New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 2, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRI 19, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Supervisor, REDACTED

For the Department of Education:

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 2021-2022 school year.

The parties moved to extend the compliance date on several occasions for witness availability. 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 April 21, 2023 upon receipt of the final transcript.

BACKGROUND

There was no IEP developed for Student’s 2021-2022 school year. (Tr. 59)

Parent sent a ten-day notice on November 1, 2021. (Tr. B)

Parent enrolled Student at REDACTED (REDACTED) for the 2021-2022 school year. Student started attending in December 2021. (Exhibit C)

Parent had an independent private psychoeducational evaluation which recommended a 12:1:2 special education program with social skills curriculum and behavioral management system. (Exhibit H)

Parent filed a due process complaint to obtain direct funding for Student’s attendance at REDACTED during the 2021-2022 school year with a reduction for the religious portion of the schedule. They seek funding for the independent private psychoeducational evaluation. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED on the initial hearing date. On the next day of hearing the DOE was represented by their representative REDACTED. It is their position that the DOE offered a FAPE to Student for the 2021-2022 school year. They argue that the unilateral placement is not appropriate and the equities prevent Parent from obtaining relief. In summary, it is their position that the request for tuition reimbursement should be denied in its entirety. They did not submit any evidence and did not produce any witnesses.

PARENT’S CASE

The Parent was represented by their attorney Mordechai Buls. It is their position that the DOE did not offer a FAPE to Student for the 2021-2022 school year. They maintain that the unilateral placement at REDACTED is appropriate. It is their position that the equities favor Parents and they are entitled to direct funding, less the cost of the religious portion, for Student’s attendance at Big N Little during the 2021-2022 school year. They also assert that Parents are entitled to reimbursement for the independent psychoeducational evaluation. They submitted evidence and had witnesses 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 the DOE did not put on any witnesses to defend any IEP or placement. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. Parent testified that there was no IEP meeting. DOE did not dispute any of the allegations. 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, REDACTED, the supervisor at REDACTEDD provided testimony. (Tr 36-68) They are an all-boys middle school housed in a general education school. They service students who have behavioral challenges and or academic deficits.

They follow the Common Core general education curriculum and modify it for each individual student. They use ABA methodology.

Students have opportunities to interact with typically developing peers.

Student attended REDACTED grade in a class with six students. Student had one licensed special education teacher at all times with assistants.

Student had a lot of language delays that impacted his ability to communicate. He had difficulty comprehending the instruction. He did not have age-appropriate vocabulary and he had poor comprehension. He was very far behind in the area of reading and literacy. He struggled with decoding and comprehension. He had slow processing speed. He had many challenging behaviors that impacted his classroom learning, as well as socially and emotionally. Student had some sensory behaviors. He was noncompliant and his attention was very scattered. He had a lot of sensory seeking behaviors. He had no social boundaries. His play skills were deficient.

They conducted a functional behavior assessment in order to identify challenging behaviors that interfere with Student’s ability to progress in academics and in the social environment. They developed a very specific behavior intervention plan to reduce challenging behaviors and increase communicative replacements. They developed a treatment plan with incremental goals which Witness described as all -inclusive of cognitive academic readiness, language communication, social behavior, as well as reading and writing.

She opined that Student made meaningful academic progress during the 2021-2022 school year. He made progress behaviorally, socially, and emotionally. He utilized intervention instruction and the behavior plan and techniques .

Student made academic progress. His greatest progress was n readiness skills, in his ability to focus, transition and follow the routine of the classroom. Opportunities for movement were built in the direct instruction and are all technologically enabled. Student improved in the area of literacy. He improved in his decoding skills and built on individual vocabulary words.

Witness explained that the curriculum was tailored to his needs. He required repetition to retain information to memory.

Student improved in math and language and in communication. His self -regulation improved.

Student received related services of occupational therapy, speech therapy and counseling both individual and in a group setting. Related services were provided to him by appropriately licensed and certified professionals in their respective fields.

I find evidence is undisputed that REDACTED provided Student with the individualized instruction, treatment plan, and small class size which enabled him to make progress in all areas, social, emotional and academic. I find that REDACTED was appropriate for the 2021-2022 school year. I find Parent met their burden under prong two.

With respect to prong three, there is nothing in the equities that would prevent Student from obtaining requested relief.

In summary, I find DOE failed to provide a FAPE to Student for the 2021-2022 school year, REDACTED was appropriate and the equities favor Parent.

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 their inability to pay the tuition. Their income is REDACTED a month. (Tr. 69) I find Parent is entitled to direct funding.

RELIGIOUS INSTRUCTION

Evidence establishes that the tuition includes $3,500 for religious instruction. The tuition is $10,000 a month. Student only attended for seven months for a tuition of $70,000. (Tr. 64, Exhibit D) I find that DOE is responsible for 66,500 dollars for Student’s attendance at REDACTED for the 2021-2022 school year.

REQUEST FOR EVALUATION

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).

In this case there is no evidence that DOE ever conducted any evaluation for Student.

DOE did not defend any evaluation. I find Parent is entitled to reimbursement for the independent psychoeducational evaluation.

ORDER

DOE shall directly fund the tuition for Student’s attendance at REDACTED during the 2021-2022 school year in the amount of $66,500 upon evidence of contract and attendance.

DOE shall reimburse the Parent for the psychoeducational evaluation upon evidence of invoice and payment.

Sharyn Finkelstein April 22, 2023

Impartial Hearing Officer

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

PARENTS

A Request of a due process proceeding notice of appearance 1/2/23

7 pgs

B. Ten-day notice 11/1/21 (2 pages)

C. Student contract program description and curriculum 11/16/21 (19 pages)

D Tuition breakdown and payments 2/23/23 2

E. Curriculum schedule 2021/2022 (1 page)

F. Student attendance 2021/2022 (1 page)

G Assessment plans, reports and evaluations 2021/2022 30

H Confidential psychoeducational evaluation various y

DEPARTMENT OF EDUCATION

No evidence