New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590721 - NYC: 241631

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing June 8, 2023

June 26, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close July 3, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 8, 2023

For the Student:

REDACTED Attorney

REDACTED Mother

REDACTED Father

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 26, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Director of 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 2022-2023 school year.

The parties moved to extend the compliance date on several occasions for witness availability and preparation for hearing. 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 July, 3, 2023.

BACKGROUND

Student is bright. She has an attentional disorder, a language disorder, a reading disorder and a learning disability disorder in writing. (Tr. 53)

Student began attending REDACTED in the fall of 2019 when she was REDACTED years old

Parent signed a contract for the 2022-2023 school year.

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

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. They conceded prong one.

PARENT’S 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 is appropriate and the equities favor Parents. They submitted documents in support of their position. Parent provided testimony (Tr. 77-82) and the director of the unilateral placement testified in support of their position. (Tr. 49-77) It is their position that Parents are entitled to reimbursement for Student’s attendance at 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. They conceded prong one. 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 has students with language-based learning difficulties. Classes are small. There are eleven students and two teachers in the class. Witness opined that class ratio is very appropriate for Student. She has a lot of access to her teachers.

Student has an attentional disorder and a language disorder. This impacts the way she takes in learning and with her expressions. She was diagnosed with a learning disability disorder in writing.

Student has good sight -reading skills, and writing skills She was placed in a group of students with similar profiles. They need to develop their writing skills. The social mix of children was also considered.

There were between six and eight students in Student’s reading program. She was with students with similar needs. The focus of the reading group was intensively working with reading comprehension with age -appropriate texts. Witness explained that Student is a very rule bound person and Orton Gillingham is a very rule bound approach. Student has developed good reading decoding skills based on the methodology.

Student has opportunity for one to one with the lead teacher in her reading group. Many of the techniques used in the reading group were targeted very specifically for Student. They work on breaking things down for her to develop her understanding.

Student has gained confidence. She has improved her reading fluency. Her reading rate improved as well as her expression and reading aloud. Student improved her vocabulary.

The writing program is Judith Hochman’s Basic Writing skills, They work with an organizer and on creative writing. Witness testified that Student responds to the writing curriculum utilized at school.

In math Student was in a group of five students with similar skills and two teachers. Student had good calculation skills but had difficulty breaking down words or story problems.

Student benefitted from having some scaffolded templates when she was learning particular skills. Her main modification in mathematics was similar to reading. She worked one to one with the lead teacher in the group. Student made progress in math.

A speech and language pathologist pushed into Student’s homeroom class three times a week for writing and social studies, They developed her ability to break down information that she was receiving. Witness opined that Student benefited enormously from push in support by a speech/ language pathologist

Witness opined that in social studies and writing Student benefited from support with ideation and organization.

Student was pulled out at least once a week for a session with a speech-language pathologist. They worked with her on writing an organization and formulation of her oral language.

Witness opined that Student made a lot of progress with her expressive language..

Student progress with her interpersonal relationships. They addressed her attentional challenges with the small class and routine.

Parent explained that Student has difficulty in her learning or in her extracurricular activities in large groups. Parent testified that Student’s self-confidence improved. Parent opined that Student definitely made progress. She improved in reading and was more engaged in math. She became more sophisticated in her language.

Parent testified as to the progress Student made in prior years. Evidence establishes that REDACTED provided Student with the small class size, individual attention and services that enabled her to make progress. Evidence is undisputed that student made progress academically as well as emotionally with her confidence.. I find REDACTED was reasonably calculated to confer an education benefit on Student. I find Parents met their burden under prong two.

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

ORDER

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

Sharyn Finkelstein July 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

STUDENT

A. Impartial hearing request 11/7/22 (5 pages)

B. Notice of unilateral of placement 8/22/22 (3 pages)

C. Letter from REDACTED MD 8/13/2020 (2 pages)

D. IEP 11/10/2021 (17 pages)

E. Payment affidavit 1/13/2023 (1 page)

F. Daily Schedule 2022/2023 (24 pages)

G. midyear report 2021/2022 2021-2022 (24 pages)

H. End-year speech-language report 2021/2022 (2 pages)

I. 2022/2023 midyear report 1/30/2023 (20 pages)

J 2022-2023 mid-year speech-language 2022/2023 2

DEPARTMENT OF EDUCATION

No evidence