Impartial Hearing Decision

COVER SHEET

Case 244592

Requested January 5, 2023

Hearing Officer Sharyn Finkelstein

Student’s Name [REDACTED]

Date of Birth [REDACTED]

District [REDACTED]

Hearing Requested By Parent

Date of Hearing July 31, 2023

September 21, 2023

October 6, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close November 10, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 31, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PRSONS WHO APPEARED ON OCTOBER 6, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Witness

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 2021-2022 school year.

The parties moved to extend the compliance date on several occasions for witness availability and submission of briefs. 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 November 10, 2023.

MOTION TO DISMISS

DOE made a motion to dismiss based on the statute of limitations. Each party submitted briefs. (Exhibit 8 and Exhibit G)

DOE requested that a determination be made on the motion prior to the commencement of the substantive hearing. I informed Parties on the record prior to the initial hearing date that I was denying the motion.

As a general matter, “[a] statute of limitations provides an affirmative defense, and the burden is on the defendant to establish when a federal claim accrues.” Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (citing Fed. R. Civ. P.8(c)). Furthermore, in the context of IDEA due process hearings, New York State law explicitly places the burden of proof on the school district, “including the burden of persuasion and burden of production, “for all issues other than the appropriateness of a private school placement selected by the parents. N.Y. Educ. L § 44041(1)(c).

The IDEA requires that, unless a state establishes a different limitation period under state law, a party must request a due process hearing within two year or when the party knew or should have known of the alleged action that forms the basis of the complaint. New York State has affirmatively adopted the two-year period found in the IDEA Educ. Law §4404(1)(a); 8 NYCRR 200.5(j)(1) (i).

DOE argues that Parent’s claim accrued on December 10, 2020, the day of the IEP meeting. They argue that Parent knew or should have known of the alleged action that forms the basis of the complaint at the time of the meeting. It is their position that the due process complaint which was filed in January 2023 is outside of the statute of limitations.

Parent points out that Parent did not leave the meeting on December 10, 200 with a copy of the IEP. A school location letter was issued on January 14, 2021. It is their position that that the date of accrual was not until Parent received a school location letter.

I find that Parent was not expected to know of a possible claim until they had a copy of the IEP and school location letter.

I find that the date of accrual was January 14, 2021. The due process complaint was filed within two years of January 14, 2021. I find the claim is not barred by the statute of limitations.

DOE’s motion to dismiss is denied.

BACKGROUND

Student has been diagnosed with hearing loss at birth. He has recently been diagnosed with autism spectrum disorder, a language disorder, developmental coordination disorder and ADHD. (Tr. 142)

On December 10, 2020 an IEP meeting was held for the 2021-2022 school year. The team recommended a 12:1:1 class with related services. (Exhibit 1)

A school location letter placed Student at [REDACTED]. This was the same placement that had been recommended for Student in the past. Parent had already disagreed with the placement. (Exhibit 2, Tr.146)

On May 5, 2021, Parent re-enrolled Student at [REDACTED] for a 12-month program. (Exhibit E)

On May 26, 2021 Parent sent an email in which they requested a new IEP meeting. They requested that the team defer case to CBST for residential programs. (Exhibit H)

On June 18, 2021 Parent sent a ten-day notice letter informing DOE of their concerns and intent to place Student at the [REDACTED] School for the 2021-2022 school year. (Exhibit B)

In February 2022 Student left [REDACTED] and transitioned to a New York State-approved residential school. All Parties agreed with the change and he was moved to a funded nonpublic residential school, [REDACTED]. (Tr. 149)

Parent filed a due process complaint to obtain funding for the time period that Student attended [REDACTED] during the 2021-2022 school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by various persons.^[1] It is their position that the due process complaint that was filed in January of 2023 is outside the statute of limitations. It is their position that DOE provided a FAPE to Student. They submitted a motion to dismiss and a closing brief. (Exhibit 8 and 10) They submitted evidence but had no witnesses. They did cross-examine Parent’s witnesses. It is their position that [REDACTED] was not appropriate and all the requested relief should be denied in its entirety.

PARENT’S CASE

The parent was represented by their attorney [REDACTED]. It is their position that the matter is not barred by the statute of limitations. It is their position that DOE failed to provide Student with a FAPE for the 2021-2022 school year. They maintain that [REDACTED] School met Student’s special education needs for a portion of the 2021-2022 school year. It is their position that Parent is entitled to funding for the time period in which Student attended [REDACTED] during the 2021-2022 school year. They submitted an opposition brief to the motion to dismiss and a closing statement. (Exhibit G and J) Parent and teacher from [REDACTED] testified in support of Parent’s 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. 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. DOE did not dispute any of the allegations. I find that evidence without accompanying testimony is not sufficient to meet DOE’s burden. I find that 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, social studies teacher at [REDACTED] testified. They are a private school for students with disabilities. They teach students with moderate to severe learning and speech-language disabilities.

Typical class size is twelve students with two supporting care professionals and one or two teachers. (Tr. 96)

During the 2021-2022 school year they began the year with eight students, two paraprofessionals and one or two teachers. They have related services and all providers are certified in their respective areas.

Curriculum for middle school is created by teachers in collaboration with their curriculum directors. They follow a general curriculum plan but within that they adapt and create materials. (Tr. 98)

They group students socially and emotionally and with similar academic levels. (Tr. 99)

They have two scheduled meetings a week that are specific to discussing students. She taught Student. They determined his needs by looking at IEPs past progress reports, classroom observation, and parent’s application. (Tr. 100)

Student needed some support in regard to safety in school, in the community, and selfregulation skills when he was upset. They worked on his frustration tolerance. Student required some support maintaining conversations with peers. (Tr. 102)

Witness opined that having a homeroom benefitted Student. It was a time for students to get more organized. They review the schedule. They build organization skills. Activities of daily living are built into homeroom. (Tr. 105)

Student required support in sustaining focus on topics. They worked on sustaining attention and building frustration tolerance. They worked with a lot of checklists to keep him organized and focused. They worked on comprehension strategies within the humanities curriculum. (Tr. 105)

At the start of the year, Student was in a class of eight students, two paraprofessionals, and one or two teachers. He was with peers with the same academic levels. (Tr. 106)

They use a lot of technology which made Student work more independently. They worked a lot with visuals. The curriculum has a lot of supports built in that they tend to differentiate depending on a student needs. (Tr 109)

Progress is measured through the final project, teacher observation and some formative assessment. (Tr 113)

Student had a paraprofessional with him the entire day. (Tr. 135) They would support him be breaking down tasks and providing breaks.

Student received sensory support from an occupational therapist. (Tr. 134)

Teacher opined that Student made progress during the time he was at [REDACTED]. She described progress he made in maintaining relationships and in academics. (Tr. 119)

Parent submitted a progress report. (Exhibit F)

Parent argues in closing (Exhibit J) that [REDACTED] provided Student with a fully individualized program that was specially designed to address his learning, social, emotional and behavioral profile. DOE argues in closing (Exhibit 10) that [REDACTED] did not have the proper resources to effectively address Student’s behavior. Witness acknowledged that Student presented with behavior issues at the beginning of the school year. She testified “counselor might check in with him” (Tr.134) I don’t discount that testimony establishes that there were certain supports in place for Student. I find that the lack of any behavior intervention plan or regularly scheduled individual and group counseling supports DOE’s position. I find Cooke did not have sufficient supports to address Student’s behavior.

Student exhibited an increase in unsafe behavior and in difficulty self-regulating when he was upset. He was running away from teachers, swearing, and pushing things off the table. He “required an increase in support” (Tr. 118)

Ultimately Student was transferred to a residential placement because of [REDACTED]’s inability to provide the supports that Student required. In the Fall of 2021, everyone agreed that Student required a residential setting. (Tr. 149)

Student’s behavior increased as the year progressed. However, Parent was aware of the problems and lack of adequate support prior to his attending for the 2021-2022 school year. In Parent’s letter dated May 26, 2021, Parent specifically stated that Student who attends [REDACTED] is “struggling significantly and requires a greater level of support. (Exhibit H) Parent testified that Student had really needed a higher level of care. (Tr. 149)

Parent testified that [REDACTED] did everything that they could. (Tr. 156)

I find that Student’s behavioral issues increased partly because the school did not have sufficient supports.

I recognize DOE’s failure to timely address Parent’s concerns and request for a residential placement. I find that it does not relieve Parent of their burden to appropriately place Student.

I find [REDACTED] may have provided supports for Student in various areas, but I find that their failure to adequately support Student’s behavior renders them an inappropriate placement.

I find Parent failed to meet their burden under prong two.

With respect to prong three, I find nothing in the record would prevent Parent from obtaining relief.

In summary, I find DOE failed to provide Student with a FAPE for the 2021-2022 school year, [REDACTED] was not appropriate and any request for reimbursement or direct funding for Student’s attendance at [REDACTED] during the 2021-2022 school year is denied.

ORDER

The request for tuition reimbursement and or direct funding is denied.

November 19, 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. Due process complaint 1/5/23 (4 pages)

B Parent ten-day notice letter

With confirmation receipt 6/18/21 4

C. attendance record 5/17/22 21/22 (1 page)

D. class schedule n/a 21/22 (2 pages)

E. reenrollment contract 5/5/21 21/22 (2 pages)

F. [REDACTED] School program report 2/4/22 (18 pages)

G Brief in opposition to motion to Dismiss 8/14/23 10

H. Letter to the CSE 5/26/21 (1 page)

I. Affidavit of payment 5/21/2023 (2 pages)

J Closing Statement in Support of Petitioner’s Claim 11/3/2023 13

DEPARTMENT OF EDUCATION

1. IEP 1/4/21 (31 pages; DOE)

2. Prior Written Notice with School Location Letter 6/16/21 (6 pages; DOE)

3. Notice of Meeting 11/20/2020 (1 page; DOE)

4. Aaron School Report 5/2020 2019-2020 (10 pages; DOE)

5 Audiology Report from Weill Cornell

Medicine 3/26/2019 ^[2]

6 2Parent PWN 1/19/2021 3 7 WITHDRAWN

8 Brief in Support of Motion to Dismiss 1/19/2021 4

9 Emails from Parent to CSE 5/26/2021 and 8/20/2021 2

10 DOE Closing brief 11/3/2023 7

Footnotes

[1] See appearance information Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

[2] Parties agree that PWN should have been admitted as Parent letter (Tr. 67-68)