New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 24, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 7, 2023

FOR THHE STUDENT

[REDACTED] Attorney [REDACTED] Parent [REDACTED] Co-Director [REDACTED]

DEPARTMENT OF EDUCATION

No Appearance

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 June 9, 2023.

BACKGROUND

Student attended a public high school in [REDACTED] grade.

Student struggled and was diagnosed with attention deficit disorder. Student was treated with medication for depression.

Psychiatrist recommended that Parent request an IEP.

An IEP was developed but Parent never received a placement for Student’s [REDACTED]. grade.

Parent sent a letter that they had no placement and were transferring Student to [REDACTED] ([REDACTED]) in the [REDACTED] program.

Parents enrolled Student in the ten month program at [REDACTED] in the [REDACTED] program.. Parent later enrolled Student for the summer session during the month of June.

Student is very bright but has executive functioning deficits in organization, planning, time management, prioritizing and has some difficulties with attention. Student has some work avoidance and some depression. (Tr. 49)

Parent filled a due process complaint for reimbursement for Student’s attendance at [REDACTED] for the 2022-2023 school year. (Exhibit A) Parent requests reimbursement for Student’s attendance at [REDACTED] summer session during the month of June.

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by [REDACTED] on the initial date of hearing. DOE waived an opening and did not put on a prong one case. (Tr. 28) There was no appearance on the final day of hearing. DOE did not submit any evidence

PARENTS’ CASE

The Parents were represented by their attorney [REDACTED]. It is their position that DOE failed to offer a FAPE to Student for the 2022-2023 school year. They maintain that Student’s placement at [REDACTED] is appropriate. They submitted evidence and had two witnesses in support of their position. It is their position that Parents are entitled to reimbursement for Student’s attendance at [REDACTED] during the 2022-2023 school year including the summer program during the month of June.

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 defend any 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, Witness is one of the co-directors of the [REDACTED] program. They are an inclusive school with students with or without learning disabilities.

Students attends [REDACTED] in a group -session every morning prior to school. They focus on executive functioning skills and getting students organized and ready for the day. They have an afternoon session for forty-five minute which she described as a structured study hall time. They use an online system to help student. Classroom teachers are also available during both the morning and afternoon group sessions. Students have individual sessions twice a week for forty-minute sessions. Students are pulled out of nonacademic classes. They tailor the sessions according to the Individual needs at the time.

There is a lot of consistent communication between the [REDACTED] teachers throughout the year and the classroom teachers. They have an on-line system [REDACTED] which Parents can access.

Student requires constant reminders to complete work in a timely manner. They work with their [REDACTED] teacher on prioritizing assignments. Student requires the assignments to be broken down. They require a lot of reminders and encouragement to get started. Student is easily distracted and requires a lot of refocusing and direction. They work on chunking. Student’s time into smaller manageable pieces which helps them complete his work. Student e is prompted to keep their materials organized during group sessions.

She opined that there has been a big improvement. Student is more receptive to independently planning a schedule. Their self-perception and confidence improved. Their ability to hand in assignments has definitely improved.

She opined that the structure of Student’s class is very beneficial. They have made a lot of progress in imitating tasks and asking for teacher support and their self-advocacy improved throughout the year.

In math Student improved with support with time management

Student benefits from constant classroom routines. They are provided with guided notes, repeated directions and step by step strategies. Their timeliness of all assignments has improved.

Parent opined that Student has made significant progress in their self-confidence. They are more secure in their ability to complete his work. She opined that Student improved in the social emotional area and academically.

I find evidence establishes that [REDACTED] with the [REDACTED] program provides Student with the individualized attention and supports that they require to make progress. I find evidence is undisputed that Student made progress in various areas. I find [REDACTED] is appropriate and Parent met their burden under prong two.

Parent testified that Student did not receive Algebra during [REDACTED] grade prior to attending [REDACTED] . Student is missing Algebra 1. She explained that it is a graduation requirement and necessary for him to be able to do Algebra 2 in [REDACTED] year. [REDACTED] informed her that Student will require additional hours of instruction in June in order to complete their [REDACTED] -grade curriculum.

June program consists of five days a week one on one for three hours a day. The cost is $100 an hour for a total of $2, 500.00.

Parent explained that they were unaware of Student’s need for additional Algebra at the time of the filing of the due process request. Parent points out that the June session is part of the 2022-2023 school year. I find that the summer session is an appropriate remedy for the denial of FAPE.

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

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

ORDER

DOE shall reimburse Parents for Student’s attendance at [REDACTED] during the 2022-2023 school year including the summer session in June, 2023, upon evidence of attendance, contract and payment.

Sharyn Finkelstein June 10, 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

No evidence

PARENT

A. Hearing Request November 4, 2022 (12 pages)

B. Parents Letter to CSE -TDN August 15. 2022 (2 pages)

C. School contract August 22, 2022 (4 pages)

D. School Payment Affidavit with POPs October 6, 2022 (5 pages)

E. Student attendance record October 5, 2022 (1 page)

F. Student School schedule September 13, 2022 (1 page)

G. School Program Description 22-23 SY (3 pages)

H. Student School Q2 Academic Report December 31, 2022 (1 page)

I. Letter from Psychologist June 23, 2022 (2 pages)

J. Letter from Psychiatrist June 23, 2022 (2 pages)

K. Letter from School Psychologist June 24, 2022 (1 page)

L. Student 2021-2022 NYC DOE Report Card 6/21/2022 (1 page)

M. NYC DOE Psychoeducational Evaluation 6/21/2022 (5 pages)

N School Letter about required additional

Course work 2/10/2023 1 O School Invoice and proof of payment for Additional course work 2/2023 4