New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 27, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 6, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 21, 2023

For the Department of Education:

REDACTED District Representative

FOR THE STUDDENT

REDACTED Attorney REDACTED Parent REDACTED Director of REDACTED

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 2021-2022 twelve-month 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 evidence that was submitted. The record was closed on April 25, 2023.

BACKGROUND

Student was diagnosed with toddler ADHD. Student is diagnosed with autism spectrum syndrome and with a 1q21 multi-duplication syndrome. Student presents with autism-like symptoms, a processing disorder, and a potential learning intellectual disability. He has fine motor issues and cannot dress himself. Student is unable to feed himself, put on his shoes, or brush his teeth. (Tr. 90)

Student was REDACTED old when he transitioned out of early intervention and moved to the CPSE.

Student had been kicked out of preschool. They were unable to teach him and advised Parent that he requires too much of their time. (Tr. 123. 134)).

Student attended REDACTED preschool, a DOE school. There were ten students in the class but because of Covid many students were learning via Zoom. Student had very individual one to one and he was able to learn. (Tr. 96) He had speech therapy at home.

On January 20, 2021, a Neuropsychological evaluation was written by REDACTED, based on a number of sessions. She recommended a very small language based 12-month program. Student was unable to talk at the time. (Exhibit C, Tr. 99)

In May 2021, a Turning -5 IEP meeting was held. (Exhibit 9) They recommended a 12-month 8:1:1 REDACTED program. Parent had concerns with the program.

In June 2021 Parents received a placement letter. (Exhibits 10, 11) Parent made attempts to see the school. Parent scheduled a Zoom meeting which was cancelled, then postponed and never re-scheduled. Parent did not think it was appropriate for Student. (Tr. 112)

Parents sent a ten-day notice to DOE with her concerns. Parent never received a response. (Exhibit B)

Parents enrolled Student at REDACTED for the 2021-2022 school year. (Exhibit E) Student began in September because he was considered a Turning five student. He attended a preschool program funded by the DOE for July and August. (Tr. 59)

Parents paid the entire tuition. (Tr. 120, Exhibits N and O)

Parents filed a due process complaint to obtain reimbursement for Student’s attendance at REDACTED during the 2021-2022 school year as well as transportation on a 12-month basis. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by REDACTED. It is their position that they offered a FAPE to Student for the 2021-2022 school year. They argue that Parents’ unilateral placement is too restrictive and not individualized for Student. They argue that the equities do not favor Parent. It is their position that Parents’ requests should be denied in their entirety. They submitted evidence but had no 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 2021-2022 school year. They maintain that Student’s program at REDACTED was appropriate and the equities favor the Parents. They submitted documents in support of their claim. The director of admissions and assistant head of school at REDACTED provided testimony and was cross-examined by DOE. (Tr. 47-86) Parent provided testimony and was cross-examined by DOE. It is their position that Parents are entitled to reimbursement for Student’s attendance at REDACTED for the 2021-2022 school year. It is their position that Student requires a 12-month school year as well as transportation to and from school.

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, Parents argue that the recommended program was too large and did not have ample individual support. DOE argues that their program was able to provide Student with the levels of support that they required. No one at the IEP team from the DOE ever met Student. Parent testified that Student’s prior DOE teacher opined that he could not function in a large setting. They opined he could not function in a classroom with ten kids. (Tr 96)

Witness from unilateral placement opined that Student could not function in a large setting. Student had already been asked to leave a program that was not able to provide him with the individual support and attention that he required.

Parent testified as to the meeting itself. They did not discuss other programs and appeared to have made up their mind. I find that the recommendation was pre -determined.

With respect to the school location, I agree with DOE that Parent’s reading an article about a particular REDACTED placement is not grounds to reject a placement. I find that there were other compelling reasons namely the class size. DOE did not put on any witnesses to address their recommended school. They did not have any witnesses to defend the recommended IEP. I find that the DOE failed to provide a FAPE to Student for the 2021-2022 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, REDACTED is a small 12 -month self-contained independent private school for students with speech-language communication delays and other types of learning challenges. Their speech and language impact their learning and social progress. They use a collaborative interdisciplinary evidence-based model. (Exhibit D)

The homeroom classroom classes are 6:2:1 with six students, two special education teachers, a head teacher, an assistant and a dedicated speech and language pathologist in the classroom. Witness described it as their most significant intervention. Students received the therapeutic communication and language assistance throughout the entire day. Homeroom is for all non-academic students. At one point there was an additional student and they added another teaching assistant.

For academic classes and group therapies, Student was in a group of approximately three too five students. (Exhibit F, Tr. 82-83)

They are ungraded, and Students are grouped in developmentally appropriate smaller groups of three to five kids for each individual subject.

Head teachers have their master’s in special education or are currently in the program. Related service providers are certified and licensed in their respective fields. Staff is available to communicate with Parents.

Part of admission process for Student involved reviewing progress reports and the neuropsychological evaluation. Witness explained that Student’s speech-language communication impairments were significantly impacting his preacademic skills, social interactions, attention, and ability to self-regulate. They thought that with intensive collaboration between speech and special education Student would thrive.

Witness explained Student’s needs for a 12 -month school year. He requires constant and repetitive support to make meaningful progress. He opined that without a 12- month program Student would have significant regression.

Student had significant foundational gaps in receptive expressive and socially pragmatic language. He needed to improve his group learning skills. Student had expressive and receptive delays as well as delays in speech sound production. He needed help with articulation. Student was not a reader. His play skills were impacted. They provided him with Orton Gillingham reading therapy method paired with Preventing Academic Failure in order to help him become a reader. (Tr. 65)

They helped Student with handwriting and used Handwriting Without Tears. They used a scaffolding approach, multisensory, visual and auditory and kinesthetic modalities. Student benefitted from preferential seating and a visual schedule.

Student had constant speech and language support all day. They helped him process the information to help him relate to peers. They helped him with self-regulation.

Evidence was submitted of progress reports. (Exhibits I-L) Student improved in his ability to attend group instruction, his reading skills and self-regulation. He became more available for learning. (Tr. 71)

Parent explained that Student was unable to express his needs or wants. At the end of the year, Parent testified that he had started to communicate back and forth with one-word sentences that made sense. He started to count a little and started recognizing a lot of the alphabet and began to sound out words.

I find evidence establishes that REDACTED provided the setting and supports that were recommended by the neuropsychologist. I find that evidence establishes that Student made progress with his ability to communicate with his Parents. I find Student made progress in his expressive and pragmatic language. I find that the small class size, and constant presence of the speech therapist enabled Student to make progress in all areas including his academic , reading ability and interaction with others. I find REDACTED was appropriate for the 2021-2022 School year. I find Parents met their burden under prong two.

With respect to prong three, DOE implies that Parent signed a contract prior to the IEP meeting and had no intention of accepting a DOE school. Parent explained that she signed a contract to secure a seat for Student. Contract allows Parent to be relieved of obligations if DOE offers an appropriate program. (Exhibit E) Parent described efforts she made to see the placement. DOE never rescheduled a meeting that they had left. Parent shared her concerns in a ten-day notice and shared the independent evaluation. I find that that the Parent did nothing to prevent the DOE from recommending an appropriate program or placement. I find equities favor Parent.

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/CBST. 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 DOE provides a school bus to take Student to and from school.

I find Student is entitled to transportation to and from school.

In summary, I find that DOE failed to provide a FAPE to Student for the 2021-2022 school year. I find REDACTED was appropriate and the equities favor Parent. I find Student requires and is entitled to transportation to and from school. I find Student requires a 12-month school year.

I find Parent is entitled to reimbursement for tuition paid for Student’s attendance at REDACTED for the 2021-2022 school year, upon evidence of contract, payment and attendance.

ORDER

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

Sharyn Finkelstein April 25, 2023

PLEASE TAKE NOTICE

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 INTO THE RECORD

STUDENT

A. Request for impartial hearing 12/23/2022 (7 pages)

B. Notice of unilateral placement 8/25/2021 (3 pages)

C. Neuropsychological Evaluation 1/20/21 (13 pages)

D REDACTED program description 2021-2022 2

E. Enrollment contract 3/15/2021 (5 pages)

F. Schedule 2021/2022 (2 pages)

G. Speech and language evaluation 12/19/2021 (16 pages)

H. Occupational therapy evaluation 11/15/2021 (17 pages)

I. Mid-year academic report 12/17/2021 (6 pages)

J. End-of-year speech and language evaluation 6/24/2022 (12 pages)

K. End -of-year occupational therapy evaluation 6/24/2022 (12 pages)

L. End-of- year academic report 6/10/2022 (6 pages)

M. attendance 6/24/2022 21-22 (1 page)

N. Tuition affidavit 9/22/2022 (1 page)

O. Proof of payment various dates (5 pages)

DEPARTMENT OF EDUCATION

1. Genetic test report 12/8/2020 (9 pages; DOE)

2. Neuropsychological evaluation 1/20/2021 (13 pages; DOE)

3. Occupational therapy progress report 1/20/2021 (2 pages; DOE)

4. Speech therapy progress report 1/20/2021 (4 pages; DOE)

5. Educational progress report 1/21/2021 (4 pages; DOE)

6 Preschool teacher questionnaire 3/22/2021 4

7. Classroom observation 4/6/2021 (2 pages; DOE)

8. Turning-5 social history update 4/6/2021 (2 pages; DOE)

9. IEP 5/7/2021 (2 pages; DOE)

10. Prior written notice of placement 5/30/2021 (4 pages; DOE)

11 Prior written notice school location

Document 6/15/2021 5