New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 24, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 17, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Director of Research REDACTED

For the Department of Education:

REDACTED Attorney

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 6, 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 2021-2022 school year.

The parties moved to extend the compliance date on several occasions for witness availability and preparation of hearing. 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 12, 2023.

BACKGROUND

Student has been diagnosed with autism. He has been diagnosed with depression and anxiety.

Student experienced trauma in childhood and as a result, he had trust and social issues. (Tr. 69) Student would act out and was provocative. (Tr. 70)

Student was diagnosed with Post Traumatic Stress Disorder. (Tr. 78)

After nursery school Student attended kindergarten in New York City. He was asked to leave because of behavioral issues. (Tr. 74)

Student attended several schools including but not limited to REDACTED. Each school eventually asked Student to leave. (Tr. 74-78)

Student was hospitalized a number of times in psychiatric hospitals. (Tr. 75)

Parent opined that the prior programs did not focus on academics.

Parent enrolled Student in REDACTED (REDACTED) a residential program for the 2021-2022 school year. (Exhibit C)

Student was asked to leave sometime in January. (Exhibit H)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. REDACTED appeared on one of the hearing dates. They submitted evidence (Exhibits 1-6) but did not produce any witnesses.

PARENT’S CASE

The parent was represented by their attorney REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2021-2022 school year. They maintain that the program at REDACTED was appropriate. It is their position that equities favor Parent. It is their position that Parent is entitled to tuition reimbursement for Student’s attendance at REDACTEDs during the 2021-2022 school year. (Exhibit A) They submitted documents in support of their claim (Exhibits A- ). Parent testified and the Director at REDACTED provided testimony in support of Parent’s position.

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 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. DOE recommended a day school in New York City. They recommended a 12:1:1 classroom in a District 75 school. Parent explained to DOE that it would have been a really big setback. Parent explained that Student was still having behavioral issues. She later sent a letter expressing her concerns. (Exhibit B) I find no evidence of why DOE felt that Student was able to transition from a residential setting to a day public school. 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, Director of education provided testimony. REDACTED is a residential school. All students are diagnosed on the autism spectrum with co-occurring conditionals with complex profiles. (Tr. 35)

A typical class size is eight students at a 2:1 ratio. Students are grouped based on chronological age and developmental level. Teachers receive direct supervision. All of the staff have training. (Tr. 36)

Student had four students in his class with two staff members. Student required a small class size and low student to staff ratio. He required built in breaks throughout the class for him to take time to regulate.

They provide related services, mental health services, psychiatry BCBA, occupational therapy, physical therapy, speech and language therapy and music therapy. All the therapists are certified in the State of New York.

At the start of the school year Student presented as very bright and capable academically. He struggled significantly with mental health coping skills and regulations.

Student engaged in verbal and physical de-escalation and property destruction. He engaged in avoidance behavior. Witness explained that if Student was dysregulated. he was unable to attend class or engage with others. (Tr. 39)

Student’s school day was structured very specifically for him. He had electives right after academic classes so there were short periods of time that he was required to focus. He received visual and verbal supports throughout the class.

Academic progress was monitored on a quarterly basis using data sheets that were prepared by teachers and staff.

Witness opined that Student required the consistency and wrap around care twentyfour hours both educationally and therapeutically. (Tr. 41)

Student was on a floor with six students of similar chronological age and developmental level. He had his own bedroom.

Student had similar goals during his residential hours to his educational day. He worked on coping skills, regulation and appropriate engagement with peers and staff. These were the two areas where he struggled. (Tr. 40-41)

Student had an individual support plan. There were a number of coping skills to help avoid verbal and physical expression. (Tr. 42)

They had a crisis de-escalation strategy in case he became fully dysregulated. They engaged in crisis prevention institute strategies. (Tr. 44)

There was a heavy focus on relationship building and trust. Witness opined that Student made progress with his ability to cope and remain more regulated throughout the time he attended REDACTED. He was better able to cope in times of stress and built nice relationships with teachers and staff. (Tr. 44)

Student received one on one therapeutic sessions once a week for thirty minutes. If he required an extra session because he was dysregulated it was available. Student did not benefit from group. They focused heavily on a one -on-one sessions with him therapeutically so he could make progress. (Tr. 44-45)

Student had a consult from speech and language therapy as well as occupational therapy. They developed specific goals in his therapeutic sessions. Data was kept and reviewed to see if goals had to be changed based on date. They worked on building self -esteem. She opined Student made progress. (Tr. 46)

She opined that the small class they provided Student was imperative for his programming with low student to staff ratio. He required and they provided built-in breaks throughout the class for him to have time to regulate. His schedule was structured and they provided him with visual and verbal supports. (Tr. 49)

Witness explained that toward the end of December they determined that Student required a higher level of mental health support. He needed more psychiatric support. Program was more focused towards autism spectrum. His profile changed and they felt he required a different level of care. (Tr. 50-51)

Witness opined that Student did make progress. At the start of the year, he did not attend at all and had extreme moments of dysregulation. She described major change in his ability to engage in academic classes at his grade level. He arrived with an inability to form trusting relationships with students and staff. He was able to build relationships.

The summer model is elective based. Teachers were physically present in class.

Speech and language therapy and occupational therapy were provided as push in and mental health was both during the day. Student usually required a check in with his mental health clinician two to three times weekly. (Tr. 56)

On the residential floor there were three staff until ten PM and overnight there were two staff on his floor. (Tr. 58)

Parent explained that she chose REDACTEDs because it was only an hour distance from home. Student was able to spend time with family which he had not done for years. There was a lot of interaction with students. She described it as a “good transitional place for him”. Prior to his being at REDACTED Student did not have learning in a classroom.

Parent described progress he made. She described the benefit of his being in a classroom. It gave him confidence. She described the benefit of individual therapy. (Tr. 89)

I find evidence establishes that REDACTED was appropriate for the summer portion and a portion of the ten -month school year. Parent’s Witness acknowledged that the school was no longer appropriate for Student and could not provide him with the supports that he required. I find School was appropriate for the summer and a portion of the ten -month program. I find that at some point REDACTED was no longer appropriate. I find that Parent met their burden for a portion of the school year.

With respect to prong three, I find no evidence that Parent did not do anything to thwart the process. DOE did not make any equitable arguments. (Tr. 20) I find nothing that would prevent Parent from relief.

CONTRACT

Parent signed a contract for the 12- month school year which contained different clauses for modifications or reduction. There is no evidence that contract was amended for Student. Parent paid the entire tuition. (Exhibits J and KI find DOE is not responsible to fund tuition for a period of time when Student did not attend. As discussed above, I find REDACTED, as acknowledged by Witness was no longer appropriate for Student after a certain period.

The tuition for 12- month school year is $281, 614. Student did not attend for four months. I find DOE is responsible to fund $187.743.

ORDER

The DOE shall reimburse Parent for tuition paid to REDACTED School for the 2021-2022 school year from summer portion in the amount of $187.743. ^[1]

Sharyn Finkelstein September 22, 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

PARENT

A Due process complaint 4/4/23

4 pages

B. Parent letter with confirmation receipt 6/18/21 (2 pages)

C. REDACTED enrollment contract for 21/22 4/3/2021 (6 pages)

D. 2021/2022 summary and fall schedule n/a (1 page)

` E Confidential psychological evaluation 5/3/2021 37

F. Progress Report 8/13/21 (4 pages)

G 2021/2022 individualized transdisciplinary 2021-2022

Education plan 24

H. Attendance Record 2021-2022 (5 pages)

I Program Description 2021-2022 1

J. Affidavit of Payment 5/25/2022 (1 page)

K. Proof of Payment various dates (14 pages)

L Loan agreement 8/30/2023 2

DEPARTMENT OF EDUCATION

1. IEP 8/12/20 (20 pages; DOE)

2. prior written notice package 8/16/21 (4 pages; DOE)

3. School location letter 4/16/21 (2 pages; DOE)

4. Student invitation to IEP meeting 8/5/20 (1 page; DOE)

5. IEP 7/21/21 July 2021 (24 pages; DOE)

6. prior written notice package 8/26/21 (4 pages; DOE)

Footnotes

[1] If REDACTED reduces tuition to a lower amount and reimburses Parent, DOE shall only be responsible for amount Parent paid up to $187.743.