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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: March 14, 2011
May 18, 2011 Actual Record Close Date: September 16, 2011 Hearing Officer: Amy L. Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2011
Attorney — Student
Father — Student
Mother — Student
Psychologist (via telephone) — Student
Teacher, (via telephone) — Student
Headmaster, (via telephone) — Student
Teacher (via telephone) — Student
Chairperson Designee, — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2011
Attorney — Student
Parents
Parents
Teacher (via tlephone) — Student
Teacher (via telephone) — Student
Representative — DOE
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of . for the 2010-2011 school year. The hearing was convened at the written request of ’s parents (the “Parents”) by letter dated October 6, 2010. (Exhibit A) Hearings were held on March 14, 2011, and May 18, 2011, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.
BACKGROUND
is a boy with a history of along with . In April 2010, following a evaluation, Dr. diagnosed with , a , and a . She further described as exhibiting , with delays in and skills.
The DOE’s Committee on Special Education (“CSE”) met on May 14, 2010, and developed an Individualized Education Plan (“IEP”) for for the 2010-2011 school year, for the grade. (Exhibit B) The CSE classified as impaired and recommended placement in a general education class with the related services of and , and therapy. The DOE did not offer a placement to for the 2010-2011 school year. The DOE has conceded its failure to offer a Free Appropriate Public Education (“FAPE”) to for the 2010-2011 school year.
The Parents unilaterally placed at School (“ ”), which included its Program, for the 2010-2011 school year. The Parents notified the DOE of their placement by letter dated August 18, 2011. (Exhibit D)
The Parents are seeking an order that the DOE reimburse them for the tuition for , including its Jump Start Program, for the ten-month 2010-2011 school year.
POSITIONS OF THE PARTIES
THE PARENTS’ CASE
Dr. has had a full-time private practice as a licensed for eleven years. Her expertise is in neuropsychology and her practice is split between psychological testing and psychotherapy. (Tr. 12-13, 15) Dr. tested and evaluated on two dates in April 2010 and her findings were documented in her written “ Evaluation.” (Exhibit C) She explained that scored in percentile for l intelligence and is a . His and . Dr. provided examples of some of ’s areas of difficulty that are common with . He has issues with the of and . He does not understand the subtle aspects of . He also uses when . These issues would affect him . (Tr. 28) She diagnosed with , . She recommended that he attend a school with a , providing , and the . She discussed the since she has familiarity with the program’s ability to work with students with and needs similar to those of (Tr. 15-18) In addition to , its program is particularly good for students who need support. The program is particularly well-suited for since he requires a great deal of support with his and . (Tr. 19, 21)
., ’s mother, provided a history of ’s , noting that he services from early . Over the years, ’s issues included , , , and . and therapy from the . (Tr. 35-
36) In , ’s . He had no , had very and became very apparent. (Tr. 37, 40) In the spring of grade, in the 2009-2010 school year, a teacher suggested that the Parents have evaluated since she suspected that he might have . As a result, the Parents brought to Dr. in April 2010. (Tr. 39)
Ms. . explained that in May 2010, she received a call from the school telling her that a CSE meeting had been held that morning and seeking Ms. ’s approval. She denied the request since she and her husband wanted to participate as they had since was old. The counselor told Ms. . they could meet her in one hour. The only participants from the DOE were the the . Ms. . testified that she with the CSE’s recommendation which did not include any special education, especially in light of Dr. ’s recent evaluation, diagnoses, and recommendations. Ms. never received a school placement offer form the DOE. The Parents looked at public schools but was not accepted by any of them. When they looked at they felt it was appropriate and, at that time, they had not received any placement form the DOE. Therefore, they applied for admission and made a down payment. (Tr. 40-45) Ms. . confirmed that the Parents signed a contract with on June 22, 2010. (Tr. 45-46, Exhibit E) The Parents sent a letter to the CSE regarding their unilateral placement dated August 18, 2010. (Tr. 46, Exhibit D)
Ms. . stated that, as of her March 14, 2011, testimony, was doing very well at . He receives a lot of support. The program gives him the . He also receives . Also, the system, through which assignments are posted on-line, is very helpful to him. is doing very well . He was elected to serve as the grade representative in the student government and was invited to his first birthday party since grade. He has also invited . (Tr. 46-47)
is a New York State certified teacher in special education for all grades, as well as for English language arts for grades . She is a teacher in the program at Ms. explained the . Students who have learning issues are assigned to a . Those teachers are special education teachers with a caseload of approximately each. Ms. is ’s teacher. Ms. meets with her group of students from 8:00 a.m. to 8:30 a.m. every morning, and from 3:15 p.m. to 4:00 p.m. every afternoon. They work on and instruction. In the afternoon sessions, Ms. makes sure that the , they know what they need to do, and they get started. The students are required to send Ms. a message by at so she can prepare for the morning session. In addition to the , each student has two 42-minute individual sessions with her each week. In addition to the scheduled twice daily group sessions and twice weekly individual sessions, students can have additional time with her. She is available beginning at 7:30 a.m. each day, between the group session ending at 8:30 a.m. and homeroom, during lunch, and after the afternoon session ending at 4:00 p.m. Also, students can e-mail or text her at any time, including during the weekend. Ms. explained that she works on skills with the students and helps classroom teachers modify their curriculum if necessary. (Tr. 51-57, 74)
Ms. testified that has issues, as well as some problems skills. Ms. described a particularly specific example of an issue she has worked on with He carries , . He needs the with him . She worked with to develop a system for him to have the . She designated . He knows he can . Also, , she . She has seen progress in ’s . (Tr. 58-59, 69) Ms. also described how she works , by , . To help him , she has found the , and the “ , “ ,” helpful for him. In lieu of a foreign language class, has an extra English language class called the Fundamentals of Reading. (Tr. 60-64) Ms. confirmed that has made progress with his writing and comprehension. (Tr. 68, 69)
Ms. described as very . However, he ; including , of others and . She engages in as much as possible. He has made progress by . (Tr. 66-67) Ms. stated that ’s . She believes that for for the 2010-2011 school year. (Tr. 70)
is the and . She is also a . is in for the 2010-2011 school year. It is a fundamental class in lieu of a foreign language class, and in addition to his regular daily English class. also has a daily regular English class. There are grade students in Ms. ’s class and it meets daily. ’s include comprehension and writing. has . He , not the words. He benefits for him to . With writing, he has , and is and things. His . Ms. uses a very with the students, using a or outline and going through every together. As of her testimony on March 14, 2011, Ms class had which each took approximately one month to produce. The beginning of the year was spent mostly on reading. definitely improved from the writing of the also has , but she can . (Tr. 77-82, 86, 90, 94, 96) Ms. about at least twice a week. (Tr. 89) Ms. with ’s regular English teacher. (Tr. 96) Ms. testified that ’s , in the classroom and in his writing, and his . She stated that he has made “ .” (Tr. 87, 89)
is the , and with his . They founded the school in . The school serves . He explained the mission of the school, the small class sizes and the system. Students are according to their . For example, in the grade, there are tracks and tracks, with each track for a level. Students are placed in that is appropriate for them, so with work and improvement, they can reach the class. All for the same grade and subject are conducted at the same time. Therefore, a student can easily move to a higher track, when warranted, without the change affecting the rest of their schedule. Mr. explained the purpose of the who can benefit from the class. Although the school is a mainstream school, with , there is a substantial minority of students with issues, whether . Therefore, the program is modified to be inclusive, while providing support to those students in order for them to be successful. The program provides additional support to those students. To be admitted to the program, a student must have a evaluation. Of the , approximately program. The program is an additional component with an additional tuition cost. are certified in special education by New York State. The created at is successful due to the collaboration between the , classroom teachers and parents. The provide workshops for the rest of the faculty. The is another component of the collaborative system. On Fridays, with . There is also a section where the describes what has been accomplished that week along with any suggestions. (Tr. 99-106, 111, 117) Mr. explained how the help . The teachers are better able to keep the students and to ensure that the material is being understood. (Tr. 107)
is a math teacher and a . He teaches two grade pre-algebra and grade algebra. was in Mr. grade class for the 2010-2011 school year. It is the . There were approximately . Mr. testified that ’s greatest challenge is his memory. Mr. uses a lot of repetition. Mr. also works on , long-term projects which help ’s Mr. ’s , combined with ’s result in having somewhat in Mr. ’s class than in . Mr. has developed signs to communicate to that he is . is also very . Mr. implemented a system that is very consistent and explicit which has helped has a related to getting which affects his . Therefore, Mr. has to deal with ’s before he can teach him. He works with on : closing . Mr. has seen definite improvement with ’s , l . (Tr. 127-136, 141-142, 144) According to Mr. , definitely fits in within the class. Although he is a , “he’s , he’s sometimes he can be , but , and he’s friends.” (Tr. 163)
Mr. testified that he meets with very frequently outside of the classroom. Aside form ’s , Mr. seeks out most often. He comes to Mr. ’s room, sometimes . Sometimes, Ms. has to get out of Mr. ’s classroom because needs to spend time working on other areas as well. will also stop by Mr. ’s office when he is with Ms. in her office during the periods. Mr. has seen improvement in ’s ability to that he Mr. and to be in that regard. (Tr. 139-141)
Mr. testified that is an appropriate placement for He needs and who are available to him all the time. All program, are required to be available in the morning and the afternoon, before and after school. In addition, Mr. could not imagine without the program. (Tr. 149-150)
is an English teacher at . He was ’s English teacher in the 2010-2011 school year. He described ’s deficits; ; in terms of the and of his ideas, both and in ; elaborating on his ideas in writing; and , including . (Tr. 166-168) Mr. explained some of the methods he uses with , such as . For , Mr. uses , and . Since the class only has , Mr. has opportunities to work with one-on-one. (Tr. 169-176) Mr. Pennington described ’s progress with his and , from the beginning of the school year to the end, as “ .” He also described ’s progress in the areas of - , , and . (Tr. 170-171, 179, 187, 189)
THE DISTRICT’S CASE
The DOE concedes that it failed to offer a FAPE to for the 2010-2011 school year. (Tr. 8, 194)
As for the appropriateness of the Parents’ placement, the DOE’s position was expressed solely by its representative during the closing argument. The only argument presented by the DOE was that if the Parents prevail, tuition reimbursement should be limited to the Program only. (Tr. 195) The DOE did not offer any direct testimony to support its case or to rebut any of the testimony supporting the Parents’ case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
The DOE has conceded its failure to offer a FAPE to for the 2010-2011 school year. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.
The Parents have the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])
I find that the unilateral placement by the Parents met ’s special education needs for the 2010-2011 school year. It has been persuasively established by Dr. Ms. Mr. , Ms. , Mr. , Mr. and Ms. ., as the testimony cited herein supports, that placement at , and in its Program, was appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The entire program, including the classroom component and the program, was reasonably calculated to allow to make meaningful progress and to address ’s individual needs. In fact, made meaningful progress through his participation in the complete program. ’s small class environment provided opportunities for one-to-one attention, the tailoring of material and strategies to meet ’s individual needs, as well as additional modifications and accommodations. The subject classes are created, and students are placed, within their grade, using a system guided by performance levels and allowing for advancement based on progress. One as have warranting participation in the . Therefore, the faculty and staff at are trained and experienced educators of students with needs. In addition, the support of program provided with the highly individualized assistance he needs in all areas, including , , . All of the faculty and staff coordinated their efforts to support
The DOE offered no testimony or other evidence to challenge the appropriateness of the program.
I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.
Finally, the DOE does not offer any equitable consideration that would prevent an order in favor of the Parents. has always been educated in the DOE’s public schools and the Parents made efforts to identify a public school for the 2010-2011 school year to no avail. However, the April 2010 diagnosis of mild ’s and other issues, combined with the DOE’s failure to offer a placement to , led the Parents to their unilateral placement. The record reflects the Parents’ cooperation throughout the process. Ms. participated in the CSE meeting, although she was notified of the meeting on the same day. The Parents provided the CSE with an independent evaluation and timely notified the CSE of their unilateral placement following the DOE’s failure to offer a placement to The DOE’s argument that any tuition reimbursement awarded should be limited to the is rejected. Although the DOE’s representative did not explain the basis for its assertion, perhaps the DOE would maintain that ’s special education needs were addressed through the Jump Start program alone. The Parents cite an unappealed decision by the State Review Officer, Application of a Child with a Disability, Appeal No. 10-101, in which the SRO found that the entire York program, including the classroom component and the Program, was appropriate for the child in that matter and the Impartial Hearing Officer’s order of reimbursement was sustained. Similarly, the record herein establishes that the entire program was appropriate for I find that reimbursement must be limited to the cost of tuition for the School and the Program for the 2010-2011 school year for , and any additional costs for the classes he participated in. All other fees and costs not associated with the classes he participated in are not reimbursable. Application of a Child with a Disability, Appeal No. 10-101; Application of a Child with a Disability, Appeal No. 99-021. Dated: September 30, 2011
________________________________
AMY L. ITZLA, ESQ.
Impartial Hearing Officer
ALI:jj
PLEASE TAKE NOTICE
Within 35 days of the date 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 within 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.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Hearing Request, 10/6/10, 5 pp. B IEP, 5/14/10, 9 pp. C Evaluation, 4/2010, 14 pp. D Parent Lletter to Committee on Special Education, 8/18/10, 3 pp. E School Contract, 6/22/10, 4 pp. F Proof of Payment, 6/24/10, 1 p. G School Grades, 10/29/10, 1 p.