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: June 21, 2011

August 15, 2011

October 26, 2011

December 5, 2011

December 8, 2011 Actual Record Close Date: December 13, 2011 Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2011

Attorney (via telephone) — Student

Social Worker (via telephone) — DOE

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

Attorney (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2011

Attorney — Student

Parents

Ph.D., Chairperson Designee — DOE

Observer — DOE

IEP Teacher — DOE

Special Ed Assigned Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2011

Attorney — Student

Parents

CSE Chairperson Designee — DOE

CSE Observer — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2011

Attorney — Student

Assistant Director, (via telephone) — Student

School Psychologist/Chairperson's Designee, CSE — DOE

By Complaint dated April 20, 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 the Program at for 2010-2011.

The Complaint indicates that the District denied free appropriate public education (FAPE) by having an invalid Committee on Special Education (CSE) composition; by including insufficient goals and objectives on the Individualized Education Program (IEP); by failing to review appropriate evaluative data; by failing to describe the student’s present performance and levels and needs; by failing to recommend a small full-time special education class for the student to address his academic delays, attending issues and .

A hearing date was set for June 9, 2011 after both sides did not respond to a scheduling E-mail from the hearing officer. The parent moved to adjourn because the matter was scheduled on a religious holiday. The IHO granted this adjournment. The IHO then sought to set a hearing date for the following two weeks. The matter was then rescheduled for June 21, 2011. The District moved to adjourn this hearing date. This adjournment request was denied.

The parties indicated that they were not prepared to present testimony and evidence and sought to present opening statements only. The parties indicated that they needed additional time to set a hearing date because of witness availability and were seeking to extend the time for a decision. I 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 July 21, 2011 (10). In particular, there was no showing or any prejudice to the child since the school year in question had ended and there was no prejudice to the District since the matter did not involve pendency rights. Another request for extension was made jointly by the parties through oral statements on July 21, 2011. This request was because of witness availability and case preparation. I 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 20, 2011 (10). Again, there was no showing or any prejudice to the child since the school year in question had ended and there was no prejudice to the District since the matter did not involve pendency rights.

The parent sought to adjourn the hearing date on August 15. This application was denied by the hearing officer. The District then indicated that it had no witnesses available. The parties indicated that they would have witnesses available on October 24, which was then set as the new hearing date by agreement of the parties. The parties moved to extend the timelines again because of witness availability and case preparation issues. I 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 20, 2011 (16). I indicated a concern with the timeliness of the matter to the parties. The new decision date was set at September 15, 2011. Given that the hearing date was set for October 14, the parent then moved to extend the timelines again because of witness availability. I determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to October 14, 2011 (IHO Exh. 1).

The parent then moved to adjourn the hearing date on October 14, 2011, again because of witness availability. The District joined in the application. I again granted a motion to adjourn. The parties then again jointly moved to extend the timelines again for witness availability. I determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to November 12, 2011 (IHO Exh. 1). There continued to be no issues relating to prejudice to the child or the District.

The parties sought hearing dates in December at this point. I rejected this request and indicated to the parties that the matter had to be resolved more quickly. The hearing date was set for October 28, 2011. On this date, the District presented witnesses and evidence.

The parties then submitted a joint request to extend the timelines further. The parent’s side specifically indicated that the regulations supported by application by Email dated November 11, 2011. (IHO Exh. 1) The parent noted that her witness was not available on the previous hearing date and that there was no financial detriment to the parties because of the nature of the litigation. I determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to December 13, 2011 (IHO Exh. 1).

The parties then sought to put the case on for January, 2012. I indicated that the case had to be tried and finished quickly. The District advised that it had 207 cases scheduled through December 21, 2011. (IHO Exh. 1) I required the parties to appear for hearing on December 5 and 8, 2011. On these dates, the parent presented their witnesses. I then requested that the transcripts be expedited so that a decision could be rendered immediately. (191) The final transcript arrived by mail to the IHO on December 12, 2011. The parties sought to extend the timelines so that the IHO could render a decision based on the transcripts. The new decision date was set at December 27, 2011. (IHO Exh. 1)

The parties gave oral statements on December 5, 2011 indicating that they felt the extensions of the timelines in every instance were for good cause. (87)

FINDINGS OF FACT

The student is a year old who has difficulty with , reading fluency, attention.

(129) He requires small group and individualized instruction in his classes. (131) His reading fluency is and comprehension is . (131-132) The student is a . (131) There is in terms of . (136) For 2010-2011, the student was a level. (142) He will thoughts or by . (145) He has processing. (167; Exh. 5)

At the CSE review on 3/10/10, the team reviewed a progress report, a ’s report, a evaluation, a report. (59) The parent did not understand what the recommendation meant. (93-94) She thought that the recommendation was for a small class. (120)

The proposed school is . (23) In the at the school, there are 12 children with special education needs. (29) There is a general education teacher and a special education teacher for each class, with different general education teachers for each subject. (29) The special education teacher “follows the students around.” (29)

There might be 25 students in the class, but there might be less also. (35-36) There are a range of classifications in the classroom. (47)

The parent visited and felt the classes were too large. (108-113)

At the Program at , tuition was $34,000. (97) The parents get a discount because they send multiple children to the school. (107-108) The amount paid was $32,

480. (108) They decided to send the student to this school in June or July. (101) The contract was signed on 8/30/10. (118; Exh. C)

The classroom at the school had seven children in it. (129) Students ranged from years of age, with a certified special education teacher leading the class. (129-130) Students have issues. (130)

At , the student receives individual work or smaller group work to learn new concepts. (130) He finds it difficult to work with other students around him while at school. (130) Special attention must be given to the student to keep him on task. (Exh.

E) He receives supports such as graphic organizers, visual representation of materials, a Smartboard in the classroom. (131) They use a reading program called and a reading anthology on the grade level. (132) In math, they used a text on the grade level. (135) The student would receive support during math to stay . (135) In terms of writing, the student received a program that allowed him to “brainstorm” and then visually organize them. (137) This resulted in as the length and quality of the written expression increased. (137)

In terms of reading, the materials were mostly read to him. (171) Supplementary materials were used in math instruction. (171) New concepts in math were introduced “outside” the text book. (171)

The student made progress in the program by over a full grade level in terms of fluency for 2010-2011. (134) The student made progress in math. (135-136)

The student sat in front of the class. (137) Sometimes an assistant teacher would sit with him to . (137-138) He would get . (157)

The student received and at the school. (138)

The school is an all-boys school. (115) The school has a . (117, 163)

The student has never been in a school without a . (117-118)

Mr. was his teacher, and was the assistant. (146) Mr. was there for 2pm to 5:30pm. (147) was the teacher in the morning. (147) The secular portion of the school day begins at 2pm. (155)

The school included a program. (170-171) The student has in the class and is insubordinate when challenged to obey class rules or teacher instruction. (Exh. E) When , he uses . (Exh. E) The student is making progress in terms of , using strategies to work on the . (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 Individuals with Disabilities Education Act (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 District’s Evaluation dated 2/24/10 indicated that the student is having but that particular concerns . The Evaluation also indicated that the student has difficulty maintaining an “ ” over his . Also in the District evaluator’s observation, it was indicated that the student was not minutes. Moreover, the record indicates that the student has had in the small classroom that he is currently in. I find that the student would have for the duration of the class period in the proposed placement with roughly 25 students. These “ ” issues would be all the more likely during any large group instruction in the general education classroom given the student’s issues. I note that the IEP does not require any interventions in connection to performance save “ .” It should be noted that the District did not call any witness who has personally met or evaluated the child. The parent 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 Yosef’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The student is a year old who has , . His reading fluency is . He student is a . He will or by . He has .

The record shows that the student’s needs are met by the modified, small group instruction at the school. The small class size allows the student to better focus on his work. The school also implemented a to help the and . The student also receives small group and individual work to learn new concepts. He receives supports such as graphic organizers, visual representation of materials. The record also indicated that the student would sit in front of the class, and that an assistant teacher would sit with him to .

The testimony from the school indicates that the student is making progress in terms of his academic performance. The in the program by over a level in terms of reading fluency for 2010-2011. The record also indicates that the student made progress in math. The record also to improved during this time. Progress reports from the school are consistent with this testimony. The reports also indicate that the student is making progress in , using .

The District argues that there is no showing of progress here through standardized testing. However, the parents are not required to provide any such testing when making their case on the second prong. A.D. and M.D. v. Board of Educ., 690 F. Supp.2d 193 (S.D.N.Y. 2010). The District also argues that the student should not have been taught with without because the student did not perform at a grade level. However, the record shows that the student was provided with appropriate support. The record shows that materials were read to him during reading instruction, and that supplementary materials were used in math instruction. New concepts in math were introduced without reference to the text book. The student would receive graphic organizers for support. He often received instruction for support in math. The parent prevails on the second prong.

On the third criterion, 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 . The District points out further that the parent’s program is only . However, the record does not establish that the parent would not have considered a for the child. The District also does not provide any case law to support its position that an IHO should reduce an award where the parent is seeking reimbursement for instruction that is partly religious in nature. As SRO Robert Bentley 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 public 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 religion. Tuition reimbursement does not create a financial incentive for children to undertake religious 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 and is awarded tuition reimbursement for the 2010-2011 year. Dated: December 27, 2011

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer MSL:gc

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 Letter from Parent, 8/4/10, 2 pp. B Letter from Parent 9/14/10, 2 pp. C Tuition Contract, 8/30/11, 1 p. D Class Schedule, 2010-2011, 1 p. E Teacher Report, 3/2011, 2 pp. F Statement of Payment, 2/1/11, 1 p. G Proof of Payment, 6/20/11-9/1/11, 7 pp.

DEPARTMENT OF EDUCATION

1 IEP, 3/10/10, 15 pp. 2 Update, 3/8/10, 1 p. 3 Update, 2/10/10, 1 p. 4 Declamation of Parent Member, 2/10/10, 1 p. 5 Evaluation, 2/14/10, 5 pp. 6 Social Update, 3/1/10, 2 pp. 7 School Report, 1/25/10, 2 pp. 8 Final Notice of Recommendation, 7/20/10, 1 p.

IMPARTIAL HEARING OFFICER

I Notices of Extension, ,8 pp. II Complaint, 4/20/11, 2 pp.