Impartial Hearing Decision

COVER SHEET

Case Number 243976

Date Requested 12/29/2022

Hearing Officer Sharyn Finkelstein

Student’s Name [REDACTED]

Date of Birth [REDACTED]

District [REDACTED]

Hearing Requested By Parent

Date of Hearing July 11, 2023

August 11, 2023

September 22, 2023

October 20, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close November 3, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 11, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 11, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 22, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Head of [REDACTED]

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 20, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

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 2021-2022 school year.

The parties moved to extend the compliance date on several occasions for possible settlement and 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 3, 2023.

BACKGROUND

Student is classified with a learning disability. (Tr. 96)

During the 2020-2021 school year Student received special education services as well as outside tutoring. (Tr. 97) Student was doing very badly. Parent expressed concerns to his school. (Tr. 99)

On May 17, 2021 an IEP meeting was held as a result of Parent’s request. She provided a neuropsychological evaluation. (Tr. 103) (Exhibit C) The evaluation recommended that Student receive individual one on one help with a very small classroom. Team recommended an Integrated Co-Teaching program (ICT) class with Special Education Teacher Support Services.

(SETSS) (Tr. 100)

On June 21, 2021 another IEP meeting was held to discuss assistive technology. The team continued to recommend an ICT program with SETSS and occupational therapy. They added assistive technology. (Tr. 106)

They recommended that Student continue at [REDACTED] with ICT, SETSS, occupational therapy and assistive technology. (Tr. 105)

Parent expressed disagreement in a ten-day notice but did not receive a response from DOE. (Exhibit B)

Parent enrolled Student at [REDACTED] ([REDACTED]). (Exhibit D)

Parent filed a due process complaint to obtain tuition reimbursement for Student’s attendance at [REDACTED] during the 2021-2022 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

A hearing was scheduled on July 11, 2023 for the Department of Education (DOE) to present their case but no one appeared. I rescheduled the hearing for August 11, 2023 to afford the DOE another opportunity to present their case. No one appeared and they waived their opportunity to present a case. No evidence was submitted and no witnesses were produced. (Tr. 43)

On September 22, 2023 [REDACTED] appeared as a newly appointed attorney for the DOE. He also appeared on October 20, 2023. It is their position that that DOE did offer a FAPE for the 2021-2022 school year. They argue that [REDACTED] was not appropriate. It is their position that tuition reimbursement should be denied in its entirety.

PARENT’S CASE

The parent was represented by their attorney [REDACTED]. It is their position that the DOE failed to offer a FAPE to Student for the 2021-2022 school year. They maintain that Student’s program at [REDACTED] was appropriate. They submitted documents in support of their claim. The head of [REDACTED] and Parent provided testimony in support of their position. They argue that Parentis entitled to reimbursement for Student’s attendance at [REDACTED] during the 2021-2022 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. DOE did not submit any evidence. Parent in the due process complaint enumerates DOE’s failure to provide an appropriate program or placement. DOE argues in closing that there is a reasonable basis to believe that they offered a reasonable placement. (Tr. 116) Parent does not have the burden to show that the IEP is invalid. DOE has to show that it is appropriate and without any evidence or testimony, I find they have not met its burden. DOE makes reference to their obligation to provide education in the least restrictive environment. While this is well known, it is not meant to be at the expense of providing Student with an appropriate IEP or placement. Parent submitted progress reports from Student’s prior school that show that he was not progressing. (Exhibit J and K) Prior to the IEP meeting, she had received reports from school that he was not attending and doing badly. (Tr 106) I find DOE’s continuation of the same program was not appropriate.

I find DOE did not provide a FAPE to Student for the 2021-2022 school year.

With respect to prong two, [REDACTED] is a small independent school for students diagnosed with learning disabilities. They have small class size. They focus on any skill deficits that a student has and develop their strengths They do a lot of assessments and create highly individualized program for each student. (Tr. 55)

Witness described the admission process for Student to attend [REDACTED]. Parent submitted an evaluation (Exhibit C) which provided cognitive scores, academic scores, diagnoses and the level of support he required for him to reach his potential. (Tr. 54) They interviewed the parents and it was determined that he would be a good fit for [REDACTED].

Students are grouped according to their learning profile. The focus program provides one-on-one support program. Each student has a focus teacher who they meet with for fortytwo (42) minutes on a daily basis to work on whatever they need help with. It is designed with the special needs of each particular student. Student’s focus teacher is a speech and language pathologist. (Tr. 58-59)

There were five other students in Student’s class. They had very similar learning needs. Curriculum was modified in terms of Student’s attentional struggles, his reading disorder and dysgraphia. Student was provided with a lot of attention and was provided with extra time on tests. He received graphic organizers, a lot of repetition and review.

Student was provided with a quiet place to work in dean’s office if he was distracted. They break down information into smaller chunks and modify it in any way to help him. (Tr. 60-61)

Student has cognitive struggles in the area of block design, visual spatial struggles, and fluid reasoning, His working memory was very low. He had a lot of struggles in terms of executive functioning.

They focused on decoding and encoding and social academic problem solving. They focused on his learning how to attend and stay focused and on planning and organization.

Teachers reported nice progress throughout the year and in all of the goal areas. (Tr. 63-64)

Parent submitted three reports. (Exhibits M. N and O)

School shares progress reports with parents three times a year. Focus teacher share a weekly update with parents. Content teachers send information to focus teacher to share with the parents. There are two teacher conference sessions. (Tr. 65)

There is an available counseling program. They develop and interact social-emotional learning in the classroom and one to one support with his focus teacher. If needed, the dean provides extra support. Witness opined that the small class size, individualized program, one on one support, constant check-ins with the dean team collaboration attributed to his progress. (Tr. 67-68).

Tuition is $73,000 Exhibit D) Parent made all the payments. (Tr. 69)

There is no requirement for teachers to have training in special education. They have a very intensive professional development program. Student’s focus teacher is a certified speech and language pathologist. (Tr. 70-71)

Parent opined that Student did a lot better at [REDACTED]. She received a report every week from his focus teacher. She received report cards and there were meetings with teachers. (Tr 110)

Parent opined that [REDACTED] was appropriate. Student was able to start learning. She explained that he was struggling with issues in terms of reading, writing and focusing that needed an individual approach. He was able to start working on reading and writing. They addressed his focusing and executive functioning difficulties.

I find evidence establishes that [REDACTED] provided Student with supports and individualized attention that enabled him to make progress. I find Parent met their burden under prong two.

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

In summary, I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year, [REDACTED] was appropriate and the equities favor Parent. I find that Parent is entitled to reimbursement for the tuition.

ORDER

The DOE shall reimburse Parent for tuition paid to [REDACTED] for the 2021-2022 school year upon evidence of payment and attendance.

Sharyn Finkelstein November 13, 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

A. Request for impartial hearing 12/19/2022 (9 pages)

B. Ten-day notice 8/25/2021 (3 pages)

C. Neuropsychological evaluation (11 pages)

D. Enrollment contract (5 pages)

E. Payment affidavit 3/7/2022 (1 page)

F. Classroom schedule 21/22 (1 page)

G Program description 2021/2022 1

H. Email to [REDACTED] 2/5/2021 (1 page)

I. [REDACTED] assistive technology evaluation June 2021 (5 pages)

J. [REDACTED] report card first semester 2020-2021 (1 page)

K. IEP progress report June 2021 (5 pages)

L. [REDACTED] fall academic report 2021/2022 (8 pages)

M. [REDACTED] fall progress report 2022 (9 pages)

N. [REDACTED] winter progress report 2021 (9 pages)

O. [REDACTED] spring progress report 2022 (9 pages)

P. Attendance record 2021/2022 (1 page)