Impartial Hearing Decision

COVER SHEET

Case Number 245327

Requested January 25, 2023

Hearing Officer Sharyn Finkelstein

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing June 30, 2023

July 12, 2023

September 21, 2023

October 19, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close November 22, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 30, 2023

For the Student:

REDACTED Attorney

REDACTED Attorney

REDACTED Parent

REDACTED Parent

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 12, 2023

For the Parents:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

REDACTED District Representative

REDACTED Special Ed Teacher, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2023

For the Parents:

REDACTED Attorney

REDACTED Attorney

REDACTED Parent

REDACTED Parent

REDACTED Speech Language Pathologist

REDACTED Counselor

For the Department of Education:

REDACTED District Representative

REDACTED School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 19, 2023

For the Student:

REDACTED Attorney

REDACTED Attorney

REDACTED Parent

REDACTED Parent

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 (hereinafter referred to as (“Student”) for the 2021-2022 and 2022-2023 School years.

The parties moved to extend the compliance date on several occasions for witness availability and to submit closing briefs. 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 November 22, 2023.

BACKGROUND

Student is REDACTED years old and classified by the CSE as a student with autism. (Exhibit F)

Student is diagnosed with autism disorder without accompanying intellectual or language impairment. Student has gifted intellectual potential. He demonstrates weakness in social communication skills and social interaction. He has difficulty with executive functioning skills, fine motor and visual motor integration skills. He has a very advanced vocabulary and is able to engage in a lot of deep-thinking advanced analysis. He has issues in terms of problem solving and ability to focus.

Student had a great deal of anxiety and experiences a lot of frustration. He has low self esteem and often behaves in a depressive state. He has a lot of issues with social connections. He is very sensitive and becomes dysregulated. (Tr. 190)

On June 2021 CSE convened to develop an IEP for student for the 2021-2022 school year.

Team referred the case to the Central Based Support Team for placement in an approved nonpublic school for a 12- month school year. (Tr. 51)

Student did not receive a school placement. (Tr. 189)

At the beginning of the 2021-2022 school year a nonpublic school recommendation was in place for Student.

On December 16, 2021, CSE reconvened and recommended an interim placement in a 12:1:1 district 75 school. (Exhibit F) They had not identified an approved nonpublic school for the 2021-2022 school year.

On June 27, 2022 Parents received a school location letter placing Student at REDACTED for the 2022-2023 school year. (Exhibit 4)

On November 3, 2022 the CSE met to develop an IEP for Student. They recommended a 12:1;1 special class at an New York City Department of Education (DOE) nonspecialized school on a 12-month basis. (Exhibit 2)

Parent enrolled Student at REDACTED for the summer of 2021/2022 and 2022/2023. (Exhibits T and U)

Parent enrolled Student at REDACTED (REDACTED) for both the 2021-2022 and 2022-2023 school years. (Exhibits K and L)

Parent filed an amended due process complaint to obtain reimbursement for Student’s attendance at REDACTED for both the summer of 2021-2022 and 2022-2023. They request reimbursement for Student’s attendance at REDACTED during the 2021-2022 and 2022-2023 school years. They request a continuation of Student’s busing to and from Quad. (Exhibit X)

DEPARTMENT OF EDUCATION’S CASE

The DOE was represented by their representative REDACTED. In DOE’s closing, they stated that they are not contesting prong one in reference to either the 2021-2022 school year or the 2022-2023 school year. (Exhibit IHO II) It is their position that REDACTED is not appropriate and Parent failed to meet their burden under prong two for both school years. They argue that there is nothing in the record with respect to any camp summer program. In summary, it is their position that all requested relief should be denied. They submitted evidence, a closing brief and had a witness in support of their position.

PARENT’S CASE

The parent was represented by their attorney REDACTED. It is their position that the DOE did not provide a FAPE to Student for either the 2021-2022 school year or the 2022-2023 school year. It is their position that REDACTED was appropriate for both the 2021-2022 and 2022-2023 school year. They maintain that the equities support Parents. It is their position that Parents are entitled to reimbursement for Student’s attendance at REDACTED for the 2021-2022 and the 2022-2023 school year. They submitted evidence, a closing brief and had several 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, DOE did not contest prong one with respect to the 2021-2022 school year. They did have witnesses with respect to the 2022-2023 school year. It was initially their position that DOE offered Student a FAPE for the 2022-2023 school year. (Tr.46) In DOE’s closing, they no longer contested prong one for the 2022-2023 school year. (Exhibit IHO

II) Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement for the 2021-2022 and 2022-2023 school year. I find DOE failed to provide a FAPE to Student for the 2021-2022 or 2022-2023 school year. I find DOE failed to meet their burden with respect to both school years.

With respect to prong two, in the amended complaint there is a request for reimbursement for Student’s attendance at summer camp during the 2021-2022 and 2022-2023 school years. Conspicuously absent in Parent’s closing, is any reference to the request. DOE argues in closing that there is nothing in the record to support a finding of the appropriateness of the program. I agree with DOE that there is no evidence that the summer program was tailored to meet Student’s individual needs or provided any educational benefit. Any request for reimbursement for summer camp is denied.

REDACTED

REDACTED is a small special education school that provides instruction to students who are cognitively gifted and also have some sort of diagnoses. Students require a lot of individualized support. (Tr. 135) 2021-2022 School Year The Director of clinical affairs at REDACTED provided testimony. She was involved in case management of Student for the 2021-2022 school year.

Student struggled with rigidity and had challenges with anxiety. He had difficulty with peer interactions. He had characteristics of depression which impacted on his school day. (Tr. 161)

Student’s academic functioning in terms of his ability was strong. (Tr. 162)

Student’s class consisted of ten students and four adults which did not include related service providers. This consisted of a head teacher, two associate teachers and a psychosocial teacher (Tr 164)

The psychosocial teacher works on integrating social emotional learning and skill building throughout the day. They help students with strategies.

Student received individual academic periods in order to help him feel comfortable with new material. (Tr. 163)

Student had extensive check ins. He was able to step away from a group and take time to himself. There was a staff member always available to check in and help him work through a particular moment.

Student’s clinical team collaborated with his teachers. (Tr. 163)

Parent testified that REDACTED helped Student address his stress levels, levels of frustration and anxiety. They provided him with long breaks and strategies through periods where he had frustration, anxiety and low self-esteem. They opined that REDACTED did a good job in helping him understand his feelings. They frequently communicated with Parents. Parent testified as to the consistent support they received from REDACTED in supporting Student during difficult periods. (Tr. 195) REDACTED created assignments that structured around his interests. Parent testified that Student made progress in Student’s ability to advocate for himself. (Tr. 201), in his understanding of himself and ability to advocate for himself. (Tr 201) Student made progress in his play-based interactions and his ability to engage in class. (Tr.168)

Instruction is largely in small groups. Student received 1:1 instruction in math. Student made progress in his writing, math and literature.

DOE argues in closing (Exhibit IHO II) that REDACTED is too restrictive. I find evidence establishes that Student who had difficulty with peer interactions and had anxiety required a small setting with multiple adults in the class who provided support.

DOE argues that REDACTED did not provide physical therapy. Private school is not required to provide every related service that was recommended on the DOE IEP. DOE points out that counseling was only provided once a week. There was testimony that Student was provided with an additional counseling session. (Tr. 167) Student’s counselor pushed into his classroom on a daily basis. (Tr. 147) There was a psychosocial teacher in the class at all times. (Tr. 218) There was a lot of collaboration with Parents to help him navigate the school day. I find evidence establishes that REDACTED provided Student with various types of formal and informal support to address his challenges.

I find that REDACTED provided Student with small class size and individual attention that he required to make progress. I find REDACTED was appropriate for the 2021-2022 school year.

I find Parents met their burden under prong two. 2022-2023 School Year

Student’s class consisted of ten students in the first half of the school year with five adults. There were two head teachers, an associate teacher and a psychosocial teacher. Their teachers are more social emotional minded and provided behavioral support. (Tr 142. There was a paraprofessional and one student in the class had their own paraprofessional. (Tr 142)

The majority of Student’s day was in small groups consisting of three or four students. He also received some one-on -one instruction.

Curriculum is in line with New York State learning standards. (Tr. 146)

There are weekly team meeting including the academic team, occupational therapists, speech language therapists and learning specialists.

Student experienced a fair amount of anxiety. This was a challenge during the 2022-2023 school year. He experienced some emotional distress. He had challenges and conflicts with peers.

REDACTED tried a lot of strategies to deal with Student’s anxiety including deep breathing, use of fidgets and taking breaks for different kind of sensory inputs. They collaborated with the occupational therapist on the different kinds of sensory inputs. He benefitted from talking to an adult, taking space from the classroom, and movement breaks.

Witness opined that Student benefited from counseling and support in the classroom setting.

Academically Student had challenges with attending class. They supported him with planned breaks and other strategies. Student had gaps in some of his foundational math skills. He received some additional math instruction from a learning specialist.

Witness met with him once a week individually for counseling but she very frequently supported him with problem solving with peers and de-escalation. She would check in on Student even when she was not providing formal counseling.

REDACTED used strategies that help support REDACTED with his anxiety or frustration. There were weekly meetings with his class to determine if they needed to make changes in terms of his plan and support. (Tr. 141)

Witness opined that a lack of motivation and his anxiety caused REDACTED to withdraw from the group. (Tr. 143) They worked on the groupings. They collaborated closely with the family in creating an incentive-based system. This helped motivate him once the plan was in place.

Witness opined that Student definitely made progress in his ability to verbally express himself. At beginning of the year, he was more physical. He became able to advocate for himself. His self-confidence and self-esteem improved. (Tr. 145)

Witness opined that Student benefited from a lot of adult support. He had various adults check in with him, listen to him, and offer him strategies and breaks. She opined that contributed to his success. She opined that Student thrived in counseling. (Tr. 148)

Witness opined that Student made a lot of progress in writing and math. (Tr. 150)

Student received occupational therapy and speech and language therapy. (Tr. 154)

Parent testified that Student made a lot of progress.

As discussed above, DOE continues to argue for the 2022-2023 school year that related services were insufficient and the placement was too restrictive.

I find REDACTED provided Student with the small class size, adult support, and strategies for him to progress in various areas. I find REDACTED was appropriate for the 2022-2023 school year.

I find Parent met their burden under prong two.

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

TRANSPORTATION

I find Student was entitled to limited time travel to and from Quad during the 2021-2022 and 2022-2023 school years.

In summary I find that DOE failed to provide a FAPE to Student for the 2021-2022 and 2022-2023 school years. I find REDACTED was appropriate for the 2021-2022 and 2022-2023 school years. I find equities support Parents. I find Parents are entitled to reimbursement for tuition for Student’s attendance during both the 2021-2022 and 2022-2023 school years.

I find no grounds to award reimbursement for any summer program. I find Student was entitled to limited time travel for the years at issue, 2021-2022 and 2022-2023 school years.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED for the 2021-2022 and 2022-2023 school year upon evidence of payment, contract and attendance.

Sharyn Finkelstein November 23, 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

PARENTS

A. Impartial hearing request 1/23/23 (4 pages)

B. Ten-day notice 6/16/21 (1 page)

C. Ten-day notice 8/28/21 (2 pages)

D. Ten-day notice 6/16/22 (2 pages)

E. Ten-day notice 8/19/22 (2 pages)

F. IEP 12/16/21 (34 pages)

G. Prior written notice 12/21/21 (9 pages)

H. Neuropsychological evaluation 2019 (22 pages)

I. Occupational therapy evaluation 7/22/20 (6 pages)

J Social cognitive assessment 7/22/20 6

K. REDACTED contract 2021-2022 (6 pages)

L. REDACTED contract 2022-2023 (6 pages)

M REDACTED program description undated 24

N. Class schedule 2021-2022 (1 page)

O. Class schedule 2022-2023 (2 pages)

P. 2021/2022 tuition affidavit 3/20/23 (1 page)

Q. 2022/2023 tuition affidavit 1/9/23 (1 page)

R REDACTED 2021 tuition

Affidavit 2/2/22 1

S REDACTED 2022 statement 8/3/2022 1

T. REDACTED contract Summer 2021 (2 pages)

U. REDACTED contract Summer 2022 (2 pages)

V. Evaluation Reports various dates (30 pages)

W. IEP 11/30/22 (3 pages)

X. Amended impartial hearing request 3/9/23 (6 pages)

Y. report card 6/23/22 Spring 2022 (18 pages)

Z. report card 6/21/23 Spring 2023 (15 pages)

DEPARTMENT OF EDUCATION

1. Due process complaint 1/25/23 (5 pages; DOE)

2. IEP 11/30/22 (37 pages; DOE)

3. IEP 2021 12/16/21 (15 pages; DOE)

4. Prior written notice 22022 6/27/22 (6 pages; DOE)

5. Prior written notice 2022 12/21/21 (4 pages; DOE)

6 Amended DPC 3/10/23 6

IHO

I Parent Closing 11/22/2023 13

II DOE Closing 11/16/2023 7