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: October 28, 2011

December 2, 2011

December 9, 2011 Actual Record Close Date: December 19, 2011 Hearing Officer:

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

Advocate — Student

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011

Advocate — Student

Mother — Student

District Representative — DOE

School (via telephone) — DOE

Assistant Principal- (via telephone) — DOE

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

Advocate — Student

Parents

Principal (via telephone) — Student

DOE Representative — DOE

By Complaint dated April 19, 2011, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review ’s program for 2010-2011, and to request placement at for 2010-2011 ( .

The Complaint indicates that the District denied FAPE by recommending a special class with a ratio of . The parent indicated that the class size was too big given ’s and sought reimbursement and/or direct payment for .

After the resolution period, the IHO asked the parties for dates within 14 days. (IHO Exh. 1) The parties indicated that they were not ready to proceed within 14 days and needed additional time to prepare for the case and sought an extension of the decision date. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to August 6, 2011. A hearing date was set for July 7, 2011. The District moved to adjourn because of witness availability. The IHO granted this adjournment without objection from the parent. The District indicated it wanted to schedule the matter in the fall because school witnesses would be available then. (IHO Exh. 1) The matter was rescheduled for July 27, 2011. Both parties requested adjournments because of witness availability and an extension of the decision date because of witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to September 1, 2011. Both parties again sought to extend the decision date on September 1, 2011 because of witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to September 30, 2011. (IHO Exh. 1) In connection to the above extensions, it should be noted that the matter involved the 2010-2011 school year and that the District was not providing any services through pendency placements. There was no showing of any prejudice to the child or to the District.

The matter was then rescheduled for September 28, 2011. The parent moved to adjourn this hearing date because of religious observance. There was no opposition from the District. This request was granted. Both parties again sought to extend the decision date to October 29, 2011 because of witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to October 29, 2011.

The matter was rescheduled to October 28, 2011, December 2, 2011 and December 9, 2011. After the October 28, 2011 date, the IHO indicated that no further adjournments would be allowed. (12) On these dates, the parties presented testimony, evidence opening statements and closing statements. The parties sought to extend the decision date two additional times on witness availability, to allow the hearing to proceed on the scheduled dates, to allow for the processing of the transcript, and to allow time for the decision writing. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extensions to November 30, 2011 and then December 29, 2011. (IHO Exh. 1)

It should be noted that, by E-mail dated November 28, 2011, the District represented that it would have prejudiced the District’s case to have been forced to litigate the matter earlier. (IHO Exh. 1) The parent also indicated on the record that all the extensions of the decision date were appropriate under the regulations because it is a reimbursement case where the matter involves a prior school year. (12)

FINDINGS OF FACT

The student is a old classified as a student with a impairment. His math level is at the level, his reading is about the level. (99-100) In terms of and , skills are very . (100) He has . (100) are .

(100) When l is stated to him, it needs to so that he . (100) are (100) There are no with this student. (100)

The student should not be in a class. (107)

An observation of the student was conducted by the District on April 27, 2010. (Exh. 2) The student was observed to have and . He followed directions, answered questions. His . He was .

A CSE meeting was held on May 14, 2010 for the student. (22) Based on reports from a school, his basic decoding skills were at grade and reading comprehension was at a level. (30-31) The student’s math scores were at a level. (31) At the review, the observation was reviewed. (33) The classification was and the recommendation was for a special class in a community school (39) There was no disagreement with the recommendation. (39-40) Mr. , director of the school, was at the meeting. (42)

The IEP dated May 14, 2010 recommends a special class in a community school. (Exh. J). The IEP provides for , , . It also provides for double time on , aloud.

The recommended location is School. (66) classes at the school were available for the student. (69-70) Students were at a similar functioning level to the student in these classes. (73-74) Many of the students in the class have the same needs as the student. (75-76) Teachers will meet at the end of each term and indicate to parents whether the students may be mainstreamed or go to an ICT class. (78) The record indicates that the proposed class can satisfy the requirements of the IEP, including the goals. (78-82)

The school generally does not mix the children with the children. (80) Class size ranges from (82)

There is security and the halls are quiet. (84) There are about children in the building. (85)

The is a school that teaches students in grades . (96) Students typically have . (96) They are at average to above . (96) There are no more than students in a class at the school. (98) There is one teacher. (98) A language consultant sees the children on a regular basis. (98) In the student’s subjects, there were children in the class. (105, 109)

The student was a grader in a program. (99) Certain classes were in areas. (104, 117) There is a class on language. (105) There were students in the class for the 2010-2011 school year. (105) Children in the class have reading levels ranging from between grade. (114) In math, levels are between and grade. (114)

The student’s progress was slow. (107)

In the school, children may receive extra help during a free period. (107)

The student does not attend services because he does not want to go to them.

(112) The student also on an as-needed basis. (113)

The parent’s ten day notice indicated that there were out of in the school building. (Exh. C) Tuition was $ per year. (Exh. E)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("prong one,") the services selected by the parent are appropriate ("prong two"), and equitable considerations support the parent's claim ("prong three"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

To meet the burden on the first criterion, the District must show that it has offered a Free Appropriate Public Education, the District must show that it complied with the procedural requirements in the IDEA, and that the IEP is reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982) While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The only claim relating to FAPE denial in the Complaint is that the District’s proposed placement contains an size and staffing ratio. The Complaint points to the student’s issues.

The record indicates that the student’s needs relate to , reading comprehension, . The record does reveal that the student requires a class at his level to address these needs. To address these needs, the District recommended classes with a ratio that would have included . The classes would . The IEP also recommended double time on tests, questions read aloud, separate location for tests, directions read and reread aloud. The record indicates that the classes at the District school were available for the student. Students were at similar functioning level to the student in these classes. Teachers met at the end of each term and indicated to parents whether the students may be mainstreamed or go to an “ICT” class. The record indicates that the proposed classes could satisfy the requirements of the IEP, including the goals.

The parent contends that the ratio is still too large. The parent argues that the child is and and requires the even smaller setting that the child is currently in at The . In her testimony, the parent indicated that the student would be too distracted by students in the classroom. The parent also indicated that the student would not focus with so many children in the classroom. (124-125)

The record does not support the parent’s position. The school reports in the record do not indicate anything to the effect that the student is The observation in the record did not note that the student was . The testimony from Mr. at also does not indicate that the student was . Further, the testimony from the District school indicates that there would have been only children in the student’s classes. The record does not indicate any clear rationale to support the parent’s position that the student is appropriately placed in a classroom with children but is inappropriately placed in a classroom with or children. There is no evaluation from the parent, no medical documentation from the parent, and no objective testimony to support the parent’s position. Finally, the record indicates that there was no objection to the District recommendation at the CSE review.

The parent raised issues relating to the CSE composition during opening statements. However, there is no such issue raised in the Complaint, and no such issue was raised in closing statements. With respect to this contention, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. Sect. 1415(f)(3)(B); 34 C.F.R. Sects. 300.507(d)(3)(I), 300.511(d); 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. Sect. 1415 (c)(2)(E)(i)(II); 34 C.F.R. Sect. 300.507(d)(3)(ii); 8 NYCRR 200.5[i][7][b]); Snyder v. Montgomery County. Pub. Sch., 2009 WL 3246579

(D. Md. Sept. 29, 2009); Saki v. Hawaii, 2008 WL 1912442 (D. Hawaii Apr. 30, 2008).

As a result, the District prevails on the first prong.

On the second prong, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address Joseph’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The student’s special education class consists of students who are to , and there were students in the class for 2010-2011. A consultant saw the children on a regular basis. Children were appropriately grouped in the class. The record reflects that the student was comfortable at the school and had the opportunity to receive a significant amount of extra help at the school. The record also indicates that the school had qualified, trained personnel. The observation from the District indicates that the student was functioning appropriately at . The student has made progress over the course of his time at the school. I agree with the parents that The was an appropriate placement for 2010-2011. The parent prevails on the second prong.

On the third prong, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if 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 written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District suggests that the parent did not really consider the District program because she really wanted a program. The District indicated that the parent would not have considered a District program because District programs were and

However, the record does not establish that the parent would not have considered a placement for the child. The District also does not provide any caselaw to support its position that an IHO should reduce an award where the parent is seeking reimbursement for instruction that is partly in nature. As SRO indicated in 1996:

In its Burlington and Carter decisions, the Supreme Court provided the remedy of tuition reimbursement to the parents of children who were entitled to receive a free appropriate pubic education but did not receive that education. The remedy is available to all parents who otherwise meet the criteria set forth in those decisions, regardless of whether the expenses which they incur arise from placement of their children in other public schools or in private schools. Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of Tuition reimbursement does not create a financial incentive for children to undertake education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children appropriate educational placements. Application of the Board of Education of the City of New York, Appeal No. 96-14.

As a result of the foregoing, the parent prevails on the third prong.

However, since the District prevailed on the first prong, the reimbursement claim must be denied. Dated: December 29, 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

A Complaint, 4/19/11, 4 pp. B School Description, Undated, 1 p. C Notice Letter, 8/18/10, 1 p. D Placement Letter and Fax Confirmation, 5/19/10, 2 pp. E Enrollment Contract 2010-2011, 1 p. F School Affidavit, 8/16/11, 2 pp. G Attendance Record 2010-2011, 1 p. H Daily Class Schedule 2010-2011, 1 p. I School Progress Report 2010-2011, 1 p. J Stricken K Proof of Payment 2010-2011, 9 pp.

DEPARTMENT OF EDUCATION

1 IEP, 5/14/10, 15 pp. 2 Observation, 4/27/10, 2 pp. 3 School Report, 10/26/09, 1 p. 4 Final Notice of Recommendation, 5/19/10, 1 p.

IMPARTIAL HEARING OFFICER

I Emails to the Parties, Various Dates, 7 pp.