New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: February 10, 2011

April 6, 2011 Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 10, 2011

Attorney — Student

Parents

(via telephone) — Student

(via telephone) — Student

Chairperson Designee, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 6, 2011

Attorney — Student

Parents

(via telephone) — Student

(via telephone) — Student

Chairperson Designee, CSE — DOE

On November 24, 2010, I was designated by the New City Department of — DOE

Education (DOE) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New in the matter of (hereinafter ) and the parent through her attorney initiated this hearing on November 23, 20, 2010. On December 22, 2010 I scheduled this hearing for February 10, 2011 and the hearing continued and concluded on April 6, 2011. The hearing was requested by the parent through her attorney to challenge the November 22, 2010 review and the recommendation of the Committee on Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the ( ) for the 2010-2011 school year. The parent alleged that the DOE failed to provide a free and appropriate public education (FAPE) for the 2010-2011 school year and seeks reimbursement of tuition for . is a non-New State approved program. has a small class program with a high teacher to student ratio. also has a Program for its education students that meets twice a day. The parent seeks reimbursement for the tuition at in the amount of $38, 291.90 (Tr. 39; Exh. E at 1) The parent further seeks reimbursement for the Program in the amount of $9,750 (Exhs. E at 3). Lastly, the parent seeks reimbursement for the cost of the private evaluation in the amount of $4,500 (Exh. P,Q). I note the parent’s proof of payment for (Exhs. R, S & T) total $10, 000, but the amount invoiced for the is $9,750; however, if the parent is the prevailing party I am only able to reimburse the amount charged.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

is a who is currently in the grade at . He was classified on a CSE review conducted on November 22, 2010. was an infant from when he was months old. (Exh. N at 1) He was the only child of parents who separated when he was . (Exh. N at 2) He attended from through grade. (Tr. at 15)

was evaluated when he was years old in grade. On September 16, 21 and 23, 2005 a -educational evaluation was conducted by Dr. who found that had a chronic low condition for which he took . (Exh. L at 7) Dr. noted that his and grade teachers noted that lost attention during group instruction or discussion. (Exh. L at 2) Dr. described ’s “in new situations or those he perceives as unsafe.” (Id.) Dr. found that ’s general cognitive ability as assessed by the Intelligence Scale for Children–Fourth Edition, ( ISC-IV) was in the average range and with a comprehension score of , in the 32nd percentile, a reasoning score of , in the 66th percentile in the average range, a score of , in the 18th percentile in the average range, a processing speed score of , in the 16th percentile, in the average range and his yielded a full I.Q. score of . (Exh. L at 3) Dr. found that scored in the average range in reasoning and problem solving, but his and skills were compromised. She noted that his and also appeared compromised. (Id.) She used the Clinical Evaluation of Function-Fourth Edition (CELF-4) and found evidence of and receptive disabilities. (Exh. L at 3) She found that evidenced deficits in word and comprehension. (Exh. L at 4) She assessed his academic abilities using the - Tests of Achievement Test ( ) and found average skills in , and . (Exh. L at 5) She diagnosed with a mixed-receptive-expressive disorder and recommended a classes and large teacher to student ratio. (Exh. L at 8)

In grade attended public school at Manhattan East and then transferred to public school at for and grade. (Exh. N at 2) In grade for the 2009-2010 school year, he attended a private school at ,( ) but struggled academically and socially. He began treatment for his with a Dr. and withdrew from and enrolled in another private school with a very and individualized program in the spring of 2010 to complete grade at the

. (Id.)

was evaluated when he was years old in grade. On June 21, 22, 23, and 24, 2010 a -educational evaluation was conducted by Dr. who reported that was about the testing and his and varied during the testing. (Id.) Dr. also administered the ISCIV and found that ’s score was and non subtests and he struggled in the Working and Processing tasks. (Exh. N at 3) He used the to assess ’s , and abilities and found he scored in the average range. (Exh. N at 5) He reported that received a lower score on and demonstrated weakness in his ability to information. (Exh. N at 6) Dr. diagnosed with Disorder Not Otherwise Specified and recommended a small and structured inclusion environment with instructions broken down, previewing lessons, cues, additional time on tests. (Exh. N at 11)

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , CSE District 10 representative who conceded that the District failed to provide a FAPE for and conceded the first prong of the test for reimbursement. (Tr. at 7)

THE PARENT’S CASE

The Parent’s case was presented in the testimony of the parent, , Head Master of , , Teacher, , History Teacher and , Science Teacher.

Ms. . testified that she was ’s adoptive mother when he was months. (Tr. at 11) She noted that had been having educational difficulties since the end of grade and he struggled through grade when CSE classified him with disabilities. (Tr. at 14) She stated that when started grade at , but he transferred to a private school with small classes at , but continued to struggle and transferred to , another private school the recommended that attend to complete his grade. (Tr. at 17) She stated that because struggled at she brought him to Dr. , who confirmed the continued to have a problem. She recalled that she investigated private schools and determined that was tailored for ’s particular problem. She explained that presented material ly in lists which fit ’s needs. She noted that the teachers at broke down the material into very small chunks. (Tr. at 21) She explained that she wanted to enroll into the program, but there were no openings until the end of December 2010. (Tr. at 22) She noted that was being treated by Dr. ,a once a week for his counseling needs. (Tr. at 23) She opined that ’s was lessoned. (Tr. at 24) She recalled that she attended the CSE meeting on November 22, 2010 and she provided the team with Dr. ’s report and Dr. ’s report. (Tr. at

27) She further recalled that she received a placement letter for the and Imagination sometime in the end of December 2010. She related that after visiting the proposed placement she wrote to the chair of CSE alerting him that the curriculum was not structured for the techniques needed for children with and processing so she declined the proposed placement and noted that she would keep at and would “seek reimbursement of tuition to at the public expense pursuant to 20 U.S.C. 1412(a)(10)(C)(iii)(I)(SA).” (Exh K; Tr. at 29) She explained that was an appropriate placement because progressed academically and moved from the high 70s to the high 80 in several of his subjects. (Tr. at 32) She further explained that the program began in January 2011 and provided intense instruction in a very small setting. She opined that his ability to learn progressed at as well noted he progressed socially. She stated that as a boy he felt different, but at as a result of the specific techniques incorporated into the school he was accepted as part of the school. (Tr. at 35)

, Head Master of for 42 years testified that was begun in 1969 to provide a supportive environment. (Tr. at 89) He stated that had 354 students with 110 students in the Program. (Tr. at 91) He explained that over the years had faculty development to focus on strategies for disabilities. (Tr. at

92) He further noted that there were 60 students in the grade and the class sizes consisted of 15 to 16 students. (Tr. at 97) He explained that Program consisted of 12 NYS certified education teachers who taught 10 to 12 student before class at 8:40 am and then again after class at 4 pm. (Tr. at 93) He explained that the education teachers work with the students who struggled and made suggestions to the regular education teachers to utilize tactics as scaffolding and chunking and repetition and making sure that the students understand the work before going on to the next subject. (Tr. at 94) He noted that there was a school psychologist, Dr. who helped children with issues. (Tr. at 92) He further noted that the teachers interacted with the regular education teachers so the program was inclusive and this inclusive approach was successful for teaching disabled students. (Tr. at 98-99)

, teacher certified in education, testified that he became ’s teacher in December 2010. (Tr. at 114) He stated that had and issues, slow processing and working problems. (Tr. at 116) He noted that Dr.

reviewed ’s reports with him as well as his supervisor. Mr. noted that there were 3 other students in his classes and the same and issues and that he worked with twice a day every day in the morning and afternoon in his group sessions and twice a week individually. (Tr. at 118) Mr. explained that he addressed ’s slow processing by repetition and breaking down the material piece by piece and then allowing to paraphrase to ensure comprehension. (Tr. at 119) He opined that he was successful with because his grades improved. Mr. explained that weekly reports from ’s teachers were posted on Edline, an e-mail system that allowed to communicate with ’s teachers. (Tr. 121) He explained that required a lot of explanation of his homework due to ’s slow processing and he could e-mail ’s teachers regarding ’s homework to ensure that understood the directions for his homework. (Tr. at 122) He further explained that there was a planner published every year for the students to write homework assignments and he ensured that completed the assignments. (Tr. at 123) He stated that in addition to Edline and the planner he used the program to improve ’s writing. He explained that acronym was prewriting, organizing, writing, and revising. (Tr. at

126) He further explained that used various methods such as laptop computer, graphic organizers and flash cards to address his deficits. (Tr. at 128) He noted that was exempt from a requirement so he was removed from his Spanish class and placed in a writing program. (Tr. at 132)

, History teacher for 7 years at , testified that she taught grade history in class of 16 students. She noted that his deficit was an information processing disorder and that a third of her class had disabilities. (Tr. at 166-168) She stated that she used graphic organizers to put information into small pieces. She further stated that she used an overhead projector to stimulate as many as well as repetition and reinforcement. (Tr. at 170) She described that use of Tupperware bowls as a physical demonstration of organizing information and noted that successfully completed his term paper. (Tr. at 173)

, NYS certified biology teacher for 2 years, testified that he taught biology in class of 15 student. He stated that had problems understanding instruction and had processing issues and he needed assistance to ensure that instructions were followed. (Tr. at 245-247) He noted that there were 5 to 6 students in his class with similar issues to those he noted exhibited. (Tr. at 247) He stated that his class was geared for students that needed the same help that needed. (Tr. at 249) He stated that he provided small instruction in pieces to ensure that directions were easier to understand. (Id.) He explained that his notes were presented on PowerPoint and presented on the overhead projector with pictures, sound effects, movie clips to assist in processing information in many ways to learn more effectively. (Tr. at 251) He further explained that he assisted to focus by standing near him. (Tr. at 253) He opined that made “slow, but steady progress.” (Tr. at 254)

FINDING OF FACT, CONCLUSION OF LAW

The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) The district bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. The district must establish prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (see, e.g., IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5) To meet its burden, the district must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child.

The District representative conceded a FAPE was not offered for the 2010-2011 school year. 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 education needs. The fact that the facility selected by the parent to provide 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 at the non-public school at . The parent’s counsel argued in his post hearing brief that the Second Circuit framed the legal standard for prong 2 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). (IHO Exh. II at 2) The parent’s attorney noted that under Frank G. the Court held that “to qualify for reimbursement under t he IDEA, parents need not show that a private placement furnishes every potential. They need only demonstrate that the placement provides educational instruction ly 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.” (Id.)

Testimony adduced at the hearing clearly demonstrates that provided a small structured therapeutic environment. The parents asserted that was appropriate because had made progress at . The District representative requested that reimbursement be denied from September to December as the program did not start until January 2011. (IHO Exh. I at 2) In Application of the New City Dept. of Educ., Appeal No. 09-017, the SRO held that the absence of SLT which may have been beneficial to the student did not warrant a finding that the private placement was inappropriate. Accordingly, I do not find the absence of the Program until January 2011 rendered inappropriate from the September 2010 until December 2010. The evidence presented from the parent indicated that focusing, receptive and expressive delays were issues for and I find testimony adduced at the hearing established that these education needs were met by his regular education teachers who provided scaffolding, and chunking and repetition to ensure learned. I find that the classroom teachers addressed ’s specific deficits using multimethods. I find the testimony from the history teacher listed the technique she used with including using graphic organizers, presenting information in small pieces, and ly presenting material with an overhead projector to assist in . I find the biology teacher used interactive lessons to teach , such as the overhead projector with pictures, sound effects, movie clips as well as physically touching material. I find there was sufficient information about how the teacher at the individually met his needs. I find was an appropriate placement both with and without the Program. I find the teacher further supported ’s education needs. In light of ’s I find he was grouped appropriately for his academic needs and his social development in the lower academic track at and he was grouped appropriately in his class. The SRO ruled that the school must provide sufficient information about how the program and the related services of the private school meet the individual needs. Application of the New York City Dept. of Educ., Appeal No. 09-020. I find there was sufficient information about how ’s academic needs and social and emotional needs were met at . Therefore, I find that the parent met her burden regarding the unilateral placement of at for the 2010-2011 school year.

The third prong of the test for tuition reimbursement is whether the equities favor the parent’s position. The parent’s counsel noted in his post hearing brief that “Federal district courts have held that a school district may not argue the equities favor it when FAPE is denied. See N.R. v. Department of Education of the City of New York, 2009 U.S. Dist. LEXIS 27273, * 20-10 (S.D.N.Y.)” (IHO Exh. II at 1) The district representative waived prong 1; therefore, I find it waived prong 3. However, I note that the parent established prong 3. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to continue to enroll at for the 2010-2011 school year after visiting the proposed placement on December 2010 (Exh. K) and after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability and make available for evaluations. I find that the equities favor the parent’s position.

The district representative requested that the parent be denied reimbursement for the private evaluation by Dr. because the parent did not request an independent evaluation. (IHO Exh. I at 2) I find the parent was entitled to reimbursement for the evaluation. I find was denied FAPE for the 2010-2011 school year since no evaluations and no assessments and no IEP existed for the 2010-2011 school year until November 22, 2010 despite the recommendations from Dr. and Dr. . I do not find the parent was required to request an independent evaluation. I find CSE was required to conduct the proper assessments for -educational evaluation and any other assessments mandated by law to determine an appropriate class placement and program for the 2010-2011 school year. Because I find there was no FAPE for the 20102011 school year I find the parent was entitled to reimbursement for the cost of the private evaluation by Dr. . Moreover pursuant to 34 CFR 300.502(b)(2) the parent has a right to an independent evaluation at public expense under certain circumstances. I find the district representative did not establish that Dr. ’s evaluation did not meet agency criteria under 300.502(b)(2)(ii) and the district did not file a due process hearing to defend its evaluations (as it did not conduct evaluations) under 300.502(b)(3).

ORDER

Therefore, it is hereby ordered that the Department of Education to reimburse the parent $38, 291.90 for tuition at and to reimburse the parent for the Program in the amount of $9,750 and to reimburse to parent for the cost of the private evaluation in the amount of $4,500 upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Dated: June 2, 2011

` _________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LSA:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New City Department of Education has a right to appeal the decision to the State Review Officer of the New 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 ON FEBRUARY 10, 2011

PARENT

A Testing Report, 6/24/10 , 11 pp. B Parent Letter to CSE, 7/26/10, 2 pp. C Parent Letter to CSE, 8/17/10, 2 pp. D Prep Student Enrollment, 8/26/10, 3 pp. E Prep Proof of Payment, 8/27/10, 6 pp. F Final Notice of Recommendation, 9/24/10, 1 p. G Letter from Dr. , 10/4/10, 1 p. H IEP, 11/22/10, 21 pp. I Impartial Hearing Request, 11/23/10, 5 pp. J Academy Report- Second Quarter, 1/6/11, 1 p. K Parent Letter to , CSE Chair, 1/14/11, 2 pp. L Psychoeducational Report of Dr. , 9/23/05, 12 pp. M Proof of Payment, 8/28/10, 2 pp. N Report of Dr. , 6/24/10, 11 pp. O Proof of Payment for , 2/08/11, 2 pp

POST HEARING SUBMISSIONS

PARENT

P Proof of Cost for Dr. Evaluation, 6/6/10, 1 p. Q Proof of Payment for Dr. , 3/27/11, 3 pp. R Proof of Payment for , 1/03/11, 1 p. S Proof of Payment for , 2/12/11, 1 p. T Proof of Payment for , 3/01/11, 1 p. U Proof of Payment, 3/28/11, 1 p. V Prep Third Quarter Report Card,4/07/11, 1 p.

IMPARTIAL HEARING OFFICER

I District’s Closing Brief, 5/11/11, 2 pp. II Parent’s Closing Brief, 5/11/11, 17 pp.