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 29, 2011

February 8, 2012

Record Close Date: February 21, 2012

Hearing Officer: Leah Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2011

Advocate — Student

Chairperson's Designee, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2012

Educational Advocate — Student

Parents

Principal (via telephone) — Student

Chairperson’s Designee, CSE — DOE

Procedural Context — DOE

On August 17, 2012, I was appointed to hear the matter of .”) versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, (“IDEIA”) 20 U.S.C. Section 1415 (f)(1). Prior to the commencement of hearings on November 29, 2011, the Department of Education conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Due to this late notice, the Parents’ witnesses were unavailable and a new hearing date scheduled. On February 8, 2012 the Parents presented their direct case and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to February 21, 2012. In furtherance thereof, the Parents maintain that the (hereinafter “ ), a non-public school placement, is both suitable and appropriate for their child. Exh. A. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief. A list of persons in attendance and of evidence is appended hereto. The Parents’ Case testified as lead witness on behalf of the Parents. Ms. is the Principal of The witness holds a Master’s degree in reading. In her capacity as Principal, Ms. is responsible for supervising curriculum, interfacing with parents and supervising instructional staff. As such, Ms. s was familiar with . and his classes. During the 20102011 school year, there were eight classes, grades one through eight at . The witness testified that each class was staffed with a certified special education teacher as well as a teaching assistant. During small group instruction, an additional instructor joined the class. She noted that state standards and curriculum are utilized at . During the 20102011 school year, . was assigned to a third grade class reflecting this paradigm.

The witness noted that although was , he was highly , requiring frequent . Beyond this, Ms. suggested that . may be demonstrating as well. She noted that the child was able to function at grade level in math, but which were delayed by approximately one year. These deficits were addressed through specialized services provided by experts in literacy and reading. February 8, 2012 Tr. at 19. As . had demonstrated grade appropriate skills in math, a mainstreaming opportunity was incorporated into the child’s academic programming. This was unsuccessful, however, as was unable to cope with the increased number of students and reduced classroom support, notwithstanding supplemental supports and modifications. Tr. at 23-24.

During the 2010-2011 school year, the witness testified that standardized measures of reading ability reflected approximately one year of growth for the child. In addition, . began to progress emotionally and socially. I bid. at 27. Report cards and assessments were generated three times a year and additionally supplemented by anecdotal assessments.

Referencing the child’s April 27, 2010 Committee on Special Education (“CSE”) convene, Ms. testified that had essentially followed the goals and objectives incorporated into the Individualized Education Program (“IEP”) generated at this time. Exhs. 1, C. She believed these goals were appropriate and, in furtherance thereof, the witness maintained that . had received an appropriate education at during the 20102011 school year.

On cross-examination, Ms. noted that .’s class had been co-educational. Although related services of and had been recommended for ., she believed he had only taken advantage of the counseling services. itself does not offer and individual services and the witness was uncertain whether he had obtained them through OMNI, a related service agency which apparently serviced her school during the time in question. Tr. at 39- 43.

Mrs. ., the child’s mother, testified. Mrs. . testified that she participated in the CSE convene of April 27, 2010. Tr. at 49. Thereafter, a Final Notice of Recommendation dated June 29, 2010 was sent to her with a placement recommendation for . The Parent testified that she visited this placement and was disturbed by the lower functioning levels of the class which reflected two different grades and students with physical handicaps. Mrs. . testified that she did not believe her child would receive either the requisite academic or social stimulation to progress appropriately during the school year. In response, a ten-day notice was forwarded to the Department of Education on August 18, 2010. On September 15, 2010, the Parent made her first payment to . Exh. J.

The witness testified uncertainly as to what related services . was receiving at as she has five children who receive various services. Tr. at 56. Although she testified that she had wanted to place mainstream school, as early as kindergarten, she remained open to opportunities offered by the Department of Education. The Parents’ Position

The Parents, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985 maintain that the educational program at is appropriate for their child. Consistent with their position, the Parents maintain that there are no equitable factors which militate against their recovery in this matter. The Department of Education’s Position

Notwithstanding its concession of prong one of Burlington, supra, the Department of Education maintains that the Parents’ educational program at is inappropriate. The Department of Education further maintains that the Parents have not met their equitable burden.

Discussion

The Second Circuit has specifically set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). 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). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02111).

Although it is clear that the District’s placement must comport with its Least Restrictive Evvironment (“LRE”) requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the program offered at correlates well with the student’s academic needs, as identified by both the child’s IEP and Ms. , a credible witness familiar with both the child and his class. The child’s deficits in reading are addressed appropriately within small classes instructed by individuals with expertise in literacy and remedial reading. The IEP’s goals are incorporated into the program and followed. Standardized testing is utilized to assess progress on a routine and regular basis while parents are provided with feedback several times a year. Although the District maintains that is not an appropriate placement, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). During the 2010-2011 school year, Ms. testified that . had progressed significantly with his reading skills, an opinion shared by the Parent. In this respect, testimony regarding the student’s progress is credible and uncontroverted.

While there is some question as to what related services the child was actually receiving on site, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). Clearly, the child is receiving his counseling mandate, and in this regard the child has benefitted by demonstrating a greater ability to behave appropriately during the school day. February 8, 2012 Tr. at 27. Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 20112012 school year?

I find that there are no equitable factors which militate against the Parents’ right to recovery. The evidence indicates that Mrs. . participated willingly in her son’s CSE convene. When a recommendation was made, beyond the sixty day window permitted by the IDEIA, she visited the placement and shared her concerns. There is, moreover, no indication in the record that the Department of Education disputed these concerns or ever attempted to address them with the Parent. Mrs. . has worked collaboratively with the Department of Education, exchanging private evaluations when available. Exh. 2. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition. Conclusion

The Parents’ request is granted.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the Department of Education shall reimburse the Parents, upon due proof of payment, for the cost of tuition at the of for the 2010-2011school year in the amount of $21,280.00, said sum representing approximately a 20% reduction from the full tuition amount representing time spent during religious education.

The Parents shall be deemed the prevailing party.

Dated: February 22, 2012

____________________________________

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LA:dl

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 NOVEMBER 29, 2011

PARENT

A Impartial Hearing Request, 8/15/11, 4 pages B Program Description, undated, 1 page C IEP, 4/27/10, 14 pages D FNR, 6/29/10, 2 pages E Ten-Day Notice, 8/18/10, 1 page F Class Schedule, 10/11, 1 page G Class Profile, 10/11, 1 page H Affidavit of Payment, 10/11, 2 pages I Parents Proof of Payment, 10/11, 7 pages J Enrollment Contract, 10/11, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 4/27/10, 14 pages 2 Evaluation, 5/08, 8 pages 3 Report, 4/10, 1 page 4 Report, 3/23/10, 1 page 5 Teacher Report, 4/13/10, 1 page 6 Observation, 4/19/10, 1 page 7 8 7 FNR, 6/29/10, 1 page 8 CSE Minutes, 4/27/10, 1 page