for Student’s attendance at [REDACTED] for the 20222023 school year. They had three witnesses in support of their position. They submitted a closing brief.

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 On reflection I found that the potential prejudice to DOE in not accepting the brief far outweighed any harm to Parents by allowing the very minimal late submission,. 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. 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 head of [REDACTED] at [REDACTED] provided testimony. (Tr. 70-80) They are a one-to-one support program for students with a range of learning disabilities. Students are pulled out for personalized learning with a specialist for forty-five minutes a session. They work on curriculum support or foundational skills. It is personalized based on student’s needs based on evaluations and IEP. There are approximately thirty-five student in the [REDACTED] Program which is grades one through eight.

There is a lot of communication between the [REDACTED] teachers and the content area teachers. There is constant communication so the lessons can be personalized.

Students are grouped according to their academic strengths and weaknesses as well as personalities and the particular strengths of the teachers.

They run on a six-day cycle. Students come every other day to the program with the Quest teachers. They come three times out of the six-day cycle.

Witness opined that Student’s needs are met at [REDACTED]. He has attentional needs and executive functioning needs. He takes a longer time to process and to complete his work. He needs help with seeing through his assignments and planning out his work. He is able to do it with the help of his [REDACTED] teachers.

Student receives prompting and scaffolding for his written assignments. There is a lot of planning for time management and his executive functioning skills.

Student receives one on one support as needed with writing and time management. He receives extra time in a separate location. He receives gross motor breaks.

There are fifteen students in Student’s class with two teachers. The teachers co-teach. Witness opined that it provides Student with the one-to-one he needs. He can be independent and still receive supports.

She described Student’s [REDACTED] teacher as a great executive functioning coach. Witness opined that Student is appropriately placed at the [REDACTED] Program at [REDACTED].

On cross-examination (Tr. 84-85) Witness agreed that the integrated co-teaching services are part of Student’s classroom experience, Student receives his SETSS exclusively on a one- to one basis. They do not offer occupational therapy, speech language therapy, or counseling.

On re-direct Witness explained that they speak with parents about getting related services outside of the school.

Witness opined that Student’s biggest challenge is attention and his executive functioning skills. He receives one to one for a 45- minute period every other day. During the rest of the time, he is in a mainstream class. Classroom teachers are aware of his deficits and able to help him on a one too one basis during the school day.

Student is very friendly and playful. (Tr 89) Witness opined that Student’s social and emotional needs are being properly addressed at [REDACTED]. She described him as very friendly and playful. (Tr. 89)

Second Witness is a learning specialist in the [REDACTED] Program. (Tr. 96-119) She has eight students on her roster. She has been Student’s [REDACTED] teacher for the past four years. She meets with students every other day for forty-five minutes. She designs and implements individualized programs to support the learning profiles of any student. She scaffolds strategies and skills and provides remediation and judicious practice of needed skills. She develops strategies for study skills. She helps with organization and executive functioning, time management and written expression. She provides graphic organizers, prompts and helps with strengthening reading comprehension, mathematical thinking and social and emotional support.

Student is in the [REDACTED] grade. He has a medical history. He is absent from school at times because of his allergies and asthma. He sometimes has difficulty breathing and needs to see the nurse. (Tr 100) He is a slow processor of his work. He has executive functioning issues and is easily distracted. He requires help to stay one task. He has difficulty with sentence syntax and writing complex and compound sentences. In math he is above grade level but needs help with word problems.

Student needs help to focus on a task. They provide him with visual or handwritten checklists. They develop task cards with the different steps needed for an assignment to address time management issues.

They address student’s slow processing by setting up a time limit for a task. They put tasks in a sequence.

They have targeted discussions about vocabulary to address Student’s challenges with comprehension. They preview background information. They use scaffolding to help him with inferences.

She opined that Student responds well to feedback both in [REDACTED] and with his teachers.

Student is provided with graphic organizers to support his writing which help him organize his thoughts and the order of his writing. He sometimes has a checklist on his desk.

They developed an individualized program based on Student’s profile as a learner. It is based on his writing, reading and executive functioning needs. They provide him with activities and strategies.

Goals are developed from referring to Student’s learning profile. They look at where his needs are most critical. They usually develop about three goals a year.

Student has some challenges with expressive and receptive language. She opined that his challenges are addressed through supports.

Student is well liked and gets along with everyone. (Tr. 113)

Witness opined that the class size is appropriate. Student is one of fifteen or sixteen in the classroom She opined structured class size is very beneficial to Student. (Tr. 115) They provide him with preferential seating .

Witness opined that Student has made progress in his ability to write longer texts and with his writing. He is able to get through larger material. He has made progress with his executive functioning skills.

Parent opined that [REDACTED] provides Student with the appropriate education and support for him to progress in a less restrictive environment. (Tr. 128) His grades are improving but she opined that he still requires supports. He is able to receive immediate help with the Quest program and catch up with class so as not to regress. (Tr 129

She opined that Student has made progress in his math, reading and writing. (Tr 130) He has made progress in terms of time management. (Tr. 131)

DOE points out that the teachers are not certified. I find this in and of itself is not a requirement for a private school and does not render the school inappropriate.

Contrary to DOE’s position I find evidence establishes that [REDACTED] provides Student with the small class size, individual attention and supports that has enabled Student to make progress. Evidence establishes that they are aware of student’s individual needs and provide supports to address these needs. They address his executive functioning needs, time management, organization, challenges in writing, speech and language, reading comprehension, and social and emotional needs.

Progress is not a necessary requirement to establish the appropriateness of a unilateral placement. I find evidence establishes that Student did in fact make progress.

DOE points out in their closing that [REDACTED] does not have the recommended related services of Speech and Language Therapy, occupational Therapy or counseling.

On cross-examination Parent testified that prior to Student attending [REDACTED], she spoke with the occupational therapist at Student’s prior school. They recommended that Student do a lot of exercise to improve his occupational therapy skills. Parents take him to sports including, swimming, tennis, biking, and skiing. The exercise helps to improve balance. They purchased certain toys to improve Student’s occupational therapy skills including his hand strength. Parent opined that Student’s muscles are stronger.

With respect to counseling, witnesses described Student as well liked and friendly. Parent testified that Student never took advantage of counselling. School addresses his selfadvocating and supports his confidence as a learner. Student is doing fine socially and emotionally. (Tr. 132) I find no evidence that Student has any need for counseling.

With respect to speech and language therapy, as Parent points out the goals in the IEP related to speech and language therapy are addressed at [REDACTED]. Parents provide Student with play dates to improve his speech.

In summary, I find that Parents’ choosing a school that did not provide related services as recommended on the IEP (IEP was rejected and no evidence that IEP was appropriate) does not render [REDACTED] inappropriate. Parents gave consideration to recommended services and chose to address them through [REDACTED] program and after-school activities, As Parents point out, in prior years 2019-2020, 2020-2021 and 2021-2022 a Hearing Officer found [REDACTED] to be appropriate. I find it was reasonable for Parents to conclude that [REDACTED] would continue to be appropriate. I find [REDACTED] was reasonably calculated for Student to receive educational benefit. I find [REDACTED] was appropriate for the 2022-2023 school year and Parents met their burden under prong two.

With respect to prong three, there is absolutely nothing in the record that would prevent Parents from obtaining full relief.

In summary, I find DOE failed to provide a FAPE to Student for the 2022-2023 school year, I find the [REDACTED] at [REDACTED] was appropriate and the equities favor Parents. I find Parents are entitled to reimbursement for Student’s attendance at [REDACTED] for the 2022-2023 school year.

ORDER

The DOE shall reimburse Parents for tuition paid to [REDACTED] for Student’s attendance during the 2022-2023 school year upon evidence of contract, attendance and payment.

Sharyn Finkelstein

June 4, 2023

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

DEPARTMENT OF EDUCATION

1. IEP 9/7/2022 (25 pages; DOE)

PARENT

A. Impartial hearing request 9/6/22 (7 pages)

B Findings of fact and decision 6/13/22 15

C. Ten-day notice 8/22/22 (3 pages)

D. Trimester l skill report 2021/22 (3 pages)

E. Trimester 2 report 3/11/22 (8 pages)

F. Trimester 3 skill report 2021/2022 (3 pages)

G. Enrollment contract 3/8/22 (4 pages)

H. Parent affidavit 10/7/22 (1 page)

I. Class schedule 2022/23 (1 page)

J. Trimester report 12/9/22 (11 pages)

K. Trimester 1 skill report 2022-2023 (3 pages)

L. Trimester 2 report 3/17/23 (11 pages)

M. Trimester 2 skill report 2022/2023 (3 pages)

IHO

I Parent Brief 5/25/2023 20

II DOE Brief 5/26/2023 9

Footnotes

[1] DOE submitted brief one day late Parent objected to its submission but did not allege any harm. Initially, I sustained objection.