New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 26, 2023

For the Student:

REDACTED Attorney

REDACTED Educational Director REDACTED

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9

For the Student:

REDACTED Attorney

REDACTED Program Coordinator REDACTED

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEEARED on June 16, 2023

FOR THE STUDNT

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 ( “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. I weighed the cumulative impact of the relevant factors and found that the need for 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 June 19, 2023.

BACKGROUND

Student is REDACTED years old in fourth grade. She functions below grade level for all academic areas. She has deficits in speech and language area.

An IEP was created for the 2022-2023 school year and recommended an ICT classroom setting.

Parents did not agree with the recommendation.

Parents received a school location letter. Parent visited the recommended school and did not agree with it.

Parents sent a 10 -day notice letter to DOE that they would continue to send Student to private school.

Parents filed a due process complaint to obtain reimbursement and direct funding for Student’s attendance at the REDACTED program in the REDACTED School.

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. They did not have any witnesses but submitted evidence into the record. It is their position that they offered a FAPE to Student for the 2022-2023 school year. They maintain that the unilateral placement is not appropriate and if any award is granted, it should be reduced by the religious component.

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. They submitted documents in support of their claim. They produced witnesses from the unilateral placement as well as the Parent. It is their position that the equities favor Parent. In summary, it is their position that the DOE should fund the tuition at REDACTED .

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 in the due process complaint enumerates DOE’s failure to provide an appropriate program or placement. DOE did not dispute any of the allegations. DOE argues that documents are sufficient to establish FAPE. The evidence fails to establish why and how the team arrived at their ICT recommendation. Evidence establishes that Student requires smaller class setting. 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 the educational director at REDACTED and provided testimony. They have five model programs located in a mainstream school which provide small, self-contained classes for children with learning challenges.

The program is a special education program.

Student is in a mainstream school with three small self-contained classes. Student’s grouping is 5:1:1. There is one licensed education teacher and an assistant teacher in her class.

Student is in a REDACTED grade class.

They provide speech and language therapy by a New York State licensed speech pathologist. Student receives services at least twice a week. Students utilize a sensory lab twice a week. She receives occupational therapy twice a week as well as counseling.

He has monitored her progress over the year. He opined that Student has made social, academic and emotional progress.

He opined the program is appropriate. There is a religious component which comprises twenty percent of the schedule.

REDACTED is a State certified education teacher employed at REDACTED.

They are an all-girls elementary school, grades pre-k through eight. She is the program coordinator. They are a special education program with self-contained classes for students with special education needs located within the mainstream REDACTED School.

Students are placed in their class based on academic, social, emotional, and developmental needs. They place students within their age range. Teachers are certified in their respective fields. Related services providers are certified or qualified in their fields.

She is familiar with Student. The ability to work for extended periods of time and to focus are weaknesses that prevent Student from making progress. She described Student as an extremely concrete thinker. Reading is a challenge for Student..

All students in Student’s class are either classified with either speech and language impairment or learning disabled. They have similar academic levels.

Student has management needs and poor executive functioning. They have to guide her to keep her organized and focused.

Student receives one to one reading instruction twenty minutes twice a week. They work on her decoding skills, reading fluency, and spelling.

Student made progress in decoding.

Her reading comprehension program is multisensory.

Student made progress in math, writing and reading.

Student receives occupation therapy, speech and counseling.

In occupational therapy they work on sensory avoidance tendencies and strengthening her core. They work on her visual motor integration. Her balance and coordination have improved.

In Speech and language, they work on developing her ability to think more deeply about any learning task. Student is learning to generalize in order to solve problems.

Counselling provides Student with a safe space where she can share. In group, they work on social skills.

There are mainstreaming opportunities in gym, during lunch and in the computer room. Parent opined that Student has made progress academically, socially and in her behavior.

I find evidence establishes that REDACTED provides Student with the small class size and services that she requires to make progress. I find that she has made progress in various areas. I find she has mainstreaming opportunities. I find she has made progress with academics as well as socially and emotionally. I find Parents met their burden under prong two.

With respect to the equities, Parents attended IEP meeting. Parents expressed their concerns in a letter to DOE. Parent visited the recommended placement. Parent sent a ten-day notice to DOE. I find nothing that would prevent Parents from obtaining full relief.

Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805- 806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)

Parent testified as to their inability to pay for the tuition. They make monthly payments. Parent submitted tax return. (Exhibit L) I find Parents are entitled to direct funding for any remaining balance.

RELIGIOUS COMPONENT

DOE is not responsible for the religious portion of Student’s schedule. Witness testified that this compromises twenty percent of the schedule. (Tr. 41) I find a twenty percent reduction is warranted. The total tuition is 68,900. (Exhibit H) I find DOE is responsible for $55,120.

In summary, I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED Program is appropriate and the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding of any balance for the tuition or Student’s attendance at REDACTED for the 2022-2023 school year. I find a reduction is warranted for any religious component.

ORDER

DOE shall reimburse Parents for tuition paid to REDACTED and directly fund any remaining balance for Student’s attendance during the 2022-2023 school year upon evidence of contract, payment and attendance. The total amount that DOE is responsible to fund is $55,120 which represents the reduction for religious portion of Student’s schedule.

Sharyn Finkelstein June 25, 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. Due process complaint 12/28/2022 (5 pages)

B. Ten-day notice letter 8/25/2022 (3 pages)

C. Ten-day notice letter 9/22/2022 (3 pages)

D. REDACTED individualized plan and goals 2022-2023 (1 page)

E. REDACTED class schedule 2022-2023 (1 page)

F. REDACTED progress report 3/18/2023 (2 pages)

G REDACTED speech and language progress

Report 2022-2023 1

H. REDACTED tuition contract 9/6/2022 (1 page)

I. REDACTED tuition affidavit 9/6/2022 (1 page)

J. REDACTED attendance record 3/31/23 (1 page)

K. Affidavit of REDACTED 6/8/3034 (6 pages)

L Parent tax return 6/12/2023 2

DEPARTMENT OF EDUCATION EVIDENCE

1. Notice of IEP meeting re-evaluation Annual review 3/2/20222 DOE

2. Prior written notice 3.22.2022 DOE

3. IEP 3/9/2022 DOE