NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 9, 2023
For the Student:
[REDACTED] Attorney
For the Department of Education:
No appearance
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 21, 2023
For the Student:
[REDACTED] Attorney
[REDACTED] Parent
For the Department of Education:
[REDACTED] Attorney
[REDACTED] School Social Worker, New York City
Department of Education [REDACTED]
NAMES AND TITLES OF PEERSONS WHO APPEARED ON APRIL 17, 2023
For the Student:
[REDACTED] Attorney
For the Department of Education:
[REDACTED] Attorney
[REDACTED] School Social Worker, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 1, 2023
For the Student:
[REDACTED] Attorney
For the Department of Education:
[REDACTED] Attorney
[REDACTED] School Social worker [REDACTED]
NAMES AND TITLES OF PERSONS WHOO APPEARED ON May 31, 2023
For the Student:
[REDACTED] Attorney
[REDACTED] Parent
[REDACTED] Assistant Head of School
[REDACTED]
FOR THE DEPARTMENT OF EDUCATION
[REDACTED] Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 12, 2023
For the Student:
[REDACTED] Attorney
[REDACTED] [REDACTED] Teacher
[REDACTED] School
For the Department of Education:
[REDACTED] Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 30, 2023
For the Student:
[REDACTED] Attorney
[REDACTED] Parent
For the Department of Education:
[REDACTED] Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 14, 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 2022-2023 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 August 15, 2023.
BACKGROUND
Student has a disability in reading, writing and math. He has Attention Deficit Hyper Activity Disorder (ADHD) as well as anxiety. Student has auditory processing deficits, selfregulation deficits, and specific learning disabilities among other deficits. Student has receptive language deficits. (Tr. 276, Exhibits G, H, I, J,)
Parent provided consent to reevaluate Student to social worker prior to IEP meeting. (Tr. 401, Exhibit T)
An IEP meeting was held on June 7, 2022. (Exhibit 10) Team recommended a 12:1:1 special class, in a [REDACTED] school for a twelve-month program. They recommended occupational therapy, counseling, speech and language therapy and an FM unit and Chromebook. (Exhibit 10)
A prior written notice and school location letter were issued on June 13, 2022.
Parent sent notice of intent to unilaterally place Student. (Exhibit A)
Parent signed a contract on August 8, 2022 for Student's attendance for the 2022-2023 school year at [REDACTED] ([REDACTED]). (Exhibit E)
Parent filed a due process complaint to obtain reimbursement/direct funding for Student's attendance at [REDACTED] during the 2022-2023 school year. (Exhibit T)
Student was in [REDACTED] grade during the 2022-2023 school year.
DEPARTMENT OF EDUCATION'S CASE
The Department of Education (DOE) was represented by their attorney [REDACTED]. It is their position that they provided Student with a FAPE for the 2022-2023 school year. They maintain that the unilateral placement is inappropriate and equites favor the DOE. (Tr. 52-53) They had one witness and submitted evidence. They argue that Parent is not entitled to an independent evaluations and DOE should have opportunity to provide evaluations. In summary, it is their position that relief should be denied in its entirety. They did not submit any closing.
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 2022-2023 school year. They maintain that Student's program at [REDACTED] is appropriate and the equities favor Parent. They submitted documents in support of their claim and had several witnesses. It is their position that Parent is entitled to reimbursement and direct funding for any remaining balance for Student's attendance at [REDACTED] for the 2022-2023 school year. They argue that Parent is entitled to independent evaluations. They submitted a closing brief in support of their position.
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, DOE Witness is a school social worker at [REDACTED]. She participated in Student's IEP meeting on June 7, 2022 as social worker and District representative (Tr. 84)
There were many instances throughout the hearing where witnesses had different recollections with respect to the meeting itself. What is not in dispute is that DOE did not have any current evaluations. Parent Witnesses point out that testing was not completed and they raised the issue at the beginning and end of the meeting. Parent advocated questioned if they could proceed without current evaluations. (Tr. 334) Parent had tried to conduct an updated neuropsychological and advised CSE of the difficulty because of COVID. (Exhibit X) The evaluation was in process. DOE chose to proceed with the meeting without any updated evaluations. They relied on an outdated neuropsychological from 2017. (Exhibit J)
DOE Witness acknowledged that testing was not completed but pointed out that they had copies of progress reports, WIAT testing and report cards. It is undisputed that there were no progress reports from [REDACTED] with respect to the related services. There was no speech and language therapist or occupational therapist at the meeting. There was no assistive technology evaluation.
DOE Witness questioned the results of portions of the WIAT, yet that was one of the documents that they relied on in making their recommendation.
I find that there were not current evaluations or sufficient information to properly identify Student's needs. DOE was aware that they did not have updated testing at the beginning of the meeting. They ended up relying on an outdated neurological evaluation, some progress reports and a WIAT, portions of which DOE witness questioned. They did not have any providers at the meeting who could address the areas where they had no progress reports. I find that DOE was determined to hold this meeting even knowing they did not have sufficient material. DOE could have postponed the meeting at any point but instead chose to proceed. I find the IEP was procedurally inadequate.
DOE Witness opined that based on the data they had available, they had sufficient information to recommend a [REDACTED] program.
As discussed above, there were insufficient evaluations.
Student had attended a setting where he received one on one individualized instruction. Team did not have a classroom observation. There was no discussion about transition needs going from [REDACTED] to [REDACTED].
Parent testified that there was no discussion about Student's learning, emotional, or academics needs. and how they would be met at [REDACTED]. (Tr. 428)
Parent testified as to Student's need for individualized reading support. She explained his need for one -on-one time because of his ADHD. She opined it would be detrimental for him not to have that one to one. (Tr. 431) There was no discussion about his currently receiving the one- to- one support in [REDACTED] group. (Tr. 432)
As Parent points out in their closing, there was no discussion with respect to Student's strengths. Student demonstrated oral word fluency at the 99th percentile. (Exhibit 3)
DOE did not have a witness who could explain how a [REDACTED] setting could meet Student's needs. There is no evidence that Student no longer required the one-on-one support he received at his then current setting. I find no evidence to support DOE's conclusion that a [REDACTED] setting would have met Student's needs.
I find that the IEP was substantively inadequate.
In summary, I find that the IEP was both procedurally and substantively inappropriate. I find DOE failed to provide a FAPE to Student for the 2022-2023 school year. I find DOE failed to meet their burden under prong one.
With respect to prong two, [REDACTED] is a school that educates students with learning disabilities, learning disorders, language disabilities, ADHD, dysgraphia and executive functioning deficits.
Parent Witness is a [REDACTED] teacher at [REDACTED]. She saw Student for 47increments every day and provided one to one instruction during the course period. They work on reading writing, language skills, literacy, and executive functioning including organizing his materials. He receives preparation for tests. They work on anything Student needs to do between her time and his classes.
She works with the Orton Gillingham approach and Wilson Reading System. (Tr. 271) They are researched-based methodologies to help students learn to read. She opined that these two programs are very helpful. Student does well with multisensory learning and repetitiveness. (Tr 278)
There are eight students in student's class. In math there are nine students.
They evaluate Student on a constant basis and develop a program for him based on all the information that they have. They can make changes to his program as needed. (Tr. 280) The curriculum is modified for Student's needs. (Tr. 302) [REDACTED] embeds strategies in occupational therapy, speech and counseling into Student's program. (Tr. 473-474)
At the beginning of the year Student was functioning substantially below grade level. Witness opined that Student is making nice progress in his ability to focus, in reading, writing and mathematics. Student is doing presentations in class. (Tr. 284), Parent testified that Student has benefited from [REDACTED]. She opined that the oneon-one support that he receives in the [REDACTED] class helps him with his reading, writing, math as well as socially. He has made friends and developed positive relationships. She opined that he has matured both social and intellectually. (Tr. 443)
DOE argued in their opening that [REDACTED] is not appropriate. DOE did not submit any closing or provide any specifics as to why they reached that conclusion. I find that evidence establishes that [REDACTED] provided Student with small class size consisting of other students with similar needs. They provided individualized attention on a daily basis in his [REDACTED] Class. Parent submitted evidence of progress reports. (Exhibits P, Q and R) I find evidence is undisputed that Student made progress in various areas including academics and social. I find [REDACTED] is appropriate. I find Parents met their burden under prong two.
With respect to prong three, DOE argues that equities favor DOE. Again, it is unclear as to how they reached such conclusion. Parent points out in her closing that Parent gave consent for revaluation, provided progress reports, and attended all meetings. On the occasions when Parent had requested postponement of any meeting, they provided sufficient reason. (Tr. 133-115) I find nothing in the record that would prevent Parent from obtaining the requested 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)
The yearly tuition is $75,000. (Exhibit E) Parent paid a $500 deposit and has been making payments of $250 a month. Parent testified as to the financial hardship in paying the tuition. (Tr 449) Parent submitted evidence of tax returns. (Exhibit AA) I find Parent is entitled to direct funding for any remaining balance of tuition. Request For 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 argues that Parent is not entitled to independent evaluations because they are not disagreeing with any specific evaluation. It is undisputed that DOE did not conduct evaluations. Parent signed consent for the evaluations and DOE is obligated to conduct evaluations that are over three years old. It is DOE's failure of conducting the evaluations that contributed to the denial of FAPE. DOE had ample notice, opportunity and obligation to provide the evaluations. DOE should not be provided with additional opportunity to provide what they should have done prior to the IEP meeting.
It is undisputed that Student did not have an auditory processing evaluation since 2015. (Exhibit L) Student did not have an occupational therapy evaluation since 2013. (Exhibit H) Student's neuropsychological evaluations were last conducted in 2017 and 2018. (Exhibits I and J) Student's most recent speech and language evaluation was conducted in 2018. (Exhibit G)
I find that Parent is entitled to requested independent evaluations for auditory processing, occupational therapy, neuropsychological and speech and language as an additional remedy for the denial of FAPE.
I find that DOE failed to provide a FAPE to Student for the 2022-203 school year, [REDACTED] is appropriate and the equities favor Parent. I find that Parent is entitled to reimbursement and direct funding for any balance of tuition for Student's attendance at [REDACTED] for the 2022-2023 school year. I find that Student is entitled to independent evaluations.
ORDER
The DOE shall reimburse Parent for tuition paid and directly fund any remaining balance to [REDACTED] for Student's attendance during the 2022-2023 school year, upon evidence of contract, attendance and payments.
DOE shall directly fund an occupational therapy, speech and language, Auditory Processing and neuropsychological evaluation at market rate upon receipt of evaluation and invoice. [1]
Sharyn Finkelstein August 22, 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
PARENT
A. 10 Day Notice 8/24/2022 (3 pages)
B. Impartial Hearing Complaint 12/22/2022 (8 pages)
C. Amended Impartial Hearing Complaint 12/30/2022 (8 pages)
D FOFD 4/18/2022 9
E. Tuition Contract 2022-2023 SY (6 pages)
F. Tuition Affidavit 1/18/2023 (1 page)
G. Speech and Language Evaluation 2/23/2018 (8 pages)
H. Occupational therapy evaluation 8/19/2013 (4 pages)
I. Neuropsychological Evaluation 2/2 to 2/3/2018 (11 pages)
J. Neuropsychological Evaluation 8/4 to 8/21/2017 (8 pages)
K Parent 2022 Tax Filing 3
L. CAPD Evaluation 1/19-3/25/2015 (9 pages)
M. Student Fall Report Card 2021-2022 SY (1 page)
N. Student Fall Progress Report 2021-2022 SY (7 pages)
O. Student Winter Progress Report 2021-2022 SY (8 pages)
P. Student Fall Progress Report 2022-2023 (9 pages)
Q. Student Fall Report card 2022-2023 (1 page)
R. Student Winter Progress Report 2022-2023 (0 pages)
S. Notice of Social History 1/18/2022 (1 page)
T Consent for Reevaluation 1/20/2022 1
U Parent/CCSE Emails with CSE Various dates 3
V. Student schedule 2022-2023 SY (1 page)
W [REDACTED] Emails 6/22/2022 2
X Emails with CSE Various dates 14
Y Discharge Summaries Various dates 4
Z Tuition Payments various dates 20
AA Parent tax filing 2022 3
CC Student certificate of completion and [REDACTED]
Program description 22/23 6
DEPARTMENT OF EDUCATION
1. Notice of social history 1/10/22 (2 pages; DOE)
2. Social history update 1/19/2022 (2 pages; DOE)
3 Level 1 vocational interview 1/19/2022 3
4. Notice of IEP meeting 5/8/2022 (3 pages; DOE)
5. Notice of student's invite to IEP 5/8/2022 (1 page; DOE)
6. Second notice of IEP meeting 5/18/22 (3 pages; DOE)
7. Second notice of student's invite to IEP meeting 5/18/2022 (1 page; DOE)
8. Third notice of IEP meeting 5/27/2022 (2 pages; DOE)
9. Third notice of the student's invite to IEP 5/27/2022 (1 page; DOE)
10. IEP 6/7/2022 (1 page; DOE)
11. IEP attendance page 6/7/2022 (1 page; DOE)
12. IEP meeting minutes 6/7/2022 (1 page; DOE)
13. Student's WIAT testing data 6/2/2022 (1 page; DOE)
14. Teacher report Fall 2021 (7 pages; DOE)
15. Teacher report Spring 2022 (8 pages; DOE)
16. Prior written notice 6/13/2022 (4 pages; DOE)
17. School location letter 6/13/2022 (3 pages; DOE)
18 Events log Undated 24
19. Report card 2021-2022 (1 page; DOE)
Footnotes
[1] I find no other evaluations are required at this time