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: November 17, 2010

September 15, 2011

October 18, 2011

November 2, 2011

November 4, 2011 Actual Record Close Date: December 16, 2011 Hearing Officer: Veronica C. Odom, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2010

Attorney — Student

District Representative — DOE

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

Attorney — Student

Parents

Attorney — DOE

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

Attorney — Student

Parents

Director- — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2011

Attorney — Student

Teacher — Student

, SEIT

, Parent

For the Department of Education: , Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4, 2011

Attorney — Student

Parents

Physical Therapist — Student

Attorney — DOE

The matter of . (hereinafter “the student”) came before me for determination on November 17, 2010, July 27, 2011, September 15, 2011, October 18, 2011, November 2, 1011, and November 4, 2011, in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on February 24, 2011. I was assigned this matter on February 25, 2011. The parents requested this hearing alleging that the Department of Education (DOE) failed to provide the student with a free appropriate public education (FAPE) for the 2010-2011 school year, and seeking tuition reimbursement for the along with transportation.

The compliance date was extended as a result of requests for additional hearing dates in order for the parties to prepare and present their cases and for the submission of briefs. Additional time was necessary for a full, fair disclosure of the facts required to arrive at a decision in this matter. The record close date is December 16, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, . was a year old student with a classification of by the New York City Department of Education (hereinafter “DOE”) Committee on Special Education (CSE) at an annual review meeting held on April 22, 2010. The CSE recommended a 12:1:4 program in a special class in a specialized school with related services (Exh. CC).

In a due process notice dated, February 24, 2010, the parent through her attorney, alleged that the CSE committed both procedural and substantive errors in creating the student’s Individualized Education Program (hereinafter “IEP”) for the 2010-2011 school year, resulting in a denial of a free appropriate public education (hereinafter “FAPE”) (Exh. 1). The parents placed their son at the for the 2010-2011 school year and are seeking tuition reimbursement, the provision of home-based related services and transportation.

THE POSITION OF THE PARTIES

The District representative, , Esq., acknowledged that the Department of Education (DOE) failed to offer the student a free appropriate public education (FAPE) for the 2010-2011 school year, but that the parents’ placement failed to provide the student with an appropriate education and is therefore not entitled to tuition reimbursement.

The parents’ attorney, , Esq., maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that the is appropriate, and that the equities favored the parents, and that reimbursement of the 2010-2011 tuition should be ordered.

DEPARTMENT OF EDUCATION’S CASE

The DOE’s representative, , Esq. conceded that the DOE did not offer the student a FAPE (Tr. at 26-27). No evidence was presented on the DOE’s behalf.

PARENT’S CASE

The parent’s attorney Esq., presented the following documents, inter alia, Description (Exh. D), Letter with Recommendation of Related service providers (Exh. M,N, O, P), Tuition Agreement (Exh. H).

The student was born with which is characterized by , , , , , , , , and (Exh. I).

Dr. , director at , testified that the school serves children ages through (Tr. at 43).She stated that the school has , and offers related services (Tr. at 46-47). She stated that the student was in , a class, which individualized the curriculum specifically to address .’s needs (Tr. at 51). She further stated that . uses a lot of tactile equipment in the class, sits in a special chair with a modified desk (Tr. at 52).

She stated that related services were provided by a contract agency, but ( ) was provided through an because the contract agency was unable to provide the service (Tr. at 60).

She further stated that .’s improved, and his ability to complete tasks, and complete them independently with as well (Tr. at 67).

, teacher, stated that she has B.A. in special and elementary education and a second major in English (Tr. at 78). She stated that . was one of her students during the 2010-2011 school year. She stated that . requires a approach, and is becoming more ambulatory, and his and skills have improved (Tr. at 80-1). She stated that in September 2010 he was using a walker and by May he was able to walk while holding someone’s hands, and at the beginning of the school year he was unable to pick up a pencil, but was able to pick it up and write by the end of the school year (Tr. at 81, 86).

She further stated that the student’s are addressed by providing larger pencils and crayons and lacing beads (Tr. at 87). She stated that number recognition, matching numbers were skills that . worked on (Tr. at 89). She stated during the 2010-2011 school year . was able to recognize his name, turn pages of a book, recognize letters and point to a corresponding picture (Tr. at 93). She further stated that the use of board books are easier for . to manipulate (Tr. at 93).

She stated that a typical day begins with the students choosing a book and sitting at their desk, attendance, morning circle, which consists of calendar, weather, days of the week, developing , outside playground, math, lunch, reading, arts and crafts, social studies, science or media (Tr. at 105-6).

She stated that all of .’s related services are pull out, and that she speaks with them on a daily basis (Tr.at 111, 114). She stated that the home-based service provider would send in notes which she forwarded to the school service provider (Tr. at 115). She stated that provision of the services at school and home . has made progress (Tr. at 116).

She stated that the academic levels of .’s classmates were first grade and second grade in reading, from 5- 7 years in age, and classified as , , and (Tr. at 112-113).

, SEIT, testified that she has a B.A. in early childhood education and Master’s in special education and is NYS certified in special education (Tr. at 120). She stated that she has been .’s SEIT since 2009, at home (Tr. at 122). She stated that she worked with the student five times a week during the 2010-2011 school year (Tr. at 123). She further stated that she uses a lot of interactive play, teaches . vocabulary, utilizes manding, and that the student has increase his vocabulary, signing, tacting, backward chaining (Tr. at 124-126). She further stated that during her sessions with . working on labeling, number concepts, signing with constant reinforcement and repetition (Tr. at 128-129). She reported that given the improvements . had made the at home SEIT services should continue and that he needed intense one on one instruction to avoid regression (Tr. at 137-138, Exh. M).

On cross, she acknowledged that she had never observed the student at the , and that she communicates with the teachers using a notebook (Tr. at 141).

, , testified that she is a license physical therapist and provide service to the student at home twice a week (Tr. at 149). She stated that the student has and , has (Tr. at 152). She stated that the techniques she used to address .’s helped him make progress (Tr. at 152-162, Exh. O).

The parent testified that her son was born with an called and given a . He has , trouble going to the in and is (Tr. at 173). She stated that during the 2010-2011 school year her son , able to and to (Tr. at 174).

In 2011, the student’s teacher, prepared evaluation, recommendations, and progress reports similar to those generated in 2010 which included updated information regarding the student’s goals, and observed progress (Exhs. J & U, K & S,M-AA).

The provider reported that she provided the student with services twice a week for an hour, and that when she began working with him he did not sign and by August 2010 was able to approximate ten signs. She reported that worked on , and (Exh. N). She also reported that the student has made moderate gains, and is able to imitate signs, answer yes or no questions by , but is unable to express himself age appropriately (Exh. U). She concluded that any change in the student’s educational plan will

In a letter dated July 12, 2010, the parent informed the DOE that she did not deem the recommended placement appropriate, but would place him in an appropriate DOE recommendation if offered, and that she was placing her son in the Seton Foundation and seeking tuition reimbursement (Exh. C).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prong One- Did the New York City Department of Education offer the student a free appropriate public education for the 2010-2011 school year?

I find that the Department of Education failed to offer . a free appropriate public education for the 2010-2011 school year.

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and ensures that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400 [d] [1] [A]; Schaffer v. Weast , 126 S. Ct. 528, 531 [2005]); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982); see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009].

A free appropriate public education includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program(IEP) (20 U.S.C. § 1401(9); 20 U.S.C. § 14149(d); 34 C.F.R. § 300.13. A school district offers a student a free appropriate public education when (1) it complies with the procedural requirement 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). The student’s recommended program must also be provided in the least restrictive environment (LRE) 920 U.S.C. § 1412[a][5][A]; 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]).

The DOE representative, Ayodele Rashid, Esq., conceded Prong I of Carter, that the DOE failed to offer . a FAPE (Tr. at 26-27).

Accordingly, the record supports the finding that the offered placement did not provide the student a FAPE for the 2010-2011 school year. Prong 2- Was the parents’ placement appropriate?

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance “had it offered the student a FAPE” (Burlington, 471 US at 370-71). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 9420). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo, 489 F. 3d at 112; see, M.S. v. Bd. Of Educ., 231 F.3d 96, 104[2d Cir. 2000]). Parents need not show that the placement provides every special service necessary to maximize the student’s potential (Frank G., 459 F.3d at 364-65).

The Second Circuit has set forth the standard for determining whether parents have proved their burden of demonstrating the appropriateness of their unilateral placement.

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; see, Frank G., 459 F.3d at 364-65).

The parent presented credible testimonial and documentary evidence that the is meeting the student’s special education needs, which include providing him with supports that are specially designed to address his academic, daily life skills, and social emotional needs (see also Exh. D-F). The parents also presented evidence of the student’s academic, social-emotional and physical progress (Exhs. R, S, T, U, V, W, X Y, Z)

The student’s , , , are being met at the school which is providing him with instruction specially designed to his unique needs (Gagliardo, 489 F. 3d at 112), (see, Frank G. 459 F. 3d at 364-5)).

The home-based services are appropriate and necessary for . given his . The parents submitted credible evidence that .’s , and require a as well.

The District did not present any witnesses or evidence to contradict any of the statements of the parents, witnesses or documentary evidence. The parent prevails on the second criterion. Prong three- equitable considerations

Once it has been determined that the DOE failed to provide the student FAPE, and that the parent’s placement of the student is at the Seton Foundation is appropriate, a determination must be made as to whether equitable considerations require the DOE to reimburse .’s tuition for the 2010-2011 school year. Where a student is not provided with FAPE and his private school placement is appropriate, an impartial hearing officer has “broad discretion in considering the equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112.

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. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, 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 District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04-071.

Here, the record reflects that the parent fully cooperated with the DOE. The mother participated in the April 2010 CSE review. The parent also visited the DOE’s offered placement and notified the DOE that she found the placement inappropriate and that it would not meet her son’s needs, and that she was open to other DOE recommendations (Exh. CC, C).

Based on the record before me, the equities weigh in favor of the parents and the DOE shall reimburse the parents for the 2010-2011 tuition for the student at the Seton Foundation Learning Program, transportation and the home-based special education services.

ORDERED, the Department of Education failed to offer the student a free appropriate public education for the 2010-2011 school year.

ORDERED, the Department of Education is to reimburse the tuition for the 2010-2011 school year;

ORDERED, the student was entitled to receive bus transportation from the Department of Education during the 2010-2011 school year.

ORDERED, the Department of Education shall reimburse or issue RSAs for the homebased services of: therapy (2 X 60); therapy (2 X 60); and ten hours per week of SEIT.

ORDERED, the Department of Education shall reimburse the parents within 15 days of the parents’ submission of proof of payment. Dated: January 4, 2012

_______________________________

VERONICA C. ODOM, ESQ.

Impartial Hearing Officer

VCO: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 Hearing Request, 8/30/10, 6 pp. B IEP, 1/25/10, 20 pp. C Parent's Correspondence to CSE with Proof of Mailing, 7/12/10, 3 pp. D Program Description, 2010-2011, 4 pp. E Ccurriculum for the Student, 2010-2011, 2 pp. F Class Schedule for Seton Foundation, 2010-2011, 1 p. G Attendance Record for for the Student, 2010-2011, 1 p. H Tuition Agreement and Promissory Note Between the Parent and , 8/31/11, 2 pp. I Book on Emanuel Syndrome, 4/20/07, 15 pp. J Progress Report of Jeanette DeBase, 4/25/10, 3 pp. K Education Progress Report from the SEIT, , 5/19/10 L Educational Evaluation, 8/9/10-8/11/10, 2 pp. M Letter of Recommendations to the SEIT, , 8/1/10, 3 pp. N Letter of Recommendation from the , 8/28/08, 1 p. O Letter of Recommendation to the ist, 2 pp. P Recommendation from on Letterhead,

9/24/10, 1 p. Q on Learning IEP, 10/22/10, 6 pp. R Progress Report, 2/20/11, 5 pp. S Educational Report, 2/28/11, 3 pp. T Related Service Provider Progress Report for , 4/12/11, 1 p. U Progress Report Record of , 4/15/11, 1 p. V Classroom Teacher Student Evaluation Form, 5/11/11, 1 p. W Related Service Provider Student Evaluation Form for , 5/10/11, 3 pp. X Related Service Provider Student Evaluation ,

5/11/11, 4 pp. Y Related Service Provider Student Evaluation Form for , 5/16/11, 4 pp. Z Related Service Provider Student Evaluation Form for the Health Paraprofessional, 5/17/11, 1 p. AA SEIT Progress Report, 5/25/11, 5 pp. BB Correspondence from the New York City Department of Education to the Parent,

9/6/11, 1 p. CC IEP, 4/22/10, 35 pp. DD 2010-2011 Related Services Schedule at ,

2010-2011, 1 p.