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: July 7, 201

September 22, 2011

November 16, 2011 Actual Record Close Date: January 6, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 7, 2011

Attorney — Student

Licensed Social Worker/Department Designee — DOE

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

Attorney — Student

Mother — Student

Department Designee — DOE

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

Attorney — Student

Mother — Student

Assistive Technology Provider — Student

Department Designee — DOE

— DOE

INTRODUCTION

On July 7, 2011, September 22, 2011, and November 16, 2011, I conducted hearings, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. section 1415 (f)(3) regarding the Special Education Program for Students with Disabilities, New York City Impartial Hearing Case The hearing was conducted at the impartial hearing office, New York City Department of Education, 131 Livingston Street, Brooklyn, New York.

The student‟s parent‟s submitted a request for an impartial hearing through their attorney on December 23, 2010. Appearing for the Department of Education, hereafter referred to as “The Department” was Dr. , Department Designee, and the Parent was represented by its counsel, , Esq. A list of witnesses and documents received into evidence is attached, hereto.

BACKGROUND

The student is currently a ) year old female, classified as “ ”. On June 2, 2010, the Committee on Special Education, hereinafter referred to as CSE met to discuss the educational needs and to develop an individualized education program IEP for the child, hereinafter referred to as “ ”. Recommendations were made for general education with related services of therapy (3 x 30 x 1), therapy (3 x 30 x 1), therapy, (3 x 30 x 1) and a health professional. The parents received placement recommendation for School. The parents maintained that the recommendation failed to provide the child with communication education technology associate (CETA) services and for a smaller school environment. Further, without these essential services, the parent maintained the child would be unable to function in a school environment. The parents opted to continue the child‟s placement at the to address special education needs.

The parents are seeking reimbursement for services and the provision of transportation and related services which are previously been provided to the child.

THE PARENT’S POSITION

As stated above, in the introduction herein, parent maintains that the IEP was invalid and that a proper recommendation was not made for their child. More particularly, parent is seeking for services provided by Dr.

THE DEPARTMENT’S POSITION

The Department, on September 22, 2011, conceded Prong I of the Burlington/Carter Test and the only issue to be determined is whether or not the program provided to the child was appropriate and if there are equitable considerations that would prevent an award for reimbursement.

THE PARENT’S CASE

The first witness to testify after being duly sworn was Dr. , who stated that she has a Bachelor of Science Degree and Masters Degree in Speech and Language Pathology from Brooklyn College a Masters in Philosophy and a Doctorate in Speech and Hearing Sciences, specializing in augmentative and alternative communication technology from the City University of New York. Additionally, she has a Jurist Doctor from Cordozo School of Law (trans. 23). The witness also stated that she maintains a National Certification for Speech and Hearing Sciences from the American Speech and Hearing Language Association and Certification for a Speech and Language Pathologist in New York. (trans 24).

The witness further stated that she worked as a Related Service Provider for the Department. In that capacity; she would assist to customize an educational program for students wherein the Parent maintained that she is uniquely qualified to provide services. She also works with a neuropsychologist in performing educational assessments (trans. 26).

Dr. stated that she has been working with the child for approximately 14 years. When she first met , she was not , as she has and is . She was consulted with to ascertain if there was a way that she might be able to utilize her skills via technology in in order to . (trans. 27).

Dr. began to work with the child in a readiness for children that before they were ready to begin (trans. 28). She realized that with potential and she began an program. The witness further stated that she customized an approach that required in order to be fully included in her community school. She began grade at the , which consisted of a .

The witness stated that she participated in the child‟s IEP meeting on June 2, 2010 via telephone, and has a recollection of the meeting (trans. 29). It was her recollection that there was a consensus the child required services five days a week, in assistive technology services five times per week (trans. 29).

Dr. further stated that the services are provided on a daily basis and include multiple sessions; more particularly, when services are being provided, the setting up and programming the devices take at least 40 minutes and that it was her understanding that the team agreed that the technology was working (trans. 30).

Upon further questioning of the witness, she was directed to page 6.1 of the IEP wherein she identified her goals which consisted of four pages and were incorporated into the IEP (trans. 30). Further, she stated there was a nexus between the goals for assisted and language goals that were prepared as the is inextricably tied to communication challenges. Further, as the witness is both a pathologist and an educational specialist, she stated that she was uniquely qualified to provide the services (trans. 41).

Dr. described the goals written in the IEP as covering in terms, for example of her ability to speak about things on a more productive level, in terms of thought, being more focused and looking at other peoples perspective in her ability to deal with humor, in terms of just expanding her , as she was operating on a very concrete level (trans. 33). With respect to , there were concepts and devises introduced to the child regarding her use of , so that she could use her as the academics become more difficult and that the physical task of typing began more (trans. 33). The child was also being taught the , as the were made to get more energy into her and the skills in developing same (trans. 34).

Paraprofessionals were supervised by the witness in every single subject area, in order to customize adaptations on a daily basis. Further, in a full inclusionary environment, teachers would not be expected to understand how to provide the needs for the child as described above, and the witness stated “that was part of my job”. There were no objections at the IEP meeting as to the services she had recommended; on the contrary, there was “total agreement” (trans. 35).

Dr. stated the child made remarkable progress and described it in one word “ ”. More particularly, she had ; the child worked . There was a resource room assigned to every subject area and her day was very long (trans. 36).

Upon further questioning of the witness, she stated that the child could not have made educational gain without the services being provided by her and that she still requires the services and the customization that no one else can provide (trans. 36).

Dr. stated that she provided 22 billable hours of service every month; however, in actuality it was more like 45-50 hours of service (trans. 38).

The witness described in great detail a typical day, and program that was utilized with the child and how accommodations were made for simplification of task. She also stated that her hourly rate is the accepted rate for people in her field (trans. 38).

Upon cross examination, Dr. stated that during the 2010/2011 school year she did not provide any as there were no . She qualified her answers stating that although there were no , the child did take a , wherein she provided tutoring services, however same was provided after hours. (trans. 39). With respect to the 22 hours of billable hours, instruction was provided in English (trans. 40). Dr. clarified that her billing was $ per month which translated to $ per session, and 22 sessions per month. She described a session as being far longer than an hour. Some of the services were for , however much more was for intervention (trans. 42). Dr. stated that most of the sessions were held at school; however some were done at her home, and occasionally at her office. Services were “pull out” as opposed to “push in” services (trans. 43). She further stated there was a resource hour attached to every academic area, and that she and the child were given their own room, where her technology was kept and was provided extended time for her tests etc. (trans. 44).

The witness stated that she would provide at least two and a half hours of service on a daily basis with the child at school, however that she and the training professional would spend approximately four and a half hours in tandem. (trans. 45).

The witness described the child‟s school day from 8am to 5:30 pm or 6:00 pm (trans. 46). Additionally, the Principal of the school was described as being very accommodating, in dedicating resource room either before or after one of her academic subjects (trans. 47).

Upon further questioning of the witness by the undersigned, she described the equipment that the child utilized, including a lap top computer, scanners, and printers, with very sophisticated software. She required Kursweil Software, Dragon, Naturally Speaking, Co Writer, Word Prediction, Calculator, Scientific Calculators, Word Processing, Microsoft Word and Excel (trans. 50).

The next witness to testify was the child‟s parent, hereinafter referred to as Ms and after being duly sworn, she stated that she was present during Dr. ‟s testimony and that she provided at least 22 sessions per month for her child, during the 2010 / 2011 school year. (trans. 53).

The Parent stated that she attended the IEP meeting for the 2010/2011 school year, and understood that the committee incorporated the child‟s and communication/assistive technology goals into the IEP. Further, the Department did not offer any professional to provide either assistive technology or services (trans. 53).

Ms. stated that as a result, she and her husband hired Dr. and that they received bills in the sum of $ per month and that the bills were paid for.

The Parent further stated that her child succeeds in her daily academics due to the assistive technology which has been provided for her. The computerized programs and the integration of the programs into her learning experience, wherein her child has become an “ ” student (trans. 55).

Lastly, Dr. stated that she has been paid in full for the 2010/2011 school year in the sum of $

THE DEPARTMENT’S CASE

The Department failed to provide any witnesses in connection with the instant hearing and as stated above, conceded Prong I of the Burlington Carter Analysis.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frang G. v. Bd. of Edu. 459 F. 3d 356 371 92d Cir. 2006). A FAPE includes special education and related services designed to meet the student‟s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 „d‟ ; 34 CFR Section 200-347_. The student‟s recommended program must also be provided in the east restrictive environment (LRE) (20 U.S.C. section 1412 [a][5]aA]; CFR section 300.13 [a][2][i], 200. 1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998]

I will not repeat the details of evidence where but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above.

I have considered the testimony of all of the witnesses who testified at the hearing. With respect to the issues presented at the hearing, I make the following findings of fact.

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child‟s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent‟s claims (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] “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 developed a proper IEP”.

Under the second criteria of the legal standard, the child‟s parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal No. 93

34; Application of a Child with a Disability , Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child‟s special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent‟s private placement is that it is appropriate not that it is perfect (M.S. v Bd. of Educ. 231 F. 3d 96, 105 [2d Cir. 2000] cert. denied 532 U.S. 942 2001. the private school need not employ certified special education teachers, nor have its own IEP for the student. While parents are not held as strictly to the standard of placement in the as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

The final criterion of ran award of tuition reimbursement is that the petitioners‟ claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005] aff‟d 2006 WL 2334140 (2d cir. 2006);‟ Frank G. 459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Edu. 226 F. 3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties‟ positions and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff‟d 471 U.S. 359 [1985]; with respect to equitable considerations, 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 fining of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)(iii) Warren G. v. Cumberland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. of Edu. Appeal No. 04-102; Application of the Bd. of Educ.

Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C) (iv)(I)(cc)(II)(bb).

Parents maintain that the Department failed to offer a FAPE that was “reasonably calculated to meaningfully address ‟s unique and individual needs for and assistive technology related services supports, which would amply conform to the second circuits “reasonably calculated test for Prong II; and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III) Accordingly, the Parents maintains that for the 2010-2011 they met the recognized test for Burlington/Carter reimbursement relief.

A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised of full evaluations an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer. 34 C.F.R. sections 300.111, 300.116. In the instant matter the Department conceded Prong I and the Department‟s position is that the parent must prove Prong II and Prong III.

Under the second criteria of legal standard, as stated above, the Parent bears the burden of proof with regard to the appropriateness of the services which the parents obtain for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Education of the Monroe Woodbury CSE Appeal No. 93-93; Application of a Child.

I find that the parents have met their burden in proving that the services that they have unilaterally chosen for are appropriate. The testimony from Dr. provided detailed information about the school and the testimony was credible regarding the educational services provided to and explained how the services meet her identified needs. The Parents have established that the program implemented by Dr. for and programs are appropriate and that the child is making meaningful educational progress, as stated more particularly above.

Equitable considerations for the fact finder to consider in determining whether reimbursement and related relief is appropriate “include the parties” compliance or non compliance with state and federal regulations pending review, the reasonableness of the parties‟ positions and like matters.” See Application of a Child with a Disability Appeal NO. 05-087 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp. 2d 530, 533 (N.DE.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773 , 801-02 (1st Ci9r. 1984) aff‟d 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See spra, Appeal No. 05-087 (referencing Application of the Board of Edu. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).

Frieda‟s parents complied with every request for evaluation or assessment made, acted reasonably, and cooperated at every stage. Accordingly, the Prong III equities amply support the parents.

Based on the evidence and testimony at trial, the relaxed standard of and for all the foregoing reasons, I award full reimbursement as herein ordered. 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

PARENT

A Parents Sworn Verification of Provider‟s Affidavit, 2/15/2011, 1 p. B Parents Affidavit, 2/15/2011, 2 pp. C Provider‟s Affidavit and Parents Verification of Service, 2/15/2011, 2 pp. D Inovices from Dr. Along with Copies of Checks, Various Dates, 7 pp. E Cancelled Checks Made Payable to Dr. , Various Dates, 7 pp. F Inovices from Dr. Along with Check 2/2011-6/2011, Various Dates, 5 pp. G Cancelled Checks Made Payable to Dr. , Various Dates, 5 pp. H Provider‟s Affidavit and Parents Verification of Service (2/2011-6/2011), 6/30/11,

2 pp.

DEPARTMENT OF EDUCATION

1 IEP, 6/2/10, 17 pp. 2 Evaluation, 5/7/09, 6 pp. 3 Assessment, 4/24/09, 2 pp. 4 CSE Review Minutes, 6/2/10, 1 p. 5 Final Notice of Recommendation, 6/4/10, 1 p.