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 22, 2011

Record Close Date: December 31, 2011

Hearing Officer:

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

Attorney — Student

Observer — Student

Parents

Educational Coordinator, (via telephone) — Student

Lead Teacher, (via telephone) — Student

(via telephone) — Student

Pathologist (via telephone) — Student

Social Worker — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (―IHO‖) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (―IDEA‖) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a unilateral placement case in which the Parent is seeking reimbursement for tuition for the 2011-2012 school year and make up sessions in therapy and instruction time for the summer of 2011. The Parent’s Position

The Parent’s position is that the District denied the Student a Free Appropriate Public Education (―FAPE―) for the summer of 2011 and the 2011-2012 school year. Even though an Individualized Education Program was ostensibly created, there was no actual placement and services for the summer were limited. In the Complaint Notice of September 2, 2011 (Parent’s Ex. A), the Parent alleged that the District failed to develop an appropriate Individualized Education Program (―IEP‖) for the Student; the current one does not address all of the Student’s specific needs or provide the necessary accommodations; the District did not recommend an appropriate placement for the Student; the District did not implement meaningful and measurable annual goals; the District did not provide reports of the Student’s progress and did not give the Parent the necessary information to participate in developing the IEP; the District did not offer a program with research-based methodologies; the District did not recommend an appropriate Extended School Year Program and offered a placement after the summer session started; the District did not provide training and counseling for the Parent, as required by Section 200.13 (d) of the Regulations of the Commissioner of Education for students with autism, which has contributed to denial of a FAPE; and the District did not conduct a (― ‖) or a (― ‖). In the Complaint Notice, the Parent requested the relief of annulment of the current IEP; development of a new IEP ― that provides a program that includes highly trained staff including Board Certified Behavior Analysts (―BCBA‖), implements an (― ‖) methodology, small class structure that allows provisions of instruction, a component, a , training, instruction, appropriate levels of services incorporated throughout the day, at appropriate levels, co-treatment so related service goals are included in classroom activities and objectives, , inclusion opportunities with non-disabled peers, opportunities to participate in activities in the community, multidisciplinary group instruction, participation in music, parent educational support and training, and support for other family members,‖ and provision in the IEP to establish the Student’s placement at his current school; reimbursement of past payment and payment for the remainder of the Student’s tuition at his current school for the 2011-2012 school year; ―development of current and accurate present levels of educational performance and appropriate, measurable goals and objectives to address the student’s needs, including identification of appropriate methodologies to address those needs,‖ a comprehensive Functional Behavior Assessment and a , which would include the Parent’s input; Parent training and counseling; progress reports on IEP goals and objectives; additional compensatory services for the summer of 2011; and payment of the Parent’s attorney fees and expenses. The District’s Position

While they fell short of conceding FAPE, the District was equivocal in its defense; they offered no witnesses on the day of the hearing, and conceded that certain aspects of the IEP were deficient. The District representative, a social worker, stated in the hearing that after a paralegal reviewed the case in September, ―it was recommended for settlement based on the points that have been identified in terms of the inappropriate nature of some parts of the IEP…‖ (Tr. P. 15). When I asked her if she was saying there was a concession at that point, the social worker stated, ―Yes‖. (Tr. P. 15) Regarding the IEP, the social worker said, ―Again, following the Due Process, the settlement was recommended in September, meaning there was validation for parents’ concerns with the IEP development.‖ (Tr. P. 17) The terms of the settlement negotiations are confidential and not part of this case. Student History

The Student is years old and is diagnosed with and , and is classified by the Department of Education as a student with on his Individualized Education Plan of April 15, 2011. (Parent’s Ex. A) The classification is not contested in this case. He attended a kindergarten special class in a District community school during the 20102011 school year, without ‖). In her affidavit, the Parent said the Student did not make any progress in that placement. (IHO, Ex. 5) The Committee on Special Education (―CSE‖) held a meeting on April 15, 2011 to create an IEP, which recommended a smaller class of in a specialized school with related services, but the case had to be deferred to the ‖) for placement. The Parent’s Attorney asserted at the hearing that a few weeks after the meeting, the Parent asked the chairperson of the CSE where the Student would go to school that summer and fall, and the chairperson said the ―Placement Office‖ would be responsible for this. (Tr. P. 20) The Attorney stated that the Parent ―communicated on June 22nd via e-mail that no one’s reached out to me about the summer program and placement for September.‖ (Tr., P. 20) The District sent her (― ‖) forms for and services and for the summer, but did not receive for or placement in a summer school program. The Parent began investigating possible schools for her child; after finding a suitable school, she enrolled him and placed a deposit. On August 17, she wrote a letter to the Department of Education informing them of the unilateral placement of the Student in the private school and requesting transportation. (Parent’s Ex. E) They did not reply to offer an alternative placement, so the Student began going to the school in September 2011, where he is receiving related services. His Parent, teacher, and service providers all stated in their affidavits that he has made great progress. Legal Principles Reimbursement Generally

This case deals with reimbursement by the District to the Parents for tuition and related expenses incurred in the placement of the Student in a Private School. The standard is set forth in School Committee of the Town of Burlington vs. Department of Education Massachusetts, 471 US 359 (1985); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]: [A] "Board of Education may be required to pay for educational services obtained for a child by the child's 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."

In New York State ―The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ‖NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where ―The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.‖ Schaffer, 546 U.S. at 537 However, when ―. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.‖ NY Educ. Law § 4404 (1)(c)

ANALYSIS

Prong I

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20011-2012 school year, including the summer session for 2011. The purpose of IDEA is to provide students with a ―basic floor of opportunity‖ of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 11751176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104

(D. Minn. 1998) (citing Rowley)

This relatively straightforward obligation of the District is circumscribed by the requirement to put forward a case when challanged. ―A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In this case the District has failed to meet its obligation of demonstrating an appropriate program. From the record before me I can discern no consistent effort in administering the education of the Student. Rather it appears that a mistake was made communicating between the Committee on Special Education, the Central Based Support Team and the Placement Officer relative to this Student.

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080 In order to meet that burden, respondent must show that the services provided were "proper under the Act," (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370) i.e., that the private school offered an educational program which met the student's special education needs. (Application of a Child with a Disability, Appeal No. 01-010) The private school need not employ certified special education teachers or have its own IEP for the student; (Carter, 510 U.S. at 7; Application of a Child with a Disability, Appeal No. 02-014, Application of a Child with a Disability, Appeal No. 01-105)

In the instant case, the Private School in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported in part by the Educational Coordinator at the Private School who stated in her affidavit of November 22, 2011 that the school’s program is appropriate for the Student and has been helpful to him. She said:

―8. The program that [the Student] has participated in has been individualized to his needs and aligned to the New York State Learning Standards. The components of the curricula include:

a. (reading, math, language arts, writing);

b. (attention to task, cooperative play, conversation units);

c. (communication behavior, joint attention and perspective taking);

d. (functional daily-living skills); and

e. Community of reinforcers — an expanded community of interests (interest in age appropriate leisure activities and hobbies).

9. The program designed for [the Student] has been individualized to address his needs, including reflection of his needs determined by the Assessment of Basic Language and Learning Skills — Revised ("ABLLS-R") inventories, designated goals, the wishes of the parents, and the future educational needs of the student.

The curricula includes measurable outcomes, and is continuously measured throughout the instructional day.

10. [The Student] has been receiving instruction in a teaching model in a classroom of students, instructors, and lead teacher.

11. [The Student] is receiving the related services of and .

12. The has focused on development of the [the Student's] receptive and expressive language skills. He has received three individual thirty-minute sessions of therapy per week since he began his attendance, and one group session.

13. [The Student] has made significant progress in the short period of time since he began attending [the School]. Since attending [the School}, [the Student] has begun speaking and now routinely communicates his needs vocally and in short sentences.

14. For , [the Student] has received two individual sessions of service each week and one group session. These sessions have focused on fine . These four areas of are incorporated into . Our staff have observed and documented significant improvement in each of these areas of development during the short time he has attended [the School]….

16. The lead teacher in [the Student's] class receives ongoing supervision by the Educational Coordinator, two Assistant Educational Coordinators and a

Coordinator of Special Programming. Each of these supervisors is a board certified behavioral analyst and a NY State certified educator….

18. In the two plus months that [the Student] has been attending [the School], he has made tremendous progress. In September, [the Student] displayed extremely limited expressive language abilities. At this time, he is speaking using short sentences and making his needs and wants known by verbal request. He is also displaying increased amounts of social communication with his family, staff and other students.

19. [The Parent] has participated in our monthly parent education workshops since [the Student's] enrollment at [the School], which educates parents on the needs of their children and effective educational techniques to employ with their children.‖ (IHO, Ex. 1)

In her affidavit of November 22, 2011, the lead teacher stated:

―3. Since the start of the 2011-2012 school year I have been implementing instructional programming and collecting and analyzing data daily to measure [the

Student's .

4. , .

5. His attention to task has improved significantly during this short period of time.

6. [The Student] has in our program and his demonstrated success indicates that he is an appropriate fit for the program offered him here at [the School].‖ (IHO, Ex. 2)

The stated in her affidavit of November 22, 2011:

―3.Since the start of the 2011-2012 school year I have been providing service to [the Student] at a level of three times a week for 30 minutes individually and one time a week for 30 minutes in a group of students with I.- I staff support throughout the session, and one time per week as a push-in consultation in his .

4.[The Student] .‖ (IHO, Ex. 3)

The stated in her affidavit of November 22, 2011:

―3. Since the start of the 2011-2012 school year, I have been providing at a level of two times per week for 30 minutes individually and one time per week in a group for 30 minutes. He receives in a group of five students with staff support throughout the session, which focuses on , such as yoga. There is also a push-in session during lunch one time per week for 30 minutes that works on adaptive daily living skills such as utilizing utensils, and this is done in a of adult support to students.

4. [The Student] has made progress in this , and .‖(IHO, Ex. 4)

In her affidavit of November 21, 2011, the Parent stated that the Student has improvement:

―xx. Since attending [the School], I have noted remarkable progress in [the Student's] .‖ (IHO, Ex. 5)

The Student has made across multiple educational domains. I am mindful that the Student’s Parent’s placement at the Private School "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Hyde Park CSD, 459 F.3d 356, 363 (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000) citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). Accordingly, I find that the Parents have sustained their burden with respect to Prong II. Prong III

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] 1; see 34 C.F.R. § 20 U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- ``

(I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . .

(iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement—

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

The record reflects that the Parent offered the District the requisite notice. Because of this and in consideration of the totality of the record I find no basis under prong III to reduce or deny tuition reimbursement.

It is therefore ORDERED

That the District reimburse the Parents for one-hundred percent of the cost of tuition up to this point at the Private School for the 2011-2012 school year; and

That going forward, I direct the District to develop and implement at public expense an IEP placing the child in the Private School for the remainder of 2011-2012 school year and offer extended year services if they are warranted.

That the District provide make-up service for instruction that was missed during the summer of 2011 by providing fifty hours of instruction to be provided before June 2012; In the event that the Student does not avail himself of these services by the end of May 2012 then the District is released from the requirement to provide these make-up services.

That the District provide make-up service for that was missed during the summer of 2011 by providing twelve sessions of thirty minutes per session to be provided before June 2012; In the event that the Student does not avail himself of these services by the end of May 2012 then the District is released from the requirement to provide these make-up services.

Dated: January 11, 2012

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

________________________________

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 NOVEMBER 22, 2011

PARENT

A Demand for Due Process Hearing, 9/2/11, 5 pp. B DOE Due Process Response, 9/7/11, 4 pp. C IEP 2011 – 2012, 4/15/11, 20 pp. D IEP 2010 – 2011, 10/28/11, 17 pp. E Letter to CSE from Parent, 8/17/11, 1 p. F Related Service Authorization – , 7/18/11, 3 pp. J Related Service Authorization – 7/5/11, 1 p. K Related Service Authorization – , 6/28/11, 1 p. M CSE Meeting Notice, 4/1/11, 2 pp. N Related Service Authorization – 4/15/11, 1 p. O Request for Prescription for Related Services, 3/1/11, 1 p. P CSE Recommendation, 11/29/10, 1 p. Q CSE Recommendation, 6/28/10, 1 p. R CSE Recommendation, 5/24/10, 1 p. S Related Service Authorization, - 9/15/10, 2 pp. T CSE Recommendation, 4/26/10, 1 p. U CSE Recommendation, 7/14/09, 1 p. V CSE Recommendation, 7/14/09, 1 p. W CSE Recommendation, 10/28/08, 1 p. X Re-Evaluation and Summary, 5/19/11, 15 pp. Y Augmentative and Alternative Communication Evaluation, 10/22/10, 6 pp. Z Evaluation Addendum, 6/21/10, 2 pp. AA Summary, 5/26/10, 14 pp. BB Social Worker Update, 2/12/10, 2 pp. CC Report, 3/10/10, 7 pp.

EE Report Card, June 2011, 2 pp. FF IEP Goal Progress Report, March 2011, 2 pp. GG Consult, 3/31/11, 2 pp. HH Letter from & , MD, 1/6/11, 1 p. II Request for 504 Accmmodations, 8/29/10, 1 p. JJ Related Service Prescriptions, 4/1/11, 1 p. KK Request for Physcial Examation, 3/26/08, 2 pp. LL E-Mail to from Parent, 7/8/11, 1 p. MM Receipt Form, 6/28/11, 1 p. NN E-Mails between Parent and M. , 6/21/11, 1 p. OO Letter to from Parent, 6/20/11, 1 p. PP E-Mails between and Parent and QQ E-Mail to from Parent, 11/24/10, 1 p. RR Certificates, 6/22/11, 2 pp. SS Enrollment Contract 2011 – 2012, 3 pp. TT Attendance Card, 2011 – 2012, 1 p. UU Schedule 2011 – 2012, 1 p. VV Program Offerings and Features 2011 – 2012, 5 pp. WW Staff Qualifications/Resumes , 2 pp. XX Staff Qualifications/Resumes , 1 p. YY Staff Qualifications/Resumes , 1 p. ZZ Staff Qualifications/Resumes , 2 pp. AAA Staff Qualifications/Resumes , 2 pp. BBB Staff Qualifications/Resumes , 1 p. CCC Staff Qualifications/Resumes, 8 pp. DDD Staff Qualifications/Resumes, , 2 pp. EEE Staff Qualifications/Resumes . 2 pp. FFF Affidavit of , 11/1/11, 1 p.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Affidavit of Dr. II Affidavit of III Affidavit of IV Affidavit of V Affidavit of Parent