New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591633 - NYC: 242395

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 8, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Teacher REDACTED School and Center

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 of hearing. 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 12, 2023.

BACKGROUND

Student is REDACTED years old. Student was diagnosed with dyslexia and ADHD.

Student struggled in REDACTED when he had attended a public school.

Student has had an IEP since first grade.

On January 2022 an IEP meeting was held for the 2022-2023 school year. They recommended an REDACTED program. (REDACTED ).

DOE sent a school location letter for REDACTED in REDACTED. Parent visited the school. They were advised that there was no REDACTED class.

Parent sent a ten-day notice to the DOE. (Exhibit A)

Parent signed an enrollment contract with REDACTED for the 2022-2023 school year. (Exhibit D)

Parent filed a due process complaint (Exhibit A) requesting direct funding to REDACTED for Student’s attendance during the 2022-2023 school year, door to door transportation to and from REDACTED. l and funding for independent evaluations. (Exhibit B)DEPARTMENT OF

EDUCATION’S CASE

The Department of Education (DOE) was represented by REDACTED. They submitted no evidence and had no witnesses. They did not defend prong one. (Tr. 29). They did crossexamine Parent’s witness..

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 REDACTE is appropriate. They submitted documents in support of their claim. They had two witnesses 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 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 2020-2021 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, REDACTED grade head teacher at REDACTED provided testimony. They are a K through 12 school for students with learning-based disabilities. Student is in her homeroom class. There are twelve students in the class. They are a coteaching model. There is an assistant teacher in the classroom and they work collaboratively with specialists and other teachers in the school. Assistant helps asses the students and supports the students by scaffolding assignments. They team up and are able to provide individual and small group settings

Student has ADHD and dyslexia. He has difficulty with literacy, decoding, reading comprehension and writing. He has difficulty sustaining attention to tasks and has impulsive behaviors. His behavior affects him academically and socially. Student struggles with executive functioning.

Student requires a lot of broken-down language in order to answer reading comprehension. He struggles with inferential questioning. He requires a lot of support from the teacher to verbally answer these types of questions. He requires a lot more one on one support by a teacher if he is writing.

They preview a book prior to reading it. Student requires a lot of multiple check ins when they are reading. He is grouped with peers with similar reading level groups.

At the beginning of the year Student was on a level equivalent around halfway through REDACTED grade. He is now approaching the beginning of REDACTED grade.

Student receives decoding five times a week in a group of nine students.

Student has a lot of needs in writing. He benefits from teacher modeling and one on one support. He benefits from broken down tasks/ He benefits from teacher one on one check ins and conferencing. He uses technology to help him when he is writing.

Student has improved in his ability to take feedback and use it in a constructive way. His spelling has improved.

Student uses voice to text. He uses his iPad to take notes in math. He uses text-to-read. They use a lot of assistive technology in the classroom.

In math he struggles with solving multiplication or multidigit multiplication and division problems. They provide him with a multiplication chart to help him problem solve.

Student struggles in the concrete stage. They provide him with visual leads or graphic organizer. Student struggles with word problems

Student requires a lot of check ins, small group instruction repeated practice, and repetition in order for him to understand math concepts. Student has shown progress over the school year. He is independently performing closer too grade level.

Student has speech therapy twice a week They focus on his ability to understand abstract concepts. They help him understand and break down multistep directions. The therapist helps him with problem solving. She pushed into the classroom.

Student receives occupational therapy. He struggles with graphomotor skills like handwriting and typing. He struggles with his core strength his ability to self-regulate and stability.

Student has social and emotional needs. He has made progress. They work on his frustration tolerance and his taking responsibility for his behavior. They provide him with strategies and he has made progress.

Student has counseling with the school psychologist once a week in a small group of six. They work on social skills.

She described it as “incredibly important” for Student to have a small class sie. He requires a lot of one-on-one individualized instruction especially when he is dysregulated.

Parent opined that Student has grown socially and emotionally. He improved in his writing. His grade levels in reading went up. Generally, she opined he has had a really good year.

I find REDACTED provides him with the small class size, individualized instruction and supports that he enabled him to make progress. 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.

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 as to their inability to pay the tuition. They understood that they are ultimately responsible for the contract. I find Parents are entitled to direct funding.

REQUEST FOR TRANSPORTATION

Under New York State Education law § 4402(4)(d), the Department is required to provide transportation up to a distance of fifty miles to and from a nonpublic school if the Committee on Special Education (“CSE”) or School Based Support Team (“SBST”) has identified the student as requiring special education services, and if the student attends the nonpublic school for the purpose of receiving services or programs similar to those recommended by the CSE/SBST. Furthermore, the IDEA requires school districts to provide related services, including transportation, “as may be required to assist a handicapped child to benefit from special education.” 34 C.F.R. § 300.24.

Parent testified that Student requires a school bus to go to and from school. I find Student is entitled to transportation to and from school.

I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding for the balance of the tuition to REDACTED for Student’s attendance during the 2022-2023 school year. I find that Student is entitled to the continuation of busing to and from the school.

REQUEST FOR EVALUATION

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).

In this case, DOE did not contest any of Parent’s requests. They did not file any due process complaint to show the appropriateness of any evaluation. I find Parents are entitled to independent evaluations.

Parent testified that DOE has not conducted any evaluations since 2019. Student had a neurological evaluation conducted by I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, The cost of the testing is $7,000.I find that the failure to evaluate Student is another factor that contributes to DOE’s failure to provide a FAPE. I find Parents are entitled to funding for said evaluation as a remedy for the denial of FAPE.

ORDER

The DOE shall reimburse Parent for tuition paid to I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding for the balance of the tuition to REDACTED for Student’s attendance during the 2022-2023 school year and directly fund any remaining balance for Student’s attendance during the 2022-2023 school year upon evidence of any payment, contract, and attendance.

DOE shall continue to provide Student with transportation to and from school.

DOE shall reimburse or directly fund neurological evaluation at the rate of $7,000 upon evidence of payment, and evaluation report.

DOE shall fund independent evaluations for speech and language therapy, occupational therapy and assistive technology at market rate, unless DOE has conducted said evaluations by July 15, 2023.

Sharyn Finkelstein June 13, 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. Ten-day unilateral placement Notice 8/22/2022 (3 pages)

B. Due process complaint 11/17/22 (8 pages)

C REDACTED program description for 2022-2023 SY 1

D. REDACTED enrollment contract and affidavit 2022-2023 SY (9 pages)

E. Student schedule 2022-2023 SY (1 page)

F. Student Mid -Year Report 22-23 SY (13 pages)

G. REDACTEDD OT evaluation 9/3/2019 (3 pages)

H. Neuropsychological evaluation 1/2019 and 2/2019 (21 pages)

I. Parent IEE request 2/15/2023 (2 pages)