Impartial Hearing Decision

COVER SHEET

Case Number 242340

Requested 11/16/2022

Hearing Officer Sharyn Finkelstein

Student’s Name [REDACTED]

Date of Birth [REDACTED]

District [REDACTED]

Hearing Requested By Parent

Date of Hearing September 1, 2023

October 17, 2023

November 6, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close November 15, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 1, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 17, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Educational Director, The [REDACTED]

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 6, 2023

For the Student:

[REDACTED] Attorney

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 15, 2023.

BACKGROUND

Student is diagnosed with an autism disorder and an expressive-receptive language impairment. Student has delays in language and communication, executive functioning and has anxiety.

Student is classified by the CSE as a student with autism. (Exhibit 2)

On February 8, 2022, CSE held a meeting and created an IEP which recommended that Student attend a 6:1: within a District 75 school for the 2022/23 school year with related services. (Exhibit 2)

Student was recommended to attend [REDACTED] within [REDACTED]. (Exhibit 5)

Parent determined it was not appropriate.

Parent sent a 10-day notice to DOE and a follow-up letter stating her concerns. (Exhibits C and D)

Parent continued to enroll Student at [REDACTED] School for the 2022/2023. (Exhibit L)

Parent paid a deposit towards the tuition. (Exhibit M)

Parent provided their own transportation for Student to go to and from school. Parent paid for the cost of transportation. (Exhibits P and Q)

Parent filed a due process complaint on November 15, 2022. (Exhibit A)

Parent filed an amended due process complaint on February 9, 2023 to obtain reimbursement and direct funding for any remaining balance for Student’s attendance at [REDACTED] for the 2022-2023 school year as well as transportation to and from the school. (Exhibit B)

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education (DOE) was represented by their attorney [REDACTED]. It is their position that they provided Student with a FAPE for the 2022-2023 school year. They did not have any witnesses. They submitted evidence in support of their position.

PARENT’S POSITION

The student 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. They maintain that [REDACTED] is appropriate and the equities favor Parent. It is their position that Parent is entitled to reimbursement and direct funding for tuition at [REDACTED] during the 2022-2023 school year. It is their position that Parent is entitled to reimbursement for the cost of transportation of Student to and from school. They submitted evidence. The educational director at [REDACTED] and Parent testified in support of their position.

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. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. (Exhibit B) Parent and Witness opined that the recommendation was not appropriate. They opined there was not enough support provided to Student. (Tr. 107) 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] is a school for children with special needs. primarily with autism. There are six to eight students in a classroom with one lead teacher as well as one- to- one instructors for students who require additional support. (Tr. 67).

They use Applied Behavior Analysis (ABA) for academic instruction, social skills instruction and behavior intervention. They break tasks into small tasks with an emphasis on positive reinforcement. (Tr. 69) Every instructor is trained in ABA. They have a board-certified behavior analyst (BCBA) overseeing the ongoing training of the instructors in ABA. (Tr. 69)

Student struggles a lot with attention. He has a lot of rigidity in his thinking and struggles with understanding concepts. He has difficulty with attention. He has difficulty understanding social cues and social environments. He has difficulty remaining regulated. He exhibits a lot of self -stimulatory behaviors. (Tr. 74)

Student was in a class with eight students with very similar academic and social levels. (Tr. 75) They have one-to-one learning and small group learning. There are sensory motor groups and sports groups. They address Student’s social needs, academic needs and sensory needs. He had one-to-one support where necessary but had the opportunity to interact with peers. He had difficulty with social interaction and conversation skills. (Tr. 75)

Student had one teacher and one- to- one instructors as well as related service providers. The lead teacher ran the groups lessons and supervised the instructors. The instructors provided one-to-one support throughout the school day for behavior support, social skills support and facilitated communication. They reviewed all academic skills that student needed to learn. (Tr. 78)

At the beginning of the year. they conduct assessments. They conduct OrtonGillingham-based assessment for decoding and encoding. They use Fontes & Pinnell assessment system, Brigance and Vineland. (Tr. 78)

Student’s primary needs were his regulation and behavioral needs. He would go to tantrum behavior or aggression which hindered his ability to stay calm, focused and learn. (Tr.

79) It was difficult for him to pay attention to specific tasks. He required one to one instruction in a non-distracting environment for him to learn new information. Things had to be broken down in small steps. Socially, Student had little knowledge of how to interact with other students.

Academically, they worked on breaking steps into small steps. They used an OrtonGillingham-based approach. They worked on a sight word program. They used a guided reading program for reading comprehension. Student went from level H and ended the year with explicit comprehension instruction to a level J. (Tr. 80)

Handwriting was difficult for Student. They used Handwriting Without Tears program guided by occupational therapist. Student improved in his handwriting.

They used Mind Math curriculum breaking lessons into small steps. Student made a lot of progress within math. He learned skip counting, addition and subtraction and problem solving. (Tr 83)

All academic skills were taught in a one- to- one setting. It was then generalized in the group setting. (Tr. 83)

They probe data on a daily basis on the first trial of the day.

They addressed Student’s emotional regulation, self-regulation through the occupational therapists. (Tr. 85) A self-regulation curriculum was taught in Student’s class for a small group and then in a one-to-one setting. They provided actual self-regulation tools to remain grounded and regulated. Student worked using tools more independently to remain calm and problem solve. (Tr 86)

They used the Social Thinking curriculum. They collaborated with Student’s speech and language therapist to work on the curriculum.

Student had a behavior intervention plan in place. (Exhibit G) They collected data on a daily basis. They saw a significant decrease in tantrum behavior. (Tr. 88) Student was more flexible in his behavior and less rigid. Student’s self-stimulatory behaviors really decreased. He has sensory diet and sensory activities. He had more meaningful interactions and conversations. (Tr. 89)

They saw improvements in Student’s daily living skills. They worked on executive function skills.

There was collaboration and ongoing communication with all of the staff that worked with Student.

Student received speech therapy twice a week one to one and twice a week in a group, occupational therapy twice a week one to one as well as sensory motor group three times a day. Student received physical therapy twice a week in a group and one to one session as necessary. All of the providers are licensed in their respective fields. (Tr. 93) Related services are provided at diffidence times so that they do not miss any core subjects. (Tr. 95)

Witness opined that program was appropriate because it provided Student with the amount of supports that Student required. They taught him academics skills, self -regulation, social thinking in a one-to-one setting and then generalized it in a group setting. (Tr. 109)

Parent submitted an educational progress report (Exhibit R) and an addendum to an educational progress report. (Exhibit H)

Parent was in contact with teachers and related service providers to make sure student was making progress. (Tr. 136) She testified that Student’s communication skills improved dramatically. His daily living skill improved. He was more self-sufficient. Parent opined that Student’s educational levels improved. He matured. His tantrums decreased. (Tr. 136) Parent described Student as a different child who grew tremendously. (Tr. 137)

I find that evidence is undisputed that [REDACTED] provided Student with small class size, individual instruction based on ABA supports, behavior intervention and related services that enabled Student to progress in both academic and social areas. I find [REDACTED] was appropriate and Parent met their burden under prong two.

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

Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805- 806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)

Parent testified that the family income is approximately $40,000. She did not have sufficient means to pay the tuition. She is ultimately responsible for the contract. (Tr. 141) Parent submitted evidence of their tax return. (Exhibit O) Parent made a deposit. (Exhibit N) I find Parent is entitled to direct funding for any remaining balance. Transportation

At the start of the 2022-2023 school year the DOE arranged for transportation to and from school. (Tr 130) Parent testified that there were a lot of problems with the transportation. They did not start the transportations in the beginning of the school year. The bus broke down every other day. Parent explained that there was a shortage of buses. They did not provide transportation for the afterschool learning program. They were only able to provide transportation at 3:45PM. Student had no transportation coming home from school. Parent paid privately because Student had required the after-school learning program. (Tr. 132)

Parent hired someone who lived not far away so she could come whenever the bus did not show up. She hired her to take Student home. When Parent worked twice a week near his school, she took Student home. (Tr 132-133, Exhibit P) The rate for the private transportation was $65 and a toll for $10. Parent described the rate as cheaper than any other cost she researched. (Tr. 139) She did not trust UBER. (Tr. 140)

Parent submitted evidence of payments that she made. (Exhibit Q) I find Parent is entitled to reimbursement for cost of transporting Student to and from school.

In summary, I find that DOE failed to provide a FAPE to Student for the 2022-203 school year, [REDACTED] is appropriate and the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding for the remainder of the tuition for Student’s attendance at [REDACTED] during the 2022-2023 school year. I find Parent is entitled to reimbursement for the transportation cost that she paid for Student to and from school.

ORDER

The DOE shall reimburse Parent for tuition paid and directly fund any remaining balance to [REDACTED] for Student’s attendance during the 2022-2023 school year upon evidence of contract and payments made.

The DOE shall reimburse Parent for costs of transportation for Student to and from [REDACTED] during the 2022-2023 school year upon evidence of invoice and payment.

Sharyn Finkelstein November 16, 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

A. Impartial hearing request 11/15/22 (3 pages)

B. Impartial hearing request 2/9/23 (5 pages)

C. Ten-day letter 6/16/22 (3 pages)

D. Follow-up to ten-day letter 8/1/22 (4 pages)

E The [REDACTED] School program description undated

F. Class schedule undated 2022-2023 (2 pages)

G. Behavior intervention plan 2022-203 (6 pages)

H. educational progress report undated June 2023 (3 pages)

I OT annual assessment checklist 6/13/23 7

J. Speech therapy report 1/2023-5/2023 (4 pages)

K. Physical therapy progress report 1/28/23 (4 pages)

L. Enrollment contract 7/1/22 (5 pages)

M. Tuition affidavit 8/28/23 (1 page)

N. Proof of tuition payment 8/17/22 (2 pages)

O Individual tax return 2021 3

P Transportation invoices various 9/7/2022 10

Q Proof of payment for transportation

Various dates 9/8/2022 20

R. Educational progress report 1/20/23 (8 pages)

DEPARTMENT OF EDUCATION

1. Notice of IEP meeting 11/11/2022 (3 pages; DOE)

2. IEP 2/8/2022 (27 pages; DOE)

3. IEP attendance 2/8/22 (1 page; DOE)

4. IEP minutes 2/8/22 (2 pages; DOE)

5. Prior written notice and school Location letter 6/8/22 (8 pages; DOE)

6. Educational progress report 1/2022 (4 pages; DOE)

7. Speech therapy annual report 1/2022 (2 pages; DOE)

8. Occupational therapy progress report 2/3/2022 (3 pages; DOE)

9. Annual counseling report 21/2022 (2 pages; DOE)