New York City Department of Education, Impartial Hearing Decision

Case Number: 594395 – NYC: 244489

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 2, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Co-Director of [REDACTED]

For the Department of Education:

[REDACTED] District Representative ^[1]

[REDACTED] District Representative

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 initially for settlement and later for witness availability. 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 June 6, 2023.

BACKGROUND

Student is [REDACTED] old and currently attends [REDACTED] grade at

[REDACTED]. ([REDACTED])

Student had attended public schools prior to his enrollment at [REDACTED].

Student’s most recent IEP recommended an [REDACTED] Program. (REACTED)

Parent did not agree with the recommendation and sent letters to DOE. Parent did not receive any response.

Parent enrolled Student at [REDACTED] for the 2022-2023 school year. Parent paid the entire tuition.

Parent filed a due process complaint requesting tuition reimbursement for Student’s attendance at [REDACTED] for the 2022-2023 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by [REDACTED] on the initial hearing date. [REDACTED] represented DOE on the final date of hearing. They submitted documents into evidence. They did not present a Prong 1 case. (Tr. 25)

PARENT’S CASE

The Parent was represented by their attorney [REDACTED]. It is their position that DOE failed to offer a FAPE to Student for the 2022-2023 school year. They maintain that Student’s placement at [REDACTED] ([REDACTED] ) is appropriate. They submitted evidence and had two witnesses in support of their position. It is their position that Parent is entitled to reimbursement for Student’s attendance at [REDACTED] during the 2022-2023 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 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 DOEs failure to provide an appropriate program or placement. Parent testified with respect to DOE’s numerous failures to address Student’s needs. 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, the Co-director of [REDACTED] at [REDACTED] provided testimony. (Tr. 38-70) [REDACTED] is an inclusive, independent school for grades [REDACTED] through [REDACTED]. They group students based on their ability. The classes are learning the same content but are presented in different ways and with different pacing.

They have small class size. They use an online system called [REDACTED] which is their main source of communication.

The [REDACTED] Program is the academic support program at [REDACTED]. Students either have to have an IEP or a neuro-psychological or psychoeducation evaluation. They use it to place students with particular [REDACTED] teachers. Every [REDACTED] teacher has a group with around ten students. They meet with students in a small group before and after school. In the morning they focus on executive functioning skills, organization and getting ready for the day. Witness described the afternoon session as a structured study hall time. Content teachers are available during both sessions. Students have two individual sessions consisting of forty-minute sessions. They are pulled from non -academic classes. They focus on whatever skills or strategies a student needs at the time.

They work with a team of counselors, students and families as well as with [REDACTED] and classroom teachers.

They use a modified curriculum that they develop with elements of Common Core.

Students have learning disabilities in reading, writing and math, language disorders, ADHD, executive functioning, anxiety and dyslexia. They group students with similar learning profiles and needs.

Student is in [REDACTED] grade. The average class size has twelve students. Student has teacher recommendations, evaluations and report cards in his file.

Student is very bright and enjoys participating in class. Math is an area of strength. He has difficulties with language-based learning and processing. He struggles with writing and with organization. He struggles with attention and executive functioning skills and has difficulties engaging socially with peers. Student works really fast and jumps around with what he wants to say.

Student benefits from have the writing process scaffolded and broken down, and one on one meeting with his teacher. He benefits from graphic organizers and outlines. He receives sentence starters.

Witness opined that Student has been better able to independently use routines. His writing has been more organized.

Student can be easily distracted. He requires redirection and refocusing prompts to get back on task. His ability to stay focused in class has increased. He requires less redirection and prompting . Witness opined that Student benefits from individualized attention that he receives. Student is comfortable in a small class. He benefits from constant routine. He receives daily supports to help maintain his organization. His study skills have improved. He works on social pragmatic skills.

Student has speech sessions and his need for redirecting cues has decreased.

Student gets along well with the students in the group. He works with the counselor as needed. Student has made social progress. He is involved in the school community and is making some friends.

Student has made Improvements in writing and with executive functioning. He benefits from daily support. He keeps up with his assignments and he is better able to stay focused.

Student received individual attention at Jump Start. He is more confident, more comfortable, and more independent. Student is doing fine socially and emotionally.

Student receives speech during a lunch period.

Parent provided testimony. She described the various opportunities to speak with Student’s teachers. They provide her with advice to address Student’s executive functioning issues at home.

Parent opined that Student has become a better Student. She described him as a lot more flexible. When he does get upset, he no longer goes into a full meltdown.

I find evidence establishes that [REDACTED] together with their [REDACTED] provided Student with the small class size and individualized attention that he required to address his specific issues. Evidence is undisputed that Student has made progress in various areas. I find [REDACTED] is appropriate and Parent met their burden under prong two.

With respect to prong three, Parent testified as to her efforts to alert DOE of Student’s issues. She testified as to her willingness to send Student to a public school. She provided DOE with notice of her concerns. I find that there is absolutely nothing in the record that would prevent Parent from obtaining full relief.

In summary, I find DOE failed to provide a FAPE to Student for the 2022-2023 school year, I find [REDACTED] with the [REDACTED] program is appropriate and equities favor Parent. I fin Parent is entitled to reimbursement for Student’s attendance at [REDACTED] for the 2022-2023 school year. ^[2]

ORDER

DOE shall reimburse Parent for tuition paid for Student’s attendance at [REDACTED] for the 2022-2023 school year upon evidence of contract, payment and attendance. ] Sharyn Finkelstein June 8 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

DEPARTMENT OF EDUCATION ENTERED FOR IDENTIFICATION 3

1. IEP 9/30/2021 (17 pages; DOE)

2. PWN 9/24/2021 (3 pages; DOE)

PARENT

A. Impartial hearing request 3/3/2023 (12 pages)

B. DOE acknowledgment of receiving request 1/4/2023 (1 page)

C. Ten-day letter 8/17/2022 (6 pages)

D. Corrected ten-day letter 8/17/2022 (6 pages)

E. DOE response to D 8/18/2022 (1 page)

F. Letter to [REDACTED] 12/12/2022 (6 pages)

G. email from DOE-appointment of IHO 1/30/2023 (1 page)

H. NOA 2/1/2023 (2 pages)

I. DOE response to hearing request 3/14/2023 (3 pages)

J. Email to DOE regarding DOE response to Request (1 page)

K. [REDACTED] School webpage 4/14/1023 (36 pages)

L. Weekly schedule 22/23 (1 page)

M. Attendance report 10/15/2022 (1 page)

N. Notarized tuition invoice 10/6/2022 (1 page)

O. Invoice 6/21/2022 (1 page)

P. Enrollment contract Various dates (4 pages)

Q. Email correspondence between Parent and DOE 1/11/2023 (2 pages)

S. Email correspondence between Parent and DOE 3/31/2022 (2 pages)

T. Neuropsychological evaluation various (19 pages)

U. [REDACTED] South individual IEP various (14 pages)

V Email from Parent to [REDACTED] with Attached June 22 psychological evaluation 9/29/2022

W. Teacher report 11/17/2022 (2 pages)

X. First quarter report card 12/31/2023 (1 page)

Y. Second quarter report card 12/31/2022 (1 page)

Z. Third quarter report card 4/3/2023 (1 page)

Footnotes

[1] [REDACTED] covered for [REDACTED] until he was able to appear 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.

[2] Parent in their due process complaint requests relief that pertains to the 2021-2022 school year. Parent requested an evaluation (no specific evaluation is mentioned) in order to determine “possible” compensatory education. The hearing addressed the 2022-2023 school year. In Parent’s opening, they specifically request tuition reimbursement for Student’s attendance at REDACTED. (Tr. 25, 27) I have intentionally omitted any relief with respect to the 2021-2022 school.