New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

REDACTED School Psychologist Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 13, 2023

For the Student:

REDACTED Attorney

REDACTED Supervisor REDACTED

REDACTED

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 21, 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. 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 September 1, 2023.

BACKGROUND

On November 23, 2021 an IESP was created which recommended that Student receive five periods of SETSS and speech language therapy twice a week for 30 minutes for a ten -month school year. (Exhibit 1)

On June 15, 2022 Parent signed a contract with REDACTED (REDACTED) for the 2022-2023 school year. (Exhibit E)

On July 6, 2022 Parent notified DOE that they had not provided Student with proper placement for the 2022-2023 school year. They advised of their intent to send Student to REDACTED. (Exhibit B)

On August 15, 2022 Parent requested that Student be revaluated and an IEP meeting be convened. (Exhibit C)

On November 21, 2022, an IEP was created which recommended that student attend an receive Integrated Co-teaching Services. (ICT). They recommended related services of speech language therapy, individually and in a group. (Exhibit D)

Parent filed a due process complaint to obtain direct funding for REDACTED program for the 12- month 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 further argue that Parent’s unilateral placement is inappropriate and the equities favor the DOE. In summary, it is their position that all relief requested by Parent should be denied. They had a witness and submitted evidence in support of their position.

PARENT’S CASE

The parent was represented by their attorney REDACTED. It is their position that DOE did not create an IEP for the Student prior to the start of the 2022-2023 school year. It is their position that DOE failed to implement either the prior IESP or the current IEP. It is their position that Student required a full-time 12- month special education classroom. It is their position that REDACTED is appropriate. They maintain that the equities favor Parent. In summary, they maintain that Parent is entitled to direct funding for Student’s attendance at REDACTED for the 12-month 2022-2023 school year. They had several witnesses and submitted evidence 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, Parent argues that DOE did not offer Student a timely placement for the extended 2022-2023 school year. DOE points out that Student had a prior IESP which was in effect until November 2022. DOE received a request from Parent on August 15, 2022 for an IEP meeting. The date of first day of school was July 1, 2022 prior to DOE receiving actual notice from Parent. An IEP meeting was held on November 22, 2022. I find that DOE acted in a timely manner.

Parent suggests that there were no current evaluations. DOE points out that in the prior written notice there were evaluations from 2019 which were still current of the three-year triennial evaluations. (Exhibit 2)

DOE Witness is a school psychologist with the DOE and attended an IEP meeting for Student on November 21, 2022. (Exhibit D)

They reviewed teacher progress reports, curriculum data and teacher-based assessments from the school.

Team recommended an integrated coteach program with related services of speech therapy individual as well as group, and counseling. Parent reject counseling. (Tr. 26)

Team recommended a list of management needs for Student.

Goals were submitted by the school and developed by teachers who had worked with Student. Goals were discussed at the meeting. (Tr. 27)

Witness opined that Student would receive a very highly structured academic environment with positive reinforcement. She opined that they would provide strategies in the least restrictive environment.

Team opined the program was appropriate because it provided access to specialized designed instruction and annual goals that could be met within the program. (Tr. 30)

Student would receive accommodations to meet their educational needs.

Student would receive related services. Student would have access to typically developing peers. (Tr.30)

They considered other programs. They concluded that Student benefitted from modification throughout the school day. They considered the 12:1:1 but determined it was too restrictive to totally remove him from the general education environment. (Tr. 33)

Parent Witness opined that program recommended in the IEP was not adequate because it did not provide Student with full time special education. Class size could go up to twenty -seven students. She explained that with Student’s lack of focus and attention and difficulty with language he required a small class size.

She opined that the IEP which described Student’s social and behavioral challenges did not provide a needed behavior intervention plan. (Tr 67-68)

The IEP only recommends ICT class for twenty periods a week She opined it would not be supportive enough (Tr 71)

Witness opined that it would have been impossible for Student to transition from class to class. (Tr. 71)

I find that the evidence establishes that an ICT class would not have provided Student with enough support. I find Student’s difficulties with transition, lack of focus, behavior and social issues required him to attend a smaller class size with additional support.

I find that the IEP was 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, Witness is the supervisor at the REDACTED. They are a middle school program for boys only housed in a general education school. Students have behavioral challenges and delayed language. They follow the Common Core curriculum. They modify and accommodate the general education curriculum for each individual student. (Tr. 56-57)

Student was in REDACTED grade. There were seven students in his class. There was one licensed special education teacher and assistant. Student had opportunities to interact with typically developing peers. (Tr. 59)

There are typically developing peer models during meal time and social skills time. Students have opportunity of typically developing peer models in their own individualized curriculum when they achieve mastery in a particular goal. They bring in one or two general education peers to help with generalization and mastery of academic goals. (Tr. 58)

Student had very poor impulse control. Student had very poor language skills. Student had poor eye contact and difficulty expressing himself. Student had difficulty with focus and attention.

Student had sensory seeking behaviors which made it difficult for him to interact with others. Socially he had a difficult time in a group or anything more than two children. He was unable to follow the conversation. He would become distressed and was unable to make any meaningful relationships. She opined that Student could not participate in a group. He felt bad about himself and would get upset. He presented as a very introverted isolated child.

Student had academic challenges. He had very poor readiness skills. Student had poor language skills. He lacked the ability to be prepared and follow direction. Student had difficulties with transitions. His decoding skills were halted. He had a difficult time with comprehension. He struggled with reading. Problem solving was difficult because of reading comprehension. Witness explained that Student’s difficulty with reading comprehension impacts all of his academic areas. She described him as a struggling student. (Tr. 59-62)

Student had a functional behavior assessment after they had completed an evaluation. They created a behavior intervention plan which led to a treatment plan. The treatment plan is an accumulation of all his challenges and needs and addresses replacement behaviors so he can reduce his challenging behaviors. (Tr. 73)

Treatment plan includes small incremental goals under each area including reading, language, communication and social behavior. They take data on an hourly basis. They adjust his plan through a date driven plan making sure he makes progress. (Tr. 74)

Witness opined that Student definitely made progress. He made progress behaviorally, socially and emotionally. He identified his challenging behaviors.

Academically Student made progress in reading. He made progress in his preparation for an activity. He learned to follow through. He learned words and phrases. In Math he made consistent progress. He made progress in problem solving, writing and in literacy. (Tr. 77)

Student received speech and language therapy and occupational therapy. His social skills group was operated by his counselor who had a BCBA supervisor. Related services providers were appropriately licensed and certified professionals in their respective fields.

DOE argues that the placement is too restrictive. There was testimony as to Student’s opportunity to have access with typically developing peers. DOE argues that the placement is not designed to meet Student’s needs. I find testimony establishes that the treatment plan and constant review of the plan does in fact consider Student’s individual needs.

I find evidence establishes that REDACTED provided Student with individualized plan and small group instruction which enabled him to progress in all areas. I find REDACTED is appropriate and Parent met their burden under prong two.

With respect to prong three, Parent attended the IEP meeting. Parent advised the DOE on two occasions that they did not have a placement and of their concerns. DOE points out that Parent signed a contract with REDACTED prior to informing DOE of their intent to unilaterally place Student. They point out that the contract did not allow Parent to withdraw Student from placement and suggest that Parent had no intention of considering a public-school placement. This argument is speculative because the DOE did not offer an appropriate program. I find that the equities would not bar Parent from relief except as a contributing factor to the issue of a twelve-month program as discussed below.

TWELVE MONTH PROGAM

Parent Witness opined that Student requires a twelve – month program because of his challenges both behaviorally and with academics. DOE points out that a student is entitled to an extended school year program when the period of review and reteaching required to recoup the skills extended beyond the time ordinarily reserved for a student. (Tr. 131) Parent did not provide any specifics to show that Student would regress without a 12-month program. Any child may benefit from a 12-month program but that is not the criteria. I find Witnesses does not point to any specifics or examples of Student’s regression after a school break or holiday. I find no evidence of behavior that would justify need for 12-month program. Parent only advised DOE of their intent to unilaterally place Student for a 12 month -school year after the school year had already begun. I find Student is only entitled to a ten-month school year.

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 family income. (Tr. 111) I find that Parent is entitled to direct funding for any remaining balance.

CONTRACT

The total amount of the tuition which includes related services and the religious portion is $144,000. The religious portion is $5,000. The total amount due for 12 -month school year with a reduction for the religious portion is $139,000. Tuition is $11,583 per month. I find the ten-month tuition with religious reduction is $115, 830.

In summary I find DOE failed to provide a FAPE to Student for the 2022-2023 school year, REDACTED is appropriate and equities favor Parent. I find Parent is entitled to direct funding for any remaining balance of tuition. I find DOE is not responsible for religious component of schedule and reduction is warranted. I find DOE is only responsible for a ten month program.

ORDER

The DOE shall reimburse Parent and directly fund any remaining balance for Student’s attendance at REDACTED during the 2022-2023 school year not to exceed $115, 830 which represents tuition for 10 -month school year, upon evidence of attendance and contract. Sharyn Finkelstein September 9, 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. Request for due process proceeding and Notice of appearance January 1, 2023 (7 pages)

B. Ten-day notice July 6, 2022 (2 pages)

C. Ten-day notice August 15, 2022 (2 pages)

D. IEP November 21, 2022 (27 pages)

E Student contract program description

And curriculum June 15, 2022 15

F Tuition Breakdown

Affidavit and payment March 21, 2023 2

G. Curriculum schedule 2022-2023 (1 page)

H. Student attendance 2022-2023 (1 page)

I Assessment plans

Reports and evaluations 2022-2023 1

J. Confidential psychoeducational evaluation 6/24/2022 (8 pages)

DEPARTMENT OF EDUCATION

1 IESP 11/23/2021 8

2. Prior written notice 11/30/2022 (6 pages; DOE)