New York City Department of Education, Impartial Hearing Decision

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 (also known as REDACTED) REDACTED (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 to allow for receipt of transcript and time to render a decision. 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 August 10, 2023.

BACKGROUND

Student had a Neuropsychological evaluation in December 2020. Student is diagnosed with autism spectrum disorder, developmental communication disorder, generalized anxiety disorder and attention deficit hyperactivity disorder. (Exhibit C)

Student had attended REDACTED School with IEP support. Student did not do well. (Tr. 77)

Parents enrolled Student at the REDACTED School (REDACTED) for the 2022-2023 school year. (Exhibit E)

Parents paid the entire tuition. (Exhibit H)

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

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. They had indicated that they were resting on their documents. (Tr. 37). DOE did not submit any evidence or have any witnesses.

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 REDACTED is appropriate and the equities favor Parents. They submitted documents in support of their claim. Senior head teacher at REDACTED testified as well as Parent. 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. Parent testified that they attended the IEP meeting on April 14, 2022 for the 2022-2023 school year. They recommended an ICT classroom in the local District public school. Parent opined that the student teacher ratio was not sufficient for Student to learn. (Tr. 79) Parents in the due process complaint enumerate 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 is a private nonprofit school for twice-exceptional students. Students are very bright but have some sort of disability that prevents them from learning in a traditional academic setting. (Tr. 52, Exhibit D)

Witness is one of the head teachers at REDACTED. She taught Student English and reading and was their homeroom teacher. Student has areas of weakness with decoding. Witness described emotional regulation as a big area of weakness for Student. They are very much of an audio and visual learner. Reading can be a struggle. (Tr. 53-54)

She explained the importance of Student’s ability to form close bonds with adults and feel safe She opined that they required a very small student to teacher ratio in order to form the bonds. (tr. 54-55)

Student benefited from having the ability to take a break. They benefitted from clear instructions, frequent teacher check-ins, and from audio books or text being read aloud to address their reading.

Student was in a class with REDACTED grade students. In addition to Witness, there was also a math teacher, associate teacher, psychosocial teacher, frequent related service providers and an individual paraprofessional. A counseling intern was sometimes in class for Student.

Other students in the class had similar learning profiles to Student. They had similar academic levels. Student’s executive functioning was a little bit higher than some of the peers but emotional regulation was more of a challenge for them than other students. Witness explained that there were enough similarities in the academic levels and there were some peers at a similar social placement. (Tr. 59)

Student received counseling twice a week outside of the classroom. (Exhibit F) They received Core, a social group outside of the class as well as occupational therapy and typing. Student had speech language pathologist who cotaught ELA for half an hour on Mondays. (Tr. 67)

Team including related service providers met every Friday to speak about students on an on needed basis. Individual students were discussed once a month or more. (Tr. 67)

Progress is measured with different assessments. Parents submitted evidence of progress. (Exhibits I and J).

Witness opined that Student made a lot of progress with emotional regulation. (Tr. 71) She opined that Student made progress with reading, spelling and writing.

There is communication with Parents with monthly phone calls and parent teacher conferences. They share information through a platform. (Tr. 71)

Parent opined that Student was able to build a bond with the adults in the class. They were able to self -advocate. They did better in reading and writing. They developed language to be able to understand what they needed. Student no longer required hours to get back to the classroom when they became dysregulated. (Tr 80)

I find that evidence establishes REDACTED provided Student with small class size, and individual support that they needed to make both academic and emotional progress.

I find REDACTED was appropriate and Parents met their burden under prong two.

With respect to prong three, Parent attended the IEP meeting. Parent considered the recommended placement. Parent sent a ten-day notice. (Exhibit B) I find equities favor Parent.

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

ORDER

The DOE shall reimburse Parents for tuition paid to REDACTED for the 2022-2023 school year upon evidence of payment and attendance.

Sharyn Finkelstein August 12, 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. Request for impartial hearing 11/21/22 (5 pages)

B. Ten-day notice letter 8/22/22 (3 pages)

C. Neuropsychological evaluation 12/2020 (30 pages)

D The REDACTED program description 2022/2023 24

E. Enrollment contract 27/2022 (10 pages)

F. Class schedule 2022/2023 (1 page)

G. Attendance record 6/23/23 (1 page)

H Tuition statement 6/20/23 1

I. Progress report 11/7/22 (3 pages)

J. Progress report 4/20/23 (9 pages)

DEPARTMENT OF EDUCATION

None