New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 8, 2010

December 16, 2010

January 12, 2011

January 28, 2011

February 9, 2011

March 15, 2011

March 31, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2010

for — District

for: of — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2010

for: of — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2011

for: of — District

Parents

for: Education — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2011

for: of — District

Principal: — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2011

for: of Education — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2011

for: of — District

Parents

: DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2011

for: of — District

-: -: - — Parents

On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding a parent’s request for prospective payment of tuition for the unilateral placement of her , , at the for and (“ ”) for the 2010-2011 school year.

The parent’s due process complaint, dated November 12, 2010, alleges, among other things, that was denied a Free and Appropriate Education (”FAPE”) by the New York City Department of Education (“District”) because the District’s Individualized Education Program (“IEP”) generated by the Committee on Special Education (“CSE”) on January 21, 2010, wherein the District proposed a class in a specialized school, was insufficient to meet special education needs. The parent also contends that the placement offered by the District for the 2010-2011 school year is not appropriate.

The District contends that was offered a FAPE for the 2010-2011 school year because a in a school would meet the needs and that placement at the “ ” of the School was appropriate.

is a -year old student who presently attends the grade at the . is classified as a student with a . has attended the for the last five years at the District’s expense either through a decision of an Impartial Hearing Officer or pursuant to a Stipulation of Settlement.

presents with significant receptive and and from -. is easily in the classroom and requires constant redirection

On January 10, 2010, the District’s CSE generated an IEP that recommended a 12 month program with placement in a class in a specialized school with related services of and and

On June 8, 2010, the District sent a Final Notice of Recommendation to the parent that offered placement at @ the School located at , , . Sometime in early June 2010, the parent, along with of the , visited the school and were provided a tour by the , .

By letter, dated June 14, 2010, the parent advised the District that she was rejecting the proposed program at the School because the proposed program could not meet needs.

By letter, dated August 20, 2010, the parent again advised that District that she was rejecting the proposed program at the School the because the proposed could not meet needs.

On November 12, 2010, the parent filed the within due process complaint (referenced above).

On or about December 6, 2010, the District sent second FNR to the parent. This FNR indicated that the proposed placement was located at , , .

Congress enacted the IDEA to promote the education of children with disabilities, "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and] . . . to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1); see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985). A free appropriate public education "must include 'special education and related services' tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).

The key element of the IDEA is the development of an IEP for each handicapped child, which includes "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Burlington, 471 U.S. at 368. The IEP is collaboratively developed by the parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311 (1988). New York has set forth regulations to implement the goals of the IDEA, which "appear to track the IDEA closely." Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 454 (S.D.N.Y. 2005); see N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1 et seq. "'In developing a particular child's IEP, a [Committee on Special Education] is required to consider four factors:(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) or needs." Walczak, 142 F.3d at 123 (citing N.Y. Comp. Codes

R. & Regs. tit. 8 § 200.1(kk)(2)(i) (1997)).

If a state fails in its obligation to provide a free appropriate public education to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state. Burlington, 471 U.S. at 370; M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000). In determining whether parents are entitled to reimbursement, the Supreme Court has established a two pronged test: (1) was the IEP proposed by the school district inappropriate; (2) was the private placement appropriate to the child's needs. See Burlington, 471 U.S. at 370; see also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13(1993). Moreover, because the authority to grant reimbursement is discretionary, "equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief." Burlington, 471 U.S. at 374; M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); 20 U.S.C. § 1412(a)(10)(C)(iii)(III).

In this case, the record shows that the District initially offered the parent a placement with at the School located at , , . The parent testified that she visited the school with Mr. of the and was given a tour by the school’s , . By letter dated, June 14, 2010., the parent rejected the District’s proposed program because she believed that the class at the school could not meet the needs of , among other reasons. The District did not respond to the parent’s notice of rejection, which included notice to the District that the parent would be placing at the for the 2010-2011 school year. The parent then sent a second letter, dated August 20, 2010, advising the District again that she continued to reject the District’s program at the and provided a second notice to the District that the parent was placing at the . The District again failed to respond.

On December 6, 2010, the District sent the parent a second FNR recommending a class located at , , . At the hearing, we learned that the second FNR was for the , which the District claimed was an “off site” location for the School (recommended in the first FNR). The District presented the testimony of , the principal of the school, who testified that the school was under the administration of the School,

The parent testified that the during the tour of the school she was not advised that there were any “off site” locations relevant to the District’s proposed placement and that she did not learn of the until December 6, 2010, long after the school year began and after the parent filed her due process complaint.

At the hearing the District defended the program at the school, which was offered in the FNR on December 6, 2010, and did not present any evidence relating to the program at the School. The District asserts that the program is actually part of the program and that placement is an administrative decision reserved for the District. The District also asserts that parent’s have no general right to visit a recommended placement.

Under these facts I find the District’s position is unpersuasive. Assuming arguendo, that the District’s position is correct, the record here shows that in June 2010 the parent was advised that the proposed placement was at the School. The record also shows that the parent was never advised that that School included an “off site” location at the until December 2010. The record also shows that during the summer of 2010, the parent advised the District, in writing, on two separation occasions that she was rejecting the proposed placement at the School. The District did not respond to any of the parent letters regarding her rejection of the program at the school, but did send a second FNR in December 2010 that listed a class at a different address. The District’s position that the school is an offsite facility under the administration of the School and, as such, falls under the District’s right to make an administrative decision with respect to placement might have been persuasive had the District provided this information to the parent prior to the beginning of the school year. Additionally, the District’s issuance of a second FNR that identifies a class at a difference address, which was not provided until after the parent filed her due process request, does not support the District’s position that initial FNR was adequate notice of placement. Accordingly, I find that based on these facts, the District failed to offer a FAPE for the 2010-2011 school year.

Further, the District’s reliance on SRO Appeal No. 09-063 is misplaced. In that case, the SRO found that the June 5, 2008 IEP offered a program to the student along the continuum in the class and that the IEP indicated that the would take place at a specific district school (Site 1). "However, the district's testified that the location of the class would have been either the district school where it had been located previously (Site 1), or another specific school within the district (Site 2). He further testified that although the location of the program would not have been definite until the end of the summer, the program, the of the class, and the students who comprised the class would remain the same, only the school that the program was housed in would have changed (id.). When the 2008-09 school year began, the class was located at Site 1, the same district school where it had been located for the previous 11 years and this school was the one listed on the student's IEP (Page 13).” None of those facts exist in this case. As indicated above, the District never advised that the placement location was, or even could be, different than the notice she received in June 2010, until the District sent a second FNR in December 2010.

Also, SRO Appeal No. 10-094 is unpersuasive because in that case the District notified the parents of the specific location of the student's proposed program and summarized the recommendations made by [sic] the CSE. The parents in SRO No. 10094 did not view proposed class prior to the beginning of the school year because they were on vacation until the beginning of September. And in December of that school year, when parent did visit and actually toured the subject school, the particular class was not available for the parent to view. These facts are not analogous to As indicated above, in this case, the District did not tell the parent’s of the “real” placement location until December 2010. Based on these facts, I find that the District did impede the student’s right to a FAPE and significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE 20 U.S.C. Section 1415(f)(3)(E)(ii). Appropriateness of the Parent’s Placement:

The record shows that at , receives small group instruction in reading and math and to throughout the school day. also receives and and is enrolled in a langue skills class twice a week with a in a group of students. Although academic progress has been slow for , the record shows that during her time at , has improved her reading skills from grade level to the grade level. has also improved in math from a level to - grade level. Finally, the has made progress in the social/emotional domain in that is participating more actively in class and in group activities. Based on these facts, I find that the is appropriate for . Equities:

Nothing in the record suggests that the parent failed to cooperate with the CSE. Although the District contends that the parent’s should be denied the requested relief because the parent failed to make suggestions to the CSE as to what she believed was an appropriate program for , the parent advised the District in writing of her objections to the IEP on June 14, 2010 and August 2010, and District did nothing until after parent filed a due process complaint in November 2010. As such, I find that the “equities” do not require an Order denying the relief requested by the parent. Prospective Payment of Tuition:

The parent testified that she is on leave and had to apply for (Tr. 358). As such, the parent does not have the to pay the tuition at . Accordingly, based on my findings above, and the lack of the financial resource of the parent, I find that the parent is entitled to prospective payment of tuition for the placement of at the for the 2010-2011 school year.

ORDERED

The Department of Education shall pay the entire cost of tuition for at the for and for the school year 2010-2011 within 30 days upon proof of cost for same. Dated: May 9, 2011

Impartial Hearing Officer

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 EXHIBITS

1. IEP 1/21/10 3 pages

2. Complaint 11/12/10 4 pages

3. Response 11/19/10 4 pages

4. IEP Minutes 1/21/10 2 pages

5. FNR 6/8/10 1 page

6. FNR 12/6/10 3 pages

7. IEP 3/11/09 26 pages

8. Classroom Observation 11/4/01 2 pages

9. Progress Report 11/09 15 pages

10. . Evaluation 8/18/05 3 pages

11. Report Fall 2007 5 pages

12. Word Test 8/20/07 4 pages

13. Evaluation 9/07 4 pages

DEPARTMENT OF EDUCATION EXHIBITS

A. Description undated 4 pages

B. Travel Training Curriculum 09-10 8 pages

C. Progress Report 2010-2011 19 pages

D. Progress Report 2009-2010 16 pages

E. Eval. 9/07 9 pages

F. Eval. 7/07 7 pages

G. Transition Planning Document undated 2 pages

H. 10-Day Notice 6/14/10

I. 10-Day Notice 8/20/10 1 page

J. Enrollment Contract Summer 2010 and 2010-2011 4 pages

K. Parent’s Financial Documents undated 4 pages

L. Class Schedule Grade undated 1 page

M. Access to Independent Program undated 5 pages

N. Description of undated 3 pages