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: August 16, 2011

October 11, 2011

November 16, 2011

November 18, 2011 Actual Record Close Date: November 29, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 16, 2011

Attorney — Student

CSE- Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2011

Attorney — Student

CSE- Representative — DOE

School Psychologist — DOE

Assistant Principal, — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2011

Attorney — Student

Parents

Pediatrician — Student

Supervising Psychologist — Student

Classroom Teacher — Student

Pathologist — Student

CSE- Representative — DOE

School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2011

Attorney — Student

Physical Therapist — Student

Therapist — Student

Student

Teacher — Student

CSE Representative — DOE

Assistant Principal- — DOE

Therapist- — DOE

On June 27, 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 and placement for 2011-2012 and to request tuition payment for and in connection thereto.

The Complaint alleged a free appropriate public education (FAPE) denial as a result of the Committee on Special Education (CSE) team, inter alia, ignored the parents’ concerns at the meeting; developed goals and objectives outside the meeting; failed to consider programs available in the Continuum of Services; was unable to provide answers to specific questions about the program in question; failed to consider the independent evaluations of the parents; was unduly constituted; recommended a classroom that was too large for the student with an inappropriate student-teacher ratio. The Complaint also alleged that the recommended placement is inappropriate for the student re: his The Complaint alleges, inter alia, that the classroom for the school is on the fourth floor, that hallways and stairwells are not air conditioned, that the environment is not appropriate for the student with too much noise, no sensory gym, small and cramped classrooms. The Complaint seeks payment for and ( ), a .

Three extensions of the applicable timelines were sought by the parties. On August 16, 2011, the parties sought to extend the decision date because of witness availability and issues relating to the pendency placement. I granted this extension to October 11, 2011. (16) On October 11, 2011, the parties again sought to extend the decision date because of witness availability. I granted this extension to November 10, 2011. (107-108) No party indicated any prejudice in connection to such applications. The child has been receiving pendency services throughout the hearing, and no party indicated any harm to the child or any detrimental financial consequences to the District as a result of the extensions. On November 10, 2011, the parties again sought to extend the decision date because of witness availability. I assessed the appropriateness of the extension pursuant to the regulations in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this extension to December 9, 2011 via written notice. (IHO Exh. 2) The record close date in this matter was November 29, 2011, the date that I received the final transcript in this case.

FINDINGS OF FACT

The student has a called ,a which is a that come out to the hearing and go through the . (128) For regular activity, this does not come into play much. (129) If there is , this could affect him. (129-130) could be , including . (130-131) If he is supervised, he can . (134)

Excess variation in temperature also “might be a . (135)

He sees a from every . (142)

The student has . (177-178) He will put his . (177-178) He needs , tasks, facilitated . (209) He needs . (215)

The first CSE review for 2011-2012 was on April 1, 2011. A second review occurred on June 3, 2011. (42-43) This review occurred because the District wanted to take into consideration reports provided by the parent, including a evaluation, a evaluation, and . (43) The District program uses the methodology along with ), and includes a . (51) The District read through the goals while the special education teacher was on the phone, but there were time constraints. (58) As a result, the parents were given the goals to review on their own. (58-59) The District had a physical exam form available at the time of the review. (117)

The District had the evaluation of Dr. , who indicated that the child needed additional evaluations by a , a , and an provider. (299) He needed and to increase . (299)

A teacher from was at the review. (162) The review was very “combative.” (163)

The parents disagreed with the position of the CSE and did not feel like they were being listened to. (163-164) The parents received the IEP weeks later. (169)

The recommended school, , has nine classes of classes for students with . (84) The student’s class would be on the . (85) The school’s methodology reflects a highly structured classroom involving group work, small group instruction, instruction as well as independent work. (87) There is in the building, but not in the .

(91) During lunch, students from another school are in a lunchroom with their students.

(92) Children will during lunch. (93) services may possibly be provided through the school, though they may also be provided through an RSA. (94) Children are also in the cafeteria during breakfast. (99) There is no air conditioning in the cafeteria or gym. (104)

The school has four flights with landings .(341) Children are not rushed up the stairs, and there are handrails available. (341)

A third review occurred on June 16, 2011 and added transportation. (45)

The student attends the since the 2009-2010 school year. (152-153) The school provides a ratio for the student. (158) He now , after beginning the school speaking about . (159-161) There is now improvement in terms of . (161) Progress is inconsistent. (180) The student benefits from the at the school. (178) The parents are provided with daily communications. (180)

The student is in the at the school. (190-191) Children in the class are mostly . (191) The building is air conditioned for all 12 months. (193) Teachers have medical alerts for him. (194)

The school uses immersion, constantly , to component parts. (195) It is a approach. (195) Prompting, modeling is used. (195) is simplified. (196) He is using more since he came to the school. (197) He now uses . (197) He receives , ) and ) at the school. (200) There is a parent training component to the education, including and observing the student on . (201) He has shown while in his at . (213) He started recognizing his name, colors, letters, shapes, numbers, albeit on an inconsistent basis.

(213) He had been speaking “ .” (223) He will now use . (227) He can answer simple “wh” questions. (227)

He gets twice a week individually, once a week in a group. (241)

The student requires to in the building. (259) She has worked on with the child. (260-262) He needs to be in the by himself to . (263) He would be able to handle . (274) He would become if he had to go more than . (275)

He benefitted from the at the school. (282) There are improvements in terms of writing through . (287-289)

In class, he has improved with respect to expressing wants and needs, verbalizing requests. (319-320) The teacher provides “ ” in terms of his reading group. (324) There is , where the program is used. (325) He is beginning to in the class. (328)

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 may 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 ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), 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).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. 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 parents claimed, in their hearing Complaint, that the District’s placement requires the student to inappropriately The testimony adduced at the hearing indicates that the student would be were he to every day in school. The child’s testified that it could be . The indicated that the child could or such a situation. The student’s indicated that the child needs to be with to negotiate stairs, and would be able to handle only flights. Both the pediatrician and the suggested that he needs individual assistance to . The IEP does not provide for any such assistance in connection with .

The record also reveals that the student requires a in connection to his education. The recommendations of the parents’ evaluators, in particular Dr. and , indicate that the child requires an environment where language work is emphasized. The testimony from the District indicates that the recommended program employs the methodology, which is characterized as a structural support by Mr. at . Mr. described the program at length but did not mention except to discuss differentiated . When asked whether was a based methodology, he indicated that the program is more than . The IEP did indicate that the student benefits from with details. However, there is nothing in the record to suggest that these needs will be addressed through the recommended school location. The District bears the burden of proof in these proceedings. Given that the allegations in the Complaint emphasized the need for the student to continue to work in an environment, in my view the District should have shown that the site in question would work to remediate the student’s issues. J.S. v. Scarsdale Union Free School Dist., 111 LRP 73958 (S.D.N.Y.

2011) Under the circumstances, the parents prevail on the first criterion.

On the second criterion, 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 Louis’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record indicates that the student benefits from the environment at . The student entered the program not .” Now, he will use and can answer simple “ ” questions. The record shows that the school uses “immersion.” constantly rephrasing words, breaking language into component parts, with a . Two teachers and two assistants provide instruction on , to its component parts, prompting, modeling, tactile cues. His teacher, Ms. , indicates that the student needs a lot of in a small group environment. Modifications in the school include having him , having a teacher . The record also indicates that the student has which are met through the school’s . The school does not require the student to and the student benefits from the use of an . All teachers at the school are special education certified. A psychologist is assigned to every classroom, and students with short attention plans are provided with a token economy system. The record indicates that the school is sensitive to the student’s . The District did not present any arguments in its closing statement in regard to the second criterion. I agree with the parents that is an appropriate placement for 2011-2012.

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 parents should have clearly told the District about the student’s restrictions at the IEP review. The District contends that it did not know that the student had until the receipt of the letter from Dr. dated October 10, 2011. (Exh. AA) I agree with the District that it would have been appropriate for the parents to raise this issue at the review so that the District would have had a better opportunity to flag the . Further, in the parents’ notice, the parents do not clearly indicate that it might be of . The parents only indicate that the layout of the building is “(n)ot optimal” for a child with a . (Exh. W) This notice is dated May 23, 2011 – although the letter references a June 3, 2011 CSE review. There is no testimony in the record to clarify when the notice was sent by the parents. I find that the parents did not comply with the notice provisions of the Act.

Since the District did have notice of the child’s , it would have been appropriate for the District to inquire into the nature of that condition when the CSE met in June, 2011. The record suggests that District did not do so. Moreover, there is nothing in the record to suggest that the District had a site without that was available to the student for the 2011-2012 school year. Additionally, the record reveals that the parents were cooperative with the District in every other respect. Accordingly, I will order that the District pay tuition to the school for 2011-2012, but exercise my discretion and reduce the award by 15%. G.B. v. Tuxedo Union Free School Dist., 751 F.Supp.2d 552 (S.D.N.Y. 2010). Dated: December 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

A Hearing Request, 6/27/11, 7 pp. B Due Process Response, 7/29/11, 4 pp. C IEP, 8/4/10, 20 pp. D CPSE Recommendations for , 4 pp. E IEP, 5/1/11, 16 pp. F Letter, 9/4/2007, 2 pp. G SRO Decision, 4/10/03, 4 pp. H Rate Setting Unit for Tuition, 2010/2011, 9/3/2010 I Letter by Enclosing Six Documents for the DOE to Review at the 6/3/11 Meeting, 5/18/11, 14 pp. J IEP, 6/3/11, 16 pp. K Omitted L Omitted M Progress Report for 2009-2010 School Year, 8/20/11, 9 pp. N Progress Report for the 2010-2011 IEP Goals, 8/12/11, 6 pp. O Progress Report for 2010-2011 IEP Goals, 6/24/11, 7 pp. P Progress Report for the 2010-2011 School Year, 2/18/11, 8 pp. Q Omitted R Omitted S Omitted T Omitted U Omitted V Letter by the Parent to , 5/24/11, 3 pp. W Letter by the Parent to , 5/23/11, 1 p. X Class Schedule for , Fall 2011, 3 pp. Y SED Rate Setting Unit, 1 p. Z Tax Returns of the Parent for Fiscal 2010, 2/26/11, 28 pp. AA Note Written by Dr. , 10/10/11 BB Stricken by IHO, duplicative CC Stricken by IHO, duplicative DD Request to , 3/22/11, 3 pp. EE Request to , 5/20/11, 2 pp. FF Order on Pendency, 8/16/11, 5 pp.

DEPARTMENT OF EDUCATION

1 IEP with Attendance Pages of This Meeting Date and Previous Meeting Dates,

6/16/11, 17 pp. 2 Meeting Notice, 3/22/11, 1 p. 3 Meeting Notice, 5/10/11, 1 p. 4 Progress Report from in , 6/2011, 12 pp. 5 Note from 4/22/11, 1 p. 6 Note from 4/20/11, 1 p. 7 Physician Review (transportation), 6/12/11, 1 p. 8 LRE Statement from , Undated, 2 pp. 9 Annual Review Classroom 4-2 from SLCD, 1/2011, 3 pp. 10 Annual Review, from , 13 pp. 11 Annual Review, from , 2 pp. 12 Annual Review, from , 3 pp. 13 Social Update from the School, 3/9/11, 3 pp. 14 Psycho-Educational Report from NYC DOE by , 3/29/11, 6 pp. 15 Evaluation by , 3/19/11, 5 pp. 16 Final Notice of Recommendation, 6/15/11, 1 p. 17 Physical Exam on DOE Request Form, by Dr. , 3/4/11, 2 pp.

IMPARTIAL HEARING OFFICER

I Amended Order on Pendency, 9/6/11, 5 pp. II1 Notice of Extensions sent by IHO to Parties

Changed at Impartial Hearing Officer’s request.