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 20, 2011

Record Close Date: October 28, 2011

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2011

Advocate — Student

Parents

Interpreter — Student

Assistant Head of (via telephone) — Student

Chairperson Designee, CSE — DOE

Social Worker, CSE (via telephone) — DOE

Dean, School (via telephone) — DOE

— DOE

On April 25, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of ”) The parent requested the hearing on April 21 to challenge the failure of the Committee on Special Education for District 20 (the “CSE”) to offer an appropriate special education program for the 2010-2011 school year and seek payment by Department of Education (“the Department”) for ‟s tuition at , a non-public school in .

The hearing convened and was completed on October 20. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

The compliance date for the submission of this written decision was extended to August 4 and then September 3 in order to permit the Department‟s and the parent‟s witnesses to be available, and then to October 3 in order for the Department‟s witnesses to be available. The compliance date was then extended to November 2 at the request of both parties due to of witnesses. The record closed on October 28 upon the receipt by the hearing officer of the transcript.

year old young man who attends a special education program at , a general education non-public school. His disability is classified, pursuant to the IDEA, as . This classification is not in dispute (trans. 11). During the 2010-2011 school year, he was enrolled in the grade. The School District‟s Case

CSE personnel conducted a evaluation of “as part of his routine evaluation” in June 2010 (Department Ex. 4 at pp. 1, 3). During the evaluation, worked diligently, attentively and cooperatively. He attained a . score of . On the , he attained the following scores: letter-word identification, grade equivalent; passage comprehension, grade equivalent; spelling, grade equivalent; math calculation, grade equivalent; and applied problems, grade equivalent (Department Ex. 4 at p. 2). The evaluator noted that “ . This can negatively [a]ffect both his ” (Department Ex. 4 at p. 3).

The CSE convened on June 22, 2010 to create an Individualized Education Program (“IEP”) for for the 2010-2011 school year (Department Ex. 1). The team recommended that attend an class with a ratio of . The parent and participated in this meeting by telephone, with translating for his mother (Department Ex. 1 at p. 2; trans. 17).

The IEP summarizes the results of the June evaluation and recommends that his teachers “check for understanding” (Department Ex. 1 at p. 3). The IEP includes goals in the areas of math, writing, reading comprehension, and grammar skills. The IEP includes a page labeled “ ” which sets forth “ ” which require and his “school” to identify career goals and assess his (Department Ex. 1 at p. 10-1).

, a licensed social worker employed by the Department, testified that she was assigned to the CSE as the social worker responsible for screening cases, conducting social histories and classroom observations and participating in IEP meetings (trans. 16). She participated in ‟s June 22 CSE meeting (trans. 17). Ms. stated that the CSE recommended that attend an integrated co-teaching class with no more than 12 special education students in a general education class with a general education teacher and a special education teacher. This setting is “supposed to provided support for students who require a little bit of help” (trans. 19). She was not asked to provide any elaboration of or support for this position.

Ms. stated that the CSE considered and rejected a special education class for because it was “ ” (trans. 22). She was not asked to provide any elaboration of or support for this position.

The Department issued a Final Notice of Recommendation dated July 1, 2010 stating that , in (Department Ex. 5).

, a certified special education teacher employed by the Department of Education at in , testified that he was a resource room teacher and dean at the School (trans. 6061). The School provides related services and special education classes, including integrated co-teachings classes (trans. 62). These classes include approximately 34 students, 12 of whom are special education students, with a general education teacher and a special education teacher. At the beginning of the 2010-2011 school year, there was room for additional students in the integrated co-teaching classes (trans. 64, 72). Mr.

stated that the teachers in these classes would have been able to address the goal set forth in ‟s IEP and opined that ‟s needs could have been met in the program (trans. 68-69). He was not asked to elaborate upon, or provide support for, this testimony. The Parent‟s Case , a certified general education teacher employed at , testified that the school was a school enrolling 111 students. The school has a special education program called which includes 30 students (trans. 31). provides students with remedial work, instruction from a special education teacher, guidance, , study skills, , and any other “ that a special needs child may require” (trans. 31-32). Two teachers at the school are certified special education teachers (trans. 32).

During the 2010-2011 school year, was an grade student in the program (trans. 33). There were 14 students in l‟s class (trans. 33, 48). He was pulled out of classes in order to work in small groups of students with the special education teachers and also worked with these teachers during tutorial time on math, English and writing (trans. 34, 44). The teachers also ensured that he did not miss classwork when he was pulled out of class. In addition, he was provided with class outlines at the beginning of each week, received testing accommodations, modified homework and assignments, and modified class work, where necessary.

Ms. explained that struggled with reading comprehension and became “ ” and was “ , and sometimes, if he is ” and “wants to ” (trans. 35). While ‟s behavior at school was “good,” when he was struggling with a subject, “he would and he would just not (trans. 36). All his teachers are aware of these difficulties, and has been received “ and mentoring and modifying of the work to meet his needs” (trans. 35). has “respond[ed] very well” to these interventions by school personnel (trans. 36).

School personnel engage in regular team meetings to discuss students‟ needs (trans. 36-37). has been discussed at these meetings in order to identify “coping mechanisms” and “strategies in the classroom” to address his frustrations and need for modifications of assignments without drawing attention to him in the classroom (trans. 37).

made progress during the 2010-2011 school year both academically and with respect to addressing his (trans. 38). Ms. opined that was an appropriate special education placement for because school personnel were able to address his needs in the areas of . In addition, since the school is a general education environment, benefits from social interaction with and exposure to the modeling of the general education students (trans. 41).

Ms. stated that the small class size at was “important” for because “if he‟s in a large group or if he‟s in a very large class . . . it‟s easier for him to and or needs” (trans. 38-39).

The school day at for students in the program starts at 8:20 A.M. and ends at approximately 4:00 P.M. (trans. 56-57; Parent‟s Ex. F).

earned the following final grades during the 2010-2011 school year in his academic subjects: math English History Science +; Spanish (Parent‟s Ex. G). His progress reports outline his progress in these classes (Parent‟s Ex. I).

The parent sent the CSE a note dated July 12 stating that she could neither accept nor reject the proposed placement at School until after she visited the school when it opened in September (Parent‟s Ex. C). After her visit to the School in September, the parent followed up with a note stating that the proposed program was “ for who[se] reading comprehension is around grade and the instruction observed was grade level” and that she was informed that the classes at the school were filled (Parent‟s Ex. C; see also trans. 75-76). The parent explained at the hearing that the School was too “hectic” and the would “ ” (trans. 78). would not be able to with the of students in the classes (trans. 78-79). At , the parent stated, received the small classes in which he could and receive the teacher (trans. 79-80).

The parent decided to keep at in September 2010 (trans. 87, 91). The parent signed an enrollment contract for on November 27, 2010 (Parent‟s Ex. E). Tuition for the 2010-2011 school year was $36,475.00. The parent has paid $1,600.00 toward this amount (Parent‟s Ex. L; trans. 39). School personnel “ ” to because the family and “all” their (trans. 40). However, the school administration considered the remaining tuition as owed by the parents (trans. 41).

The parent‟s family income is such that the family could not afford to pay ‟s tuition and then pursue a reimbursement claim pursuant to the IDEA (see Parent‟s Ex. K).

Findings of Fact and Decision

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. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District‟s Program The central purposes of the IDEA are to ensure: (1) that students 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 prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended special educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for set forth information from the various assessments, described in his current levels of performance and identified his special education needs. The IEP included goals in ‟s areas of need.

The next step is to examine the IEP to determine whether it sets forth a program that sufficiently addresses ‟s identified special educational needs. In the instant proceeding, the Department failed to demonstrate that the recommended program would address ‟s identified special educational needs. The conclusory testimony of Department‟s two witnesses, while credible, did not explain how the special education services set forth in the IEP would address ‟s needs. For example, the conclusory statement that an integrated co-teaching class is appropriate for students who need “a little bit of help” is of no evidentiary usefulness in this—or any other—proceeding under the IDEA. The record lacks the type of descriptive testimony (which the experienced educators who testified were capable of providing) explaining how the services recommended by the CSE would have addressed ‟s identified special educational needs and would have been reasonably calculated to result in meaningful educational benefits for . Since a hearing officer‟s decision must be based on the evidence adduced at the hearing (both documentary and testamentary), and since the record does not contain sufficient evidence presented by the Department to sustain its burden of proof, I am compelled to find that the Department was unable to establish that it offered a free appropriate public education for the 2010-2011 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of the Academy

The parent bears the burden of proof concerning the appropriateness of the program for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‟s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child‟s potential. They need only demonstrate that the placement provides “educational instruction specially 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.” Frank G., 459 F. 3d at 364.

Considering the “totality of the circumstances,” the evidence supports a finding that the program at was appropriate for . The evidence presented by the parent was far from voluminous—but the burden placed on the parent is more flexible than the burden placed upon the Department when determining “appropriateness.” The evidence presented by the parent does establish that the staff addressed ‟s needs for small classes, remediation, instructional time with special education teachers, strategies and teacher attention to address , outlines, , and and class room work. made progress both academically and with respect to his needs during the 2010-2011 school year at . In addition, since is a general education school, is able to interact with typically developing peers and benefit from experiences. As a result, the parent prevails on the second Burlington/Carter criterion.

The parents did not present evidence that was in need of extended day programs to address his special education needs. As a result, there are no grounds to grant payment for any services provided beyond the 30 hour school week. The school week was approximately 38 hours. Subtracting 8 hours results in a 21% reduction in the tuition. In addition, the $1,600.00 payment made by the parent also reduces the sum for which the Department is responsible. As a result, the Department is responsible for $27,415.00 of the total tuition.

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parent‟s claims, the evidence establishes that the parent cooperated with the CSE by participating in the CSE meeting, visiting the proposed placement, and communicating her concerns to the CSE.

The main question to be addressed in considering the equities in this proceeding is the appropriateness of prospective payment to the school (as opposed to reimbursement to the parent) by the school district. The parent was unable to pay the total tuition up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. Equitable considerations are in the favor of awarding relief to the parent.

Therefore, for all the above reasons, it is ordered that: The Department of Education shall pay to Academy $27,215.00 for tuition for for the 2010-2011 school year. Such payment shall be made within 15 business days of receipt of proof of ‟s attendance at for the 2010-2011 school year. Dated: October 31, 2011

_________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JB:dl

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 ON

PARENT

A Hearing Request, dated 4/21/11, 4 pgs. B School Description, Undated, 1 pg. C Placement Letter, dated 7/1/10, 2 pgs. D Ten-Day Notice Letter, dated 8/18/10, 1 pg. E Enrollment Contract, dated 11/30/10, 1 pg. F Class Schedule, Undated, 1 pg. G Report Card, Undated, 1 pg. H Attendance Record, dated 6/18/11, 1 pg. I Progress Report, Undated, 6 pgs. K 2009-1040, dated 3/18/11, 2 pgs. L School Affidavit, dated 7/7/11, 1 pg.

DEPARTMENT OF EDUCATION

1 IEP, dated 6/22/10, 12 pgs. 2 Social History Update, dated 6/12/10, 2 pgs. 3 Receipt of Parent Guide, dated 6/12/10, 1 pg. 4 Evaluation, dated 6/12/10, 3 pgs. 5 Final Notice of Recommendation, dated 7/1/10, 1 pg.