New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 17, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Parent

REDACTED Curriculum and Instruction Coach, REDACTED

For the 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 (hereinafter referred to as “Student”) for the 2022-2023 school year.

The Parents moved to extend the compliance date on several occasions for witness availability and preparation for 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 April 18, 2023.

BACKGROUND

Student attends REDACTED grade at the REDACTED (REDACTED). Student is [REDACTED] years old and in REDACTED grade.

Student has auditory and language processing deficits. He has difficulty with written expression. (Tr. 41) He has been diagnosed with Auditory Processing Disorder, Unspecified attention Deficit Disorder and Generalized Anxiety Disorder. (Exhibit A)

A CSE meeting was held on June 15, 2922.

A school location letter offered a placement at REDACTED School. Parent found the school to be inappropriate. Parent sent a 10- day letter to CSE. (Exhibit C)

Parents enrolled Student at REDACTED. (Exhibit M)

Parents filed a due process complaint to obtain tuition reimbursement for Student’s attendance at [REDACTED] and the [REDACTED] Program for the 2022-2023 school year. They seek reimbursement for an independent evaluation that was conducted by REDACTED. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) did not appear on the day of the hearing. No evidence was submitted.

PARENTS’ CASE

The parents were represented by their attorney REDATED. 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. They submitted documents in support of their claim. They had witnesses testify. It is their position that Parents are entitled to reimbursement for Student’s attendance at REDACTED for the 2022-2023 school year as well as for the independent evaluation.

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 or submit any evidence 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 2022-2023 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, Witness is curriculum and instruction coach at York Preparatory. (Exhibit P, Tr. 32-40)

REDACTED program consists of a group meeting twice daily in the morning and afternoon. In the morning session they work on executive functioning, organization, preparation for the day and reviewing tests and homework. The REDACTED teacher can assist students as needed.

The afternoon session is used to begin homework and seek out individual interactions with subject matter teachers when necessary.

REDACTED students meet twice a week individually with their teacher for forty minutes. They focus on differentiated educational needs of a student. Student has been diagnosed with an auditory processing disorder which impacts his learning and functioning. Teacher provides re-teaching of key concepts and repetition of new material to help solidify Student’s understanding of the content in class.

Student requires academic support in writing, note taking, executive functioning and reading comprehension. They provide him with small class size, prompting, consistent routines, scaffolding and opportunities for 1:1 instruction with his teachers.

Student made progress with his organizational skills. He made improvements in writing and was able to complete most of his homework. Student made academic progress and is able to self-advocate more effectively . He is more independent.

Student has both an individual REDACTED and group REDACTED at the end of the day. They help him with his homework assignments. His teacher reported that Student has made progress with his executive functioning skills as well as with academics. He is better organized and better at able to break down his assignments. He is better with managing his frustration and is able to process longer assignments. Progress reports are consistent with the academic reports.

Student is in math with a 10:1 student to teacher ratio and in English with a 15:1 ratio. Student is keeping pace with the curriculum.

Student is provided with accommodations specific for him to be able to manage his academic weaknesses in the classroom. He receives extended time on assignments, one to one instruction in writing, scaffolding, chunking information, redirection, and the breaking down of multi -step directions.

Witness opined that Student is appropriately placed at the REDACTED school.

Parent described the decline in both Student’s social-emotional areas as well as academics during the three years prior to his attending REDACTED. Parent explained that REDACTED could accommodate Student’s intellectual needs while providing him with small grouping and task reinforcement. They address his deficits. (Tr 42)

Parent described how Student made progress as a learner and in developing friendship. Parent opined that Student made progress in every single area, academics and social. He is happier and has grown in his self-esteem.

Parent testified as to very positive changes in terms of Student’s approach to academics. (Tr. 46)

Parents submitted evidence of progress reports. (Exhibits J and K)

I find evidence establishes that REDACTED provides student with small class size, individualized attention and supports that he requires to make progress in social and academic areas. I find that REDACTED is appropriate and Parents met their burden under prong two.

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

I find DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate and the equities favor Parents. I find Parents are entitled to reimbursement for Student’s attendance at REDACTED for the 2022-2023 school year.

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).

DOE never did an evaluation on Student within the last three years. Parents received recommendations about a neuropsychologist from professionals and educational consultants.

I find Parent is entitled to reimbursement for the independent evaluation.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED for Student’s attendance during the 2022-2023 school year upon evidence of payment and attendance.

The DOE shall reimburse Parents for the independent neuropsychological evaluation conducted by REDACTED in the amount of $6,750.00 upon evidence of payment. Sharyn Finkelstein IHO April 19, 2023

PLEASE TAKE NOTICE

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

PARENTS’

EXHIBIT DATE DESCRIPTION #OF

A. Impartial Hearing Request 11/21/2022 8 pages

B. Parent Letter to CSE 10-Ten Day Notice 08/15/2022 2 pages

C. Neuropsychological/Psychoeducational Evaluation REDACTED 2022-2023 REDACTED Program Description (3 pages)

D. June 2022 (32 pages)

E. REDACTED 2022-2023 School Calendar 2022-2023 1 page

F. Student Weekly Schedule 09/13/2022 1 page

G. Student Attendance 02/17/2023 1 page

H. Academic Report (Attendance Included) 12/31/2022 1 page

I. Teacher Report 11/02/2022 2 pages

J. Speech and Language Progress Report 03/16/2022 4 pages

K. Speech and Language Evaluation-REDACTED 05/15/022

20 pages

L. Auditory Processing Evaluation-REDDACTED 04/23/2022 10 pages

M. REDACTED Enrollment Contract 03/01/2022 4 pages

N. Affidavit of Payments Made-REDACTED, Assistant Business Manager 02/13/2023 1 page

O. Invoice for Neuropsychological/Psychoeducational Examination 07/31/2022 1 page

P. Affidavit from REDACTED 04/14/2023 9 pages