New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 30, 2023

For the Student:

REDACTEDD Attorney

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 14, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 17, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Educational Director, REDACTED

For the Department of Education:

REDACTED 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 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 the evidence that was submitted. The record was closed on April 18, 2023.

BACKGROUND

Student is REDACTED years old.

An IESP was developed for Student on May 24, 2021. Student was mandated to receive SEIT services on a 3:1 basis in REDACTED, three times a week for sixty minutes, and occupational therapy on a 2:1 basis in English twice a week for thirty minutes. (Exhibit B)

CSE reconvened at the turning-five meeting on March 20, 2022. (Tr. 51) and declassified Student and determined that she was ineligible for services.

Parent sent a ten -day notice. (Exhibit C)

Parent signed a contract with Provider for SEIT/SETSS services as recommended in the IESP dated May 24, 2021. (Exhibit D)

Parent filed a due process complaint for Student to receive service that were provided in the May 24, 2021 IEP and for an independent psycho-educational evaluation. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of education was represented by REDACTED on the day Parent presented their case. They had failed to appear on the prior date which was designated for them to present their case. They presented no witnesses. They cross-examined Parent’s witness and point out that Witness had no personal knowledge of Student.

PARENT’S CASE

The Parent was represented by their attorney REDACTED. It is their position that the DOE wrongly declassified Student. It is their position that the DOE failed to provide a FAPE to Student for the 2022-2023 school year. It is their position that Student requires and is entitled to continue receiving services that were mandated on the CSPE IEP dated May 24, 2021. They are not seeking occupational therapy at this time. (Tr. 55) It is their position that Parent is entitled to an independent educational evaluation for Student. They maintain that the equities favor Parent.

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, Parent testified that Student struggles in the social emotional area as well as with academics. She opined that without assistance she could not be able to maintain her mainstream placement.

Student struggles with reading and math skills. She has difficulty focusing.

The explanation provided at the March 22 IEP meeting for declassifying Student was that she was making progress. Parent explained that both Student’s provider and teacher thought she required more support. Parent described Student’s needs to the team. (Tr. 50-51)

Parent did not hear from the DOE in response to her ten-day notice in which she expressed her disagreement with the decision to declassify Student. (Tr. 53)

DOE did not refute Parent’s testimony and did not present any witness to explain why they declassified Student. I find DOE wrongly declassified Student. I find DOE failed to provide a FAPE to Student for the 2022-2023 school year.

With respect to prong two, Parent was unable to find a provider for occupational therapy but did locate REDACTED to provide Student with three hours of SETSS a week. She signed a contract for which she is responsible. (Tr. 56)

Witness is the educational director of the agency that provides services to Student. They provide SETSS three times weekly.

Student struggles with reading and with sustaining attention. Witness opined from speaking with her provider that Student is making progress and required services to remain in a mainstream setting. Student receives a multisensory approach. (Tr. 40)

DOE argues that Witness had no interaction with Student. (Tr. 61) Witness knew and spoke with provider and was aware of Student’s program.

Parent submitted evidence of Provider credentials and of a current progress report. (Exhibit E and F)

I find evidence establishes that Student requires the continuation of the services. There is no evidence that Student no long required SETSS. I find the services that were originally mandated by the DOE continue to be appropriate.

With respect to the equities, Parent attended the IEP meetings, voiced her concerns at the meeting and by means of a ten-day notice. Parent testified as to efforts made to secure a provider. (Tr. 53)I find that there is nothing that would prevent Parent from obtaining the requested relief.

REQUEST FOR EVALUATION

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, Parent requested an IEE in their due process complaint filed on November 17, 2022. DOE did not respond. DOE did not file a due process complaint to defend any evaluation. I find that an education evaluation was warranted especially in light of the DOE’s decision to declassify Student. I find Parent is entitled to an independent psycho-educational evaluation.

In summary, I find DOE’s decision to declassify Student is a denial of FAPE. I find Parent is entitled to an independent psycho-educational evaluation. I find DOE should fund 3 hours per week of SETSS market rate for the 2022-2023 school year, upon evidence of services.

ORDER

DOE shall fund 3 hours a week of SETSS, 3 X 60 3:1 in Yiddish, at market rate for the 2022-2023 school year. ^[1] DOE shall fund an independent psycho-educational evaluation not to exceed $5,000.00 Sharyn Finkelstein April 19, 2023

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 INO RECORD

PARENT

A DPC 11/17/2022 6

B CPSE IEP 5/24/2021 17

C TDN 11/17/2022 3

D Parent contract 10/25/2022 1

E Provider credentials 3/13/2023 3

F Student’s progress report 3/14/2023 1

DEPARTMENT OF EDUCATION

1 Prior written notice package 3/20/2022 8

Footnotes

[1] Some of the services should have already been funded under pendency