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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: September 21, 2011
October 21, 2011 Actual Record Close Date: November 1, 2011 Hearing Officer: Craig Tessler, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2011
Attorney — Student
Attorney — Student
Parents
Special Education Teacher — Student
Dir-Student Support Services — Student
CSE Representative — DOE
School Psychologist — DOE
Special Ed Admin. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2011
Attorney — Student
Attorney — Student
Special Education Teacher — Student
Parents
CSE Representative — DOE
I. Introduction — DOE
On July 22, 2011, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) to determine the special education program of ; the hearing was held on September 21 and October 21, 2011. (The October 21 hearing session was held to permit re-taking testimony from a witness who testified on September 21, but whose testimony was omitted because of a recording company error. At the parent’s attorney’s request, the decision deadline was extended to allow the witness to testify again.) Lists of persons in attendance and documents received in evidence are appended to the record.
II. Background
is a year old student classified with , who attends the ”), a private program which is not approved by the State Education Department (“SED”) to provide education to students with disabilities. Classification is not disputed. On February 14, 2011, the CSE held a review and issued an IEP (Exh. A) recommending a special class in a community school, with therapy , (“ ”) minutes , and once per week for 30 minutes . On July 14, 2011, a place in was offered (Exh. B). , Esq., attorney for ’s parent, requested the hearing on July 21, 2011 (Exh. C), alleging that the department of education failed to offer an appropriate program for 2011/12, and that is an appropriate program for him. The hearing requests seeks department of education funding for ’s 2011/12 tuition.
III. The CSE’s Case
, a department of education School Psychologist assigned to CSE for two years, testified that her duties include assessments, evaluations, observations and IEP meetings. Ms. visited 15 to 18 times during 2010/11, and described it as a school for students with learning disabilities, especially reading disorders. Ms. participated in ’s February 14, 2011 CSE review, and stated that the team reviewed progress reports. Ms. reviewed assessments of l from 2004 and 2007; she did not review any later evaluations, and did not evaluate or observe . Ms. stated that has abilities, and delayed academic skills. Ms. stated that ’s problems are secondary to his learning disabilities in reading and writing. Ms. stated that in t grade, functioned near grade level, but his functioning level declined several years later; she did not know that repeated grade. Ms. said that ’s IEP was not changed from the previous year, and that it contains goals addressing ’s (“ ”) and . Ms. stated that cannot meet the related service mandates on ’s IEP, because he does not receive there.
, a department of education Special Education Administrator assigned to , testified that the school has and special education classes for students in through grades; there are classes, and 3 (“ ”) classes. Ms. stated that the grade class recommended for is “semi-departmentalized,” with one teacher for math and science, and another for ELA and social studies. There are currently 7 students in the class, with classifications including , , and ; their reading and math levels range from grade. None of the students have that seriously interfere with their instruction. The students participate in standard assessments, and progress reports are issued every 6 weeks. The ELA teacher is certified in the Wilson Reading method, and all students are assessed for placement in small reading groups. The teachers use methods of instruction, including the Wilson Reading, Teacher’s College, and others; there is also and smallgroup instruction, and the class composition encourages for modeling. Ms. stated there is frequent parent-teacher contact, that all related services are available, and that all classes have a para. ’s parent and her attorney visited on September 16, 2011; they spent about 45 minutes at the school, visited the proposed class, and spoke with the teacher. Ms. reviewed ’s IEP, and stated that the recommended class is appropriate for .
IV. The Parent’s Case
, a Special Education Teacher at for 9 years, testified that she has a . in special and general education, certification to teach special education, is an associate member of the Academy, and has extensive training in methods. Ms. described the as a , / instruction, intended for students with and involving language, structure, organization, and fluency. The method allows for a student’s instruction to be modified as the student’s performance dictates. Ms. has been ’s ELA and homeroom teacher for 2 years; during 2009/10, she was ’s math teacher. Ms. addresses ’s academic management needs (Exh. A, p. 4), with instruction, modified curriculum, differentiated worksheets, organizational aids, graphic organizers, computer programs, a point system, positive reinforcement, a timer, preferential seating, re-direction, work, and other interventions. A typical class day includes ELA, social studies gym, science, math, lunch, writing, and tutoring/remediation; there are “club” activities once per week. Students are assessed by standardized tests, including the and the , and by informal observation. Ms. stated that has progressed: he formerly could not write sentences, and now can write paragraphs; he participates in class discussions; and he has increased his spelling and vocabulary skills. Ms. stated that is appropriate for , and that a class is too large for .
, ’s Founder and Principal, testified that she has directed the school for 12 years, has M.S. degrees in Reading/Education and School Administration, and is a member of the . Ms. Arberman stated that is a program for students with disabilities; the curriculum is based on the method, and all teachers are trained in multi-sensory methods. There are 26 students in grades , all of whom have IEPs. has nine teachers; seven have special education certification. Ms. has worked with frequently, visits his class at least once per week, has frequent contact with his teacher, and created his ELA and reading groups. Ms. stated that was unable to read when he entered in September, 2008: he had some sight vocabulary, but functioned at a level. had skills, but was problems. Ms. testified that ’s reading and math skills have improved: he reads at a level independently, and at level with support and prompting. ’s math skills are close to level, although his problems is . staff developed the academic management needs page of ’s IEP (Exh. A, p. 4); Ms. Arberman stated that requires these supports in all areas, and that can meet ’s management needs. is in a class, and receives ELA, writing, and math instruction in small groups of . receives daily remediation with a reading teacher who has special education certification. Ms. testified that has organizational and processing issues, requires and “ ,” is or lmed, is for help, and requires n; she stated that even with his current level of support, it will take great effort for him to function at grade level. receives therapy once per week for 60 minutes ; Ms. meets with the therapist weekly to discuss ’s progress and any program modifications. receives at , but does not receive ; fine skills are addressed in class as part of the method. The Woodcock Reading Mastery test is administered to students annually. issues three report cards per year (Exhs. 5, G). ’s 2011/12 tuition is $38,000; ’s parent signed a contract with the school, but has not made any payment.
’s parent testified that he delays as a . attended a center program for . was classified as , and during grades was placed in a public school general education class, with SETSS, therapy, , and ; he was placed in a public school (“ ”) class in grade. Ms stated that when attended public school, he could the . grade. Ms. tried to visit in July, 2011, but it was closed. She visited in September, 2011, accompanied by her attorney. Ms. testified that her , she has three children, one of her children receives payments, and the household income is about $33,000. She said she cannot afford to pay the tuition. Ms. stated that needs a special education school because of his reading and learning difficulties. Her other children attend public schools.
’s developmental pediatrician reported in June and July, 2010 (Exhs. D, E) that will benefit from 1:1 or small group instruction using methods, in a school for children with learning disabilities in reading and processing.
V. Findings of Fact and Conclusions of Law
I find that ’s parent has met the burden of showing that she is entitled to Department of Education payment of ’s tuition at because: the department of education’s IEP is substantively invalid and their recommended placement is inappropriate; the parent has shown to be an appropriate program for ; equitable considerations support a tuition award; the parent has shown that she cannot afford to pay ’s tuition and is entitled to prospective payment. A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). In Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 (1993), the Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the State Education Agency pursuant to IDEA. This decision expands the Court’s decision in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which held that a court may order reimbursement to parents who disagree with a proposed IEP and unilaterally place their child in a private school. Such a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that:
(1) the public placement violates the IDEA; and (2) the private placement is proper and is reasonable calculated to enable the child to receive educational benefits. The Court must also consider equitable factors, such as communication and cooperation between the parent and the school board, the parent’s awareness of and timely exercise of due process rights, and the appropriate and reasonable level of reimbursement.
I find that ’s parent met the Carter requirements. I find that the February 14, 2011 IEP in substantively deficient because the CSE did not conduct any current evaluations to determine ’s needs, progress, and special education services and supports. The only part of an “evaluation” submitted into evidence was a classroom observation done in September, 2010 (Exh. 4), and the CSE witness who participated in the review as school psychologist acknowledged that she did not review any evaluations done after 2007. Regulations require the CSE to evaluate a student at least every three years (8 NYCRR 200.4(b)(4). There is no indication of when the CSE last did an educational or psychological evaluation. No explanation or excuse was offered for the CSE’s failure to do timely evaluations. I find that is inappropriate for . I find that has significant deficits in reading, organization and processing, which require multisensory instruction, intense attention, small group instruction and modeling, repetition and re-direction, and other intense interventions, and I find that the proposed class is too large, and that does not offer the structure, attention and small group instruction which requires receive educational benefit and make progress. For the above reasons, I find that the IEP is substantively deficient, that the program and placement recommendations are not appropriate, and that the department of education denied FAPE to for 2011/12.
I find that ’s program is an appropriate placement for , even though it is not a State Education Department-approved program. The program offers the supportive, small class environment with multi-sensory curriculum and instruction, intense and small group remediation, and other modifications and supports required to address ’s academic and management needs and enable him to make progress; there is a low student-teacher ratio, and the staff regularly monitors students’ progress and modifies their programs to suit their developing needs. ’s teacher has special education certification. The students in ’s class have similar functioning levels and needs, and are put into small groups for intensive instruction. receives in , and his fine needs are addressed as part of the class curriculum. offers opportunities for parent involvement. The record indicates that has made significant progress at . The program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.
I find that equitable considerations also support an award of tuition. I find that ’s parent cooperated and communicated with the CSE, and made a timely hearing request. I find that the amount of reimbursement requested is reasonable. I do not agree with the department of education’s argument that the parent would not have considered placement in public school. I note that attended public school through grade, and that his academic performance there , and that it was reasonable for his parent to seek another placement after the public schools failed to address ’s needs.
The parent has thus met the three-prong Burlington/Carter test, but her request poses an additional issue: she argues that she is entitled to prospective tuition funding; i.e., that the Department of Education should pay directly for ’s tuition, notwithstanding the fact that Burlington and Carter are couched in terms of reimbursement. Burlington, supra, appears to sanction the further step of prospective payment: “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”
Recently, in D.A. vs. N.Y.C. Dept of Education , 09-CIV-5097 (SDNY, 2/1/11), the Court held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents. In Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” (Id. 806) The Court also notes that it is “beyond cavil” that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), held that the IDEA can compel a school district to disburse funds for the student’s tuition at a private school, and awarded a preliminary injunction ordering the district to “…make whatever financial arrangements are necessary…” to implement a hearing officer’s decision and place the student in anon-State-approved private school. See also Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court ordered the school district to place a student at the non-approved private school and pay the tuition at the school pendente lite, until the appropriateness of the district’s recommended program was decided by the district court. The court rejected the district’s contention that Burlington prohibited prospective payment during litigation, and concluded that the policies underlying the IDEA and its administrative process favor imposing financial responsibility upon the local school district as soon as there has been an administrative panel or judicial decision establishing the pendent placement. The court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education. “The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education…[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.” (Id. at 87))
I find the D. A., Connors and Sabatini decisions persuasive and conclude that the Department of Education may be required to directly or prospectively pay tuition to a non-approved private program after the Burlington/Carter tests are met, and the parent has shown by clear and convincing evidence that he or she cannot afford to pay tuition “up front.”
I conclude that since the Burlington/Carter tests have been met, and the parent has produced clear evidence that she cannot afford to pay tuition, the Department of Education shall fund ’s 2011/12 tuition at .
V. ORDER
IT IS THEREFORE ORDERED THAT: the Department of Education shall fund ’s 2011/12 tuition at in the total amount of $38,000. Dated: November4, 2011
__________________________
CRAIG TESSLER, ESQ.
Impartial Hearing Officer
CT:jj
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 Individual Education Program, 2/14/11, 17 pp. B Final Notice of Recommendation, 7/14/11,[1] p. C Request for Impartial hearing, 7/21/11, 3 pp. D Developmental pediatrician , M.D.’s Assessment Letter,
6/15/10,[2] pp. E Developmental Pediatrician , M.D.’s Child Development
Revisit Evaluation, 6/15/10,[3] pp. F Prepared by , Au.D., CCC-A,
6/7/10,[5] pp. G School Packet Including End-of-Year Report Card, Final Report, Writing
Third Trimester Progress Report, Social Studies Third Trimester Progress Report and Science Progress Report, 6/2011, 7 pp. H Individual Education Program, 4/19/10, 16 pp.
DEPARTMENT OF EDUCATION
4 Classroom Observation, 9/29/10, 1 p.
6 Omitted as Duplicative
Footnotes
[1] Omitted as Duplicative
[2] Response to Hearing Request, 7/28/11, 3 pp.
[3] Omitted as Duplicative
[5] School Various Materials, Fall 2010, 18 pp.