New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 20

Hearing Requested By: Parent

Date of Hearing: August 17, 2011

October 5, 2011

November 22, 2011

December 19, 2011

Record Close Date: January 3, 2012

Hearing Officer:

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

Advocate — Student

Chairperson Designee CSE — DOE

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

Attorney — Student

Chairperson Designee, CSE- — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2011

Advocate — Student

Parents

Chairperson Designee for CSE — DOE

Social Worker (via telephone) — DOE

Social Worker (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011

Attorney — Student

Advocate — Student

Parents

School — Student

School (via telephone) — Student

CSE District Representative — DOE

Social Worker (via telephone) — DOE

By Complaint dated June 28, 2011, the matter of . (“ ”) came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 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 program for 2010-2011, and to request direct payment for attendance at for 2010-2011.

The Complaint indicates that the District denied Free Appropriate Public Education (“FAPE”) by recommending a placement that did not have room for the child. The Complaint also alleges that the Committee on Special Education (“CSE”) did not consider available information provided by the student’s special education teachers, that the parent was not in agreement with the placement which does not provide individualized instruction, that the goals were not based on the student’s present levels of functioning, that the recommendation was based on an Individualized Education Program (“IEP”) drafted earlier on November 11, 2009.

After the resolution period, the Impartial Hearing Officer (“IHO”) asked the parties for dates within 14 days. (IHO Exh. 1) The parties did not respond to the IHO, who then scheduled the case for August 17, 2011. The parties appeared on August 17, 2011 and indicated that there was a need for additional investigation in the matter. The matter was set for October 5, 2011. The parties sought an extension of the decision date. The IHO determined that the applications for extension were consistent with the regulatory requirements in NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to October 10, 2011 (5). The parties appeared on October 5, 2011 and presented opening statements and submitted evidence. The parties indicated that witnesses were not available on this date. Both parties requested 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 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to November 10, 2011. The parties set hearing dates for November 22, 2011 and December 19, 2011. The parent sought to extend the timelines on November 7, 2011 on witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to December 9, 2011. (IHO Exh. 1) On November 22, 2011, the parent sought to extend the timelines again on witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to January 9, 2012. (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 stay-put \placement. There was no showing of any prejudice to the child or to the District in connection to the extensions.

FINDINGS OF FACT

The student has a that is manifested by . (92; Exh. 2) The student also has issues. (127) Previous testing indicated that the student was in the range for in both with some . (Exh. 3)

A CSE meeting was held on November 9, 2009. (46) The team changed the classification and the recommendation from Special Education Teacher Support Services (“SETSS”) to special class in a community school. (48) Teacher estimates were used from Ms. from the school. (50) Goals were discussed at the meeting. (51) No objection was made to these goals. (51-52) No objections were made to the recommendations of the team. (52-53) Goals were prepared by a school . (59) The meeting lasted about 15 minutes. (121) The parent felt the program was appropriate. (146-147)

The recommended location is . classes are included at the school. (29) Students were at a similar functioning level to the student in the class E-33. (33) Testing modifications were provided, students worked on goals similar to those in the student’s IEP. (34-35) Methods of measurement are filled out once the student attends. (36) There were students in the class. (37) A class was available for the student. (38) Children are in the class. (40) The class contains children in grades . (42)

When the parent visited the school she was told that the designated class was not a class. (125, 142) As a result, she was told that the District would be in touch with her to designate a new class. (143) The individuals at the school told her that there was nothing else that she could see. (144)

The parents signed a contract with on 9/14/10. (Exh. H) is a school for children with and . (75) Students get intensive instruction with an - approach, in -to- sessions, and - throughout different subject matter areas. (75-76) The instruction addresses .

(105) Students receive instruction four times a week in both English and

(118) Teachers are licensed, and there are teachers with training who taught the student. (77)

The student has . (77) She was able to write a simple sentence at the beginning of the year and was well adjusted in the classroom. (78) There was an assistant teacher in the classroom who was getting her Master’s degree. (78) There were students in the class. (78) Students received individualized instruction in math and reading. (79) Students received instruction in listening comprehension, creative writing, reading comprehension, independent work. (82) There are - sessions four days a week, individually. (83) There is work on math including multiplication and simple division. (84)

The student ended the year writing paragraphs that were informative, correct. (87) She . (87) The student’s grades were largely “ in all subjects from Ms. and largely “ and “ from Mrs. . (Exh. L) Teachers characterized her as a “ ” and a “ .” (Exh. L)

The school does not provide related services. (95) By and large, the school follows the goals on the IEP unless they are not appropriate. (96) There are only in the classroom. (97) Parent training is provided through workshops. (110) The student is now being mainstreamed, she is no longer at the school. (112) The parents paid tuition of $ for the year. (114) They have a debt to the school, they owe the money. (114)

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).

I have found that the parent tried to visit the school and was brought to a classroom that she thought had been recommended for the child. The parent was then told that the classroom in question was a , which is not the classroom that was indicated on the IEP. The parent sought to see another class at the school, and the District indicated that there was “nothing else” at the school for the parent to see. (143) There is nothing in the record to suggest that any further contact was ever made by the District to the parent in connection to the school placement offer, either by call or letter. The District has an obligation to provide the parent with a school location that will be able to implement the IEP. Placements must be identified and “finalized” by the start of the school year. Mr. and Mrs. A. v. NYC Dep’t of Educ., 746 F. Supp.2d 403 (S.D.N.Y. 2011); Bettinger v. NYC Dep’t of Educ., 49 IDELR 39 (S.D.N.Y. 2007). Districts should provide parents with a “clear, coherent offer.” Glendale Unified School Dist. v. California Dep’t of Educ., 122 F.Supp.2d 1093 (C.D. Cal. 2000). Further, it is important for a District to “work cooperatively” with the parent. T.Y. on behalf of T.Y. v. NYC Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009). Here, once the District suggested to the parent that the IEP could not be implemented at the school in question, the District should have followed up with the parent to clearly offer the parent a school location that could implement the IEP. I find that it did not. I note that the District bears the burden of persuasion in regard to the first prong of Carter/Burlington analysis.

The District indicates that the parent did not in fact visit the school, pointing to testimony and a review of security guard entries. However, I credit the parent’s testimony on this issue. The parent’s testimony was quite candid throughout. Moreover, during the parent’s testimony, the parent mentioned that she was taken to a classroom in the school by Mrs. . Mrs. then testified and denied meeting the parent. However, the parent testified with specific detail about Mrs. . In particular, the parent testified that Mrs. had . Mrs. confirmed that she in fact . There is nothing in the record to indicate that the parent could have known about this injury other than to have met Mrs. at the school. I will note that IHOs have the authority to make such credibility determinations. Mr. and Mrs. A. v. NYC Dep’t of Educ., 746 F. Supp.2d 403 (S.D.N.Y. 2011)

Given the above, the District did not offer the parent a FAPE for 2010-2011. As a result, 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 special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record reveals that the student has difficulty with reading and writing. Students at get intensive instruction with an approach, in sessions, and instruction throughout different subject matter areas. The instruction addresses reading, writing, spelling and comprehension. The student has . The student . The student’s grades were largely “ in all subjects from Ms. and largely “ and “ from Mrs. . Teachers characterized her as a “ ” and a “ .” The record establishes that the program provided special education services that met the student’s special education needs.

The District protests that the school does not provide related services. However, the parents do not have to provide every service required by the District to meet the standard under Gagliardo. Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, which was deemed appropriate by SRO; District had recommended speech therapy) Nor do parents need to show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). As the Circuit stated in Gagliardo:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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.

Gagliardo, 489 F.3d at 112 (emphasis added).

The record shows that the parental placement addressed the student’s most significant special education needs. It should be noted that the record does not clearly establish the student’s special education needs in terms of and therapy and therapy. The District did not call any witness to establish that the student has such special education needs. Parenthetically, a report indicated that the student had appropriate receptive and expressive skills in 2008. The parents prevail 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. 04-07.

The District does not posit a specific argument in connection to equities. I have reviewed the record and I determine that the parent acted cooperatively with the District in all respects. As a result of the foregoing, the parent prevails on the third prong and is awarded tuition payment for 2010-2011. Dated: January 9, 2012

____________________________

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 ON OCTOBER 5, 2011

PARENT

A Hearing Request, 6/28/11, 4 pages B School Description, 10/2011, 1 page C Mission Statement, 10/2011, 1 page D Ten Day Notice, 8/18/10, 1 page E Placement Letter and Fax, 1/27/10, 2 pages F Final Notice of Recommendation with Handwritten note, 2 pages G School Affidavit, 9/19/11, 1 page H Enrollment Contract, 9/14/10, 1 page I Class Profile, 12/22/10, 1 page J Class Schedule, 2010/2011, 1 page K Attendance Record, 2010/2011, 1 page L School Progress Report, 2010/2011 M 2010 Tax Return Extension, 4 pages N Article on O Article P Paradigm

DEPARTMENT OF EDUCATION

1 IEP, dated 11/9/09, 12 pages 2 - Eval, 7/9/08, 4 pages 3 Eval, 7/9/08, 4 pages 4 Report, 3/15/08, 1 page 5 Criteria 6 Observation, 11/5/09, 3 pages 7 Final Notice of Recommendation, 7/14/10, 1 page