New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number:

NYS Case Identifier Number: N/A

Student’s Name:

Date of Birth:

District: 3

Hearing Requested by: Parent

Date of Hearing: 3-11-11

4-28-11

5-6-11

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 11, 2011

Attorney — Student

Parents

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 28, 2011

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 6, 2011

Attorney — Student

Parents

Parents

Teacher, School — Student

Teacher, School — Student

Headmaster, School — Student

District Representative — DOE

— DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is a -year-old child who is classified as having a disability and recommended for a general education program with related services. The parents, and ( , , parents or parent), disputed the recommendation as denying a free appropriate public education (FAPE). They placed unilaterally at School ( or ), the school she had been attending, and brought the instant hearing seeking reimbursement for tuition at the school as well as the cost of evaluations (which request was later withdrawn). The parents also asked for a pendency order directing reimbursement of tuition at .

The hearing was convened on March 11, April 28, and May 6, 2011. A pendency decision was issued on March 29, 2011 directing reimbursement of tuition for the child at for the 2010-2011 school year retroactive to September 4, 2010. An amendment to that order was issued on May 2, 2011, directing reimbursement retroactive to October 28, 2010. Upon the joint request of the parties, the decision due date was extended to June 8, 2011.

DISTRICT CASE

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case (as further discussed below). Prong 1 of that determination places the burden on the DOE to show that the program offered was appropriate for the child.

In this case, the district representative conceded Prong 1. No witnesses appeared for the district.

PARENT CASE

The parent, who initially asked for reimbursement for tuition and evaluations, withdrew the request for reimbursement for evaluations, leaving only the demand for tuition reimbursement. Tr. 27

th

, the parent, testified that is , currently in the grade. She attended St.

th ’s School from through grade, where she was in a class of 24 to 26 students.

rd She left because of her and disability, which was first noticed in the grade, when her teachers reported that she was having and issues, and problems with skills and executing and . Tr. 30-31 The parents had a and processing evaluation done, which revealed deficits with her visual skills, expressive and receptive skills, solving and skills. Tr. 32 She was first th classified as and impaired in the grade, and enrolled at the School, which she th th attended from through grade. Her experience there was positive, and she began gaining confidence as the classes were much smaller and the teachers were using education techniques to meet her needs. Tr. 33-34 was enrolled at in the th grade, in September 2008. She also underwent a testing, specifically a evaluation and an , and evaluation, which found that she was making progress but still had needs. Tr. 35-36 explained that the parents chose because it had small classes and a homogenous grouping of students, and the program offered by the school, and it was an integrated inclusion school. She said that the small classes were important, as were the fact that the school used education techniques throughout the day, which she said was very important for . She said that the teachers work with the classroom teachers, and see the students twice daily and twice a week on an individual basis. She cited techniques like , , of materials, breaking down materials, explaining that it gives her clarification if the material is reinforced and , as a better way of understanding the material and absorbing it. has told her that is what happens in the classroom. Tr. 36-38, 41-42 She also described the school’s , an online tool uses to keep on top of her work that shows her progress and helps the parents to follow her progress. Tr. 38 She receives and instruction at All in One Spot/ Technology, under related service authorizations issued by the DOE. Tr. 40-41 stated that has definitely progressed in the 2010-2011 school year. She is a more comfortable with and her work, and is working a little more independently. She said she is doing well, as evidence by her grades, and attributed it to the school both the daily use of techniques she has learned from the classroom teachers and her increased comfort level in asking questions and getting the clarification she needs to absorb the material. Tr. 50; Ex. J She stated that she is not having as hard a time with inferencing as she did in the past. She is using the techniques she has learned in English and in textbook materials in history and science. Tr. 55-56

She testified that she attended the CSE review for the 2010-2011 school year. She received notice of ’s proposed placement at School at the end of June, about June 28 or 29, 2010. Tr. 42-43 She contacted the school and was told she was unable to see the program; she was advised to call back in September. She then forwarded a letter dated July 1, 2010 to at the CSE, and followed up with a letter to on August 19, 2010. She also called the school again in September, and was told there was no program available for at all. Tr. 45-47; Exs. E, F, H also testified that the parents decided to enroll at after receiving the placement letter and trying to contact School. She said the decision was made sometime at the end of June 2010. Tr. 100-101 She conceded that she signed the contract for the 20102011 school year on January 20, 2010, explaining that she did so to have the school hold a seat for . Tr. 102 She made a deposit of $5,000 in February 2010 and the first payment of tuition, about $8,000 in March 2010. Tr. 102-103; Exs. , The other payments were made after she received the placement letter and had no positive results from , Tr. 104; Ex. stated that she didn’t know if the earlier payments would have been refundable, but she would have tried to get a refund if was in an appropriate program in the public schools. She knew that the $5,000 deposit and $8,000 were not refundable when they were paid. She stated they were willing to take the gamble of losing the deposit, rather than not having a placement for and losing full tuition of $50,000. She denied that the family had decided to send the child to in January or March, before the IEP meeting was held. Tr. 106-107 , a Spanish teacher at , testified that had been her student since September 2010. There were 14 student sin the class, five or six with the same disability as . She described the girl as having deficits in the areas of and , as well as having an processing disorder, which causes her to become easily distracted. Tr. 83-85 Ms. described techniques used with in the classroom, including visual aids, flashcards, and an overhead projector to help with her visual difficulties. Tr. 86 To a ’s problems, Ms. employed a lot of repetition, using it in writing, with oral repetition of words and sentences. She also cited the use of cues, keeping engaged and her in class, and scaffolding to help her regain focus. Tr. 87-89 Ms. stated that she communicates regularly with , ’s teacher a . Tr. 90 She stated that had made tremendous progress since the beginning of the year. Tr. 88 She had difficulty with , skills, and in the fall, and has improved in all three areas. Her grades have “jumped” to the mid and high s. She stated that has made significant progress in each quarter. Tr. 91 She has seen improvement in sentence structure, in grammatic use of verb form, and a better sense of - and confidence using the , Tr. 92 testified that she is a teacher at . has been her student for three years; she meets with her twice a week. Tr. 110-112 Ms. described as having issues, expressive issues, processing issues, and some organizational issues. It is difficult for to understand directions that are given verbally. Tr. 112-113 Ms. explained that she uses different active strategies, noting highlighting, annotating, re- , and summarizing. Tr. 113-115 She described the five-step writing process called “ ,” which slows down as she proceeds through the writing process. Tr. 116-117 She also described working with even before an assignment, to clarify her understanding of the assignment, in order to a some of her processing issues, Tr. 117-118 uses a graphic organizer; Ms. reminds her to write down instructions and whatever she hears so they can discuss it later. Tr. 119-120 is in classes with between 11 and 16 children. Ms. stated that because of their small size, she gets more attention. Tr. 124-125 She stated that is much more independent now than when she began at the school three years before, citing a big difference now in the grade when the work is harder. She is able to apply the “ ” approach to classes other than English, such as history, using it to write history papers. Tr. 122 She has learned to use her planner to complete larger projects. Tr. 122-123 Ms. described some of the strategies used by ’s math teacher, citing the “overarching” strategy of approach, which is absolutely essential for , and giving as example the use of the SMART board to display shapes in different ways. She stated that is benefiting from the approach. Tr. 126-130 Ms. stated that progressed academically in the past year, using and embracing the strategies she has learned, and receiving approximately an 88 average. She stated that is appropriate placement for . Tr. 131-133

, Headmaster at , described the origins of the school as a traditional school, which initially put a tracking program in place, designed to look at students’ relative strengths and weaknesses and place them appropriately, providing instruction to accommodate different skills sets. The school later began to implement strategies that would be effective with children with disabilities. At the present time, 110 of the school’s 354 students, or about one-third of the students, are in the program . Tr. 138-141 He described the general strategies and specific accommodations at , starting with organizational issues that are a through the program, which provides an organization tool for the children as well as giving the parents a snapshot of their children’s progress. Tr. 142 The classes incorporate strategies such as the material, repetition, , and checking that the students understand the material before they move on. Tr. 143 He also describe the teacher as teaching a remedial class of 10 to 12 students, and serving as a mentor, a cheerleader, and an advocate, as well as the tutor for the child. Tr. 144 He cited the continual interaction between the teacher and the child’s classroom teachers, and the use of the report, as providing the interaction that helps the classroom teachers in inclusion classes develop and learn how to handle children who have issues. Tr. 147 He stated that he knew quite well, stating that she came from ,a education school, and she is successful at , which is an inclusion program in a mainstream school. Tr. 148

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (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 education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case, the district conceded that it had not provided FAPE to .

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of the Burlington, the parents bear the burden of proving the appropriateness of the services sought for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No.

99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that and its program offered an educational program designed to meet ’s education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I note Ms. ’s testimony concerning the various strategies she employs in the program aimed at ’s difficulties and her processing deficits, particularly the active strategies, the “ ” writing process, previewing assignments with , and using the graphic organizer. I also note the “jump” notes by two witnesses in ’s grades this year. A itionally, Ms. ’s testimony about the Spanish class and Ms. ’s testimony about ’s math class confirmed the use of and other instructional strategies employed in the general school curriculum and expressly designed to a ’s disability. The parent also gave comprehensive testimony about the benefits of the school to , as well as her progress there. I note in particular her repeated reference to the school’s small classes as important to , as were the various education “techniques” she cited, used by the and classroom teachers, including , , of materials, breaking down materials to help understanding the material. Mr. ’s testimony supported the use of those techniques and their importance of children with disabilities. The child’s report card evidenced her progress, as did the testimony of the teachers and parent that has definitely progressed in the 2010-2011 school year, improved in and in doing her work with more confidence.

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of and the program for .

ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

The district disputed the parents’ claim that they intended to send the child to the public school, citing the child’s three years of attendance at and the early payment of $13,000 to the school, months in advance of the IEP meeting. I note, however, the district’s total failure to provide a recommended placement for , and the parent’s argument that the DOE’s concession that it had not provided a FAPE to operated to estop it from claiming that the parents were not entitled to an award because of equitable considerations. The decision of the district court cited by the parents expressly noted the absence of any case in which equitable considerations favored a school district that failed to offer a disabled child a school placement prior to the commencement of the school year. N.R. ex rel. T.R. v. Dept. of Educ., No. 07 Cv. 9648 (BSJ), 2009 U.S. Dist. LEXIS 27273 (March 31, 2009). I credit the parent’s claim that she would have tried to get a refund had the DOE offered an appropriate placement for . The parent’s correspondence to district officials outlined their concerns (Exs. E, F, H), and put the district on notice in a timely manner; that the DOE did not respond cannot be held against the parent.

Accordingly, I find that equitable considerations warrant the reimbursement of the full tuition payment and will order the parents’ request for $34,800 for tuition, and $16,250 for program. I discount the other fees, student activity fees, bookstore, and late fees as not applicable to this order. Ex. L

ORDER

Upon submission of proper proof of payment, the DOE shall reimburse the parents for ’s tuition at School for the 2010-2011 school year, including tuition for the program, for a total not to exceed $50,050.

IT IS SO ORDERED. Dated: June 7, 2011

_____________________________

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 Letter, , 12/23/08, 1 page

2 Letter, , 5/12/09, 1 page

3 Letter, , 3/11/10, 1 page

4 Appointment letter, , 3/31/10, 2 pages

5 Letter, , 4/5/10, 1 page

6 E-mails and DOE Case history, , 4-7-11, 4-15-11, 5 pages

PARENT EXHIBITS

A and processing evaluation, 1/23/09, 11 pages

B reevaluation, 5/1/10, 7 pages

C IEP, 6/16/10, 18 pages

D FNR, 6/28/10, 1 page

E Letter, , 7/1/10, 1 page

F Letter, , 8/19/10, 1 page

G Impartial Hearing request, 9/4/10, 6 pages

H Letter, , 9/16/10, 1 page

I Due process response, DOE, 11/5/10, 4 pages

J Report card, Academic Report, 2010-2011, 1/6/11, 1 page

K IHO decision, 9/3/10, 15 pages

L Student Enrollment Contract, 1/20/10, 3 pages

M Payment documents, 2/1/10-12/1/10, 6 pages

N Reports Card, 3rd quarter, 4/7/11, 1 page

IMPARTIAL HEARING OFFICER EXHIBITS

I Application of a Student With A Disability, Appeal No. 10-101, 12/19/10, 22 pages

II E-mail, , 3-23-11, 2 pages