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: February 15, 2012

June 7, 2012

August 3, 2012

Record Close Date: October 2, 2012

Hearing Officer: Ellen Cutler-Igoe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY V15, 2012

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 7, 2012

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2012

Parents

Attorney — DOE

Attorney — DOE

On September 7, 2011, the parents of (“ ”) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 United States Code, § 1415 (f)(I) seeking reimbursement of tuition paid to the School for the 20092010 and 2010-2011 school years. On November 17, 2011, the Department of Education (“DOE”) submitted a motion to dismiss Parents’ claim for the 2009-2010 school year as time barred. Parent’s opposition brief was filed on December 8, 2011. Upon due consideration, this Hearing Officer dismissed Parents’ claim for tuition reimbursement and any/all related services for the 2009-2010 school year. (Tr 82) Hearings were held on February 15, 2012, June 7, 2012 and August 3, 2012. Ms. , Esq. appeared for the DOE and Ms. , an attorney and parent of , appeared on behalf of her daughter. The parties either jointly or individually requested adjournments. Department of Education’s Motion to Dismiss Parents 2009-2010 Complaint as Time Barred by the Two Year Statute of Limitations

On June 16, 2009, an Individualized Education Program was developed for . At that time, ’s Parents received a copy of the plan presented by the Committee on Special Education (“CSE”). A final recommendation (“FNR”) dated June 22, 2009 offered the Student a placement at the , and . (Exhibit I I) On July 2, 2009, Parent visited the proposed placement. (Tr. 22) As stated by Parent in a letter dated July 22, 2009 to Ms. , a representative from the CSE Region 9, Parent rejected the recommended placement school based on her observation and discussion with Ms. , Principal for the and . Further and of significance to the issue before this Hearing Officer, Parent , as noted at paragraph 10 of the aforesaid letter asserted, “Please be advised that, for reasons state above, we believe is not an appropriate placement for [ ]. Unless [ ] is reevaluated, the Individualized Education Program (“IEP”) team is reconvened and her IEP is reviewed and revised substantially as we have requested, and unless, with our participation, another placement recommendation is made based upon the revised IEP, and we find that placement to be appropriate for [ ], we intend to continue to enroll [ ] at for the 2009-2010 school term. As we have to make a non-refundable deposit soon at in order to hold [ ’s] space available for next year, in case an appropriate public school placement is not available for her, please advise me as soon as possible whether intends to comply with our request for a reevaluation [ ] and to reconvene the IEP Team to develop an appropriate IEP that will incorporate the results of the reevaluation, as well as address the issues I have detailed.”

Subsequent to the letter, the record reflects that various e-mail correspondences were exchanged by Parents with the CSE requesting that be reevaluated. The e-mails include Parents’ expressed disappointment in the review process and notice of their intent to file a complaint with the State Education Department. continued to attend the private school placement during both the 2009-2010 and 2010-2011 school year.

The DOE, by written motion and oral argument (Tr.3-7, IHO Exhibit IV), moved to dismiss Parents’ complaint for the 2009-2010 school year. The DOE contends that under the 2004 Reauthorization of IDEA, the IDEA provides an opportunity for any party to present a complaint setting forth an alleged violation of a District’s failure to provide a student with a free, appropriate public education (“FAPE”) that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint. (citing Somoza v. N.Y. City Dep’t of Educ., 538 F.3rd 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. 1415(b)(6)(B)). The DOE contends that claims concerning the proposed placement accrued when the Parents received the FNR dated June 22, 2009, or at the latest, when Parent visited the placement on July 2, 2009. Moreover, it is alleged that any claim arising from the alleged insufficient evaluations conducted on August 11, 2009 and August 12, 2009 accrued when the Parents received copies of those reports on August 31, 2009. (Exhibit

IV) The DOE proffers that the limited exceptions to the statute of limitations do not apply. The DOE relies on New York Education Law §4404[1][a] which states, “the timeline shall not apply if the complainant was prevented from requesting a hearing due to: (1) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or 2) the local education agency withheld information that was required to be provided to the parent or student.”

Parents’ dispute the DOE’s position that the contested claims for the 2009-2010 school year are time-barred. Parent in her position brief contends that the DOE’s arguments are based on mischaracterization of the claims and are easily rebutted. Parent opines that the aforesaid accrual dates provided by the DOE for the contested claims relating to the 2009-2010 school year should not be interpreted by this Hearing Officer as accrual dates. Parent opines that such dates denote her continued efforts to trigger responses from the District to her applications for the reevaluation of . (Tr.36) Parent notes that the intervening events subsequent to the DOE’s stated accrual dates were part of the normal process of working with the CSE to “come up” with an appropriate IEP and educational placement for and should not be considered for the purpose of dismissing Parents’ claim for the 2009-2010 based on New York Education statute of limitations. (Exhibit V)

Upon a thorough review of the evidence submitted, testimony, memorandum of law and position arguments, I found in favor of the DOE and dismissed with prejudice Parents’ claim seeking tuition reimbursement for the School the 2009-2010 school year. The record clearly and definitely demonstrates that Parents denied the District’s offer to enroll at the in on July 22, 2009. Thereafter, any actions to accommodate Parents’ request for the District to partake in additional testing did not serve to toll the two year statute of limitations. Contrary to Parents’ position, it is not persuasuave and, the facts do not support Parents’ contention that they could not have known until September 19, 2009 or the beginning of the ten month school year that the District was not offering a FAPE for . (Exhibit V)

The IDEA 2004 (20 U.S.C. § 1415 [b][6][B] ) and the analogous state limitations period (8 NYCRR 200.5[j][1][i]) specify that the request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under Part 200 or 2001 of the Regulations of the Commissioner of Education for the State of New York. As such, I reject Parents’ contention that this claim falls within the statutory exceptions as related to the 2009-2010 school year. As of July 22, 2009, the date Parent memorialized her disagreement with the District’s placement, knew or should have known that she would be seeking tuition reimbursement for unilaterally continuing to enroll at the School. This Hearing Officer finds that the actions of the District subsequent to July 22, 2009 was prompted as a result of Parents’ continued requests for a reevaluation and not an integral part of any misrepresentations or hindrance by the District which would have precluded Parents from filing for an impartial hearing within the mandated two year time frame.

Furthermore, Parents position in reference to pendency issues, presented by Parents for the first time during the hearing held for closing arguments, is acknowledged but otherwise not deemed an issue for the herein hearing. Any and all directives provided to the parties reserved for the hearing scheduled on August 3, 2012 were specific to closing arguments and to memorialize the submission of evidence previously disclosed but not entered into record; it was not held to address amended complaints or serve to address newly undisclosed alleged rights of either party. Parents’ Claim for the 2010-2011 School Year

Pursuant to the most recent and Educational Evaluation finalized on July 7, 2010, was described as an grader attending the School. The evaluator described parents’ chief concern as, “whether ’s academic difficulties can be related to a skills deficit or lack of motivation and what other kinds of assistive technology may benefit looking forward.“ (Parents A-1) Diagnostically, presented with , , skills that warranted diagnoses of , Not Otherwise Specified. Recommendations for included the continued support of a full-time, small supportive, special education classroom and school environment with teachers well trained in facilitating academic achievement with learning disabled children. (Exhibit A-1) Accommodations and program modification recommendations encompassed but were not limited to 1) extended time for tests (double time), 2) instructions repeated and clarified, as well as checking for comprehension, 3) the use of alternative testing formats when appropriate (e.g. multiple choice true/false, word bank versus open-ended responses, 4) availability to a computer or scribe for written work, 5) use of a recording device to capture information she needs to remember verbatim and 6) copies of class notes. Consideration into incorporating vocational training and opportunities into ’s educational plan, the possibility of placement in a transitional supportive living environment and referrals for processing and evaluations were submitted in the evaluator’s conclusion.

On May 17, 2010, an Individualized Education Program (“IEP”) meeting was convened for . Participants of the IEP annual review meeting were , Parent, , District Representative, , General Education Teacher, , School , , Special Education Teacher, , Parent Member, , the School Certified Secondary Social Studies Teacher and , the School , Certified . It was reported that attended the School in a class of for the 2010-2011 school year.

was diagnosed with a with . Academic functioning was . The CSE team provided the following academic management needs:

approach

representation proofreading

checklists

availability

Calculator

Use of tables, diagrams, manipulatives to help visualize and break down

Multi-step math problems

Teacher modeling

Note cards, study guides and practice tests

Scaffolding to breakdown complex processes into simpler steps

Teacher modeling with explanation

Chunking material into manageable units

Previously taught concepts reviewed and reinforced

Planner/organizer to prioritize assignments and projects

Extra time for completion of work and processing

New information presented within a meaningful context, frequent feedback

Teacher checks for understanding

Encourage asking for clarification hen needed

Teacher prompts to refocus

Recommended related services included . was to participate in State and local assessments with modifications. Transition service goals were documented. (Parent Exhibit N-30) However, the District concededly failed to offer a FAPE. Parents Position

Parents seek an order requiring the DOE to reimburse them for ’s tuition at the School for the 2010-2011 school terms, the costs of all her mandated recommended related services and transition services purportedly provided at the School. (Exhibit V) As set forth in her closing brief, Parent reiterated that she believed was the pendency placement, thus, maintaining her entitlement to reimbursement but offered her legal analysis regarding reimbursement under the Burlington analysis. (Exhibit V) This Hearing Officer notes that pendency was not raised by Parent during the hearing process or nor did request to amend her complaint. However, in the alternative, Parents contend that the issue turns on whether the placement was “reasonably calculated to enable the child to receive education benefits.” (Exhibit V) Parents summarized that the School provided the kind of special education described in ’s evaluation. (Exhibit A-7). Moreover, Parents claim that the record amply demonstrates ’s needs for related services and that the related services provided were appropriate. (Exhibit V 3031)

Parent testified that the School provided a setting in which she could negotiate. The teachers at the School “gear[ed] their instruction toward the pace of learning that the class is able to handle and toward[s] the types of instruction that enable[d] them to have a grasp and work with material.” (Tr. 127) Parent stated that ’s teachers were responsive to ’s educational needs and in particular, the school provided a focus instructor who coordinated with ’s parents, teachers and to enable to maintain her function levels. (Tr. 128) Parent summarized ’s educational needs and goals set forth by the School in conjunction with ’s progress and setbacks during the 2010-2011 school year.

Parent indicated that during the summer of 2010, ’s parents in consultation with personnel from the School enrolled in the School for the acquisition and enhancement of post skills needed to perform . is “oriented toward developing independence on the part of kids [in order] to give them a chance to live separately from their home environment, to adjust to that for purposes of moving forward but to adjust to it in the context of a lost o supports if they need them…their classes tend to be more interactive in terms of what do you need to know…in order to live independently either for purposes of going to school or for purposes of working,” (Tr.

170) On cross-examination, Parent indicated that the placement school, Preparatory, provided a summer program but that was the summer program under advisement by the School. (Tr. 169) Parent testified that the School did not address any other component of education for but for the education component. (Tr. 171)

It is important to note, Parent described and defined what she believed characterized her daughter, ’s, academic, and overall levels of functioning however, portions of her testimony were not corroborated by witness statements, documentary evidence or relevant New York State regulations and laws. Department of Education’s Position

The DOE in its preliminary statement conceded Prong I of the Burlington/Carter analysis for tuition reimbursement, nevertheless stated the issues to be whether Parents’ unilateral placement and private services were appropriate and to whom the equities favor. The DOE, contrary to Parents position noted that the placement school, the School, was not an appropriate placement for because the school did not provide the student with and the she “ .” (Exhibit II) Furthermore, the DOE suggests that the School was not the least restrictive environment in that was never exposed to typically developing peers. In placing in a summer vocational program at the School, Counsel for the DOE implies that the Parents all but admits that the School was not appropriate due to its inability to address ’s skills and her need for assistance.

The DOE maintains that equities favor the DOE in that the parent gave the appearance of cooperation, but ultimately had no intention of placing her child in a public school and violated the ten day notice requirement, constituting an additional basis for which to deny the parent the requested relief. (IHO exhibit II) Conclusion

Two purposes of the IDEA are, (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A, 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see, M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). A private school placement must be “proper under the Act” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1997]; Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 [1985]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under IDEA 9471 U.S. at 370-71; 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]). 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 U.S. at 370-71; see 20 U.S.C. §1412 [a][10][C][ii]; 34 C.F.R. §300.148). Moreover, 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 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 specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]. 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. (Gaglardo, 489 F.3d at 112; see Frank G., 459 F. 3d at 364-65)

Consequently, specific to the facts of this case as presented by Parents in conjunction with the DOE’s conceding its denial of a FAPE, I am persuaded that the School was an appropriate placement for at the time of the unilateral placement and equitable considerations favor the Parents. Although experienced some academic difficulties during the 2010-2011 school year, the record does not establish that the School was an inappropriate placement to address her specific needs. In general, Parent demonstrated that personal family issues surrounding ’s home environment might have weighed heavily on some of the noted regressions displayed by . (Tr. 176-179) Moreover, costs for evaluating at is granted. SRO 08-046 states as follows: “Subject to certain limitations, federal and State regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. §300.502[a],[b]; 8 NYCRR 200.5[g][1]). Specifically, if a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. §300.502,[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see, e.g., R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated parent’s claim for IEE at public expense]; A.S. v. Norwalk Bd. Of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002][upholding order of reimbursement where district failed to demonstrate that its evaluation was appropriate]). If an impartial hearing officer finds that a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. §300.502,[b][3]; 8 NYCRR 200.5[g][1][v]; DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357 at *6 [D. Vt. Sept. 4, 2007]; Application of a Student with a Disability, Appeal No. 08-039; Application of a Student with a Disability, Appeal No. 07-126; Application of a Student with a Disability, Appeal No. 06-067; Application of a Student with a Disability, Appeal No. 05-009; Application of a Student with a Disability, Appeal No. 04-082; Application of a Student with a Disability, Appeal No. 04-027.)” The DOE did not present evidence to refute Parents’ contentions regarding the appropriateness of its last educational evaluation of . However, Parents failed to persuasively substantiate that the tutoring services provided by Ms. were comparable to services which would have been provided to by a one on one paraprofessional, a recommended related service not provided at the School or that ’s participation in the School’s program during the summer of 2010 was a substitute for transition services and/or related services. Therefore, it is so ORDERED:

Parents’ request is granted in the amount of $46,800.00 for tuition paid to the School, $3,500.00 for paid to , $4,050.00 paid to for and services and $4,600.00 paid to for counseling. Payment for the evaluation performed by the Center is to be reimbursed by the district upon Parents’ proper proof of payment. All other claims not delineated or disputed in the filed complaint are hereby denied. (Tr. 187) Dated: October 16, 2012

____________________________________

ELLEN CUTLER-IGOE, ESQ.

Impartial Hearing Officer

ECI: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 JUNE 7, 2012

PARENT

A /Educational Evaluation, 5/10/10 – 7/7/10, 17 pp. B Letter, , 3/10/10, 1 p. C Center for Advancement of the Advancement of PostSecondary Studies, Undated,

1 p. D Skills Chart, Undated, 2 pp. E Letter, August 10, 2010, , PhD., 1 p. F School information, 12/9/11, 14 pp. G School – Fast Facts, 12/9/2011, 9 pp. H School Fall Report, 2010, 9 pp. I School Progress, Update, 1 p. J School Final Report, 2011, 7 pp. K School, Standardized Test Scores, Spring 2010-2011, 2 pp. L School, Spring Progress Report, 2010-2011, 1 p. M School, Report Card, 2010-2011, 1 p. N IEP, 5/17/10, 30 pp. O Report PT Report, 5/10/10, 2 pp. P , Report, 5/13/10, 2 pp. Q Letter, , March 2011, 1 p. R Report, 3/9/11, 2 pp. S Related Service Provided Report, , September 2010, 3 pp. T Recommendation Letter, , 5/18/10, 1 p. U E-mail correspondence, 5/13/10, 1 p. V E-mail correspondence, 5/13/10, 3 pp. W E-mail correspondence, 5/10/10, 1 p. X E-mail correspondence, , 5/14/10, 2pp. Y E-mail correspondence, , 6/7/10, 1 p. Z E-mail exchange, , 5/26/10 through 6/8/10, 2 pp. AA E-mail correspondence, , 6/11/10, 2 pp. BB E-mail exchange, , 8/2/10, 2 pp. CC Letter from to 8/9/10, 1 p. DD E-mail exchange, , 9/2/10, 1 p. EE E-mail correspondence, , 8/8/10, 1 p. FF E-mail correspondence, , 9/16/10, 1 p. GG E-mail exchanges, , 3/28/11, 3 pp. HH E-mail exchange , 3/28/11, 1 p. II E-mail correspondence, , 4/1/11, 1 p. JJ E-mail correspondence, , 4/1/11, 1 p. KK E-mail exchanges, , 4/1/11, 1 p. LL E-mail exchanges, , 4/2/11, 4 pp. MM E-mail correspondence, , 4/30/12, 30 pp.

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 3, 2012

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Parents’ Closing Brief, 32 pp. II DOE’s Closing Brief, 15 pp IV DOE’s Motion to Dismiss Complaint 2009-2010, 12 pp V Parents’ Memorandum in Opposition to Motion to Dismiss and Cross-Motion for

Entry of a Default Order, 8 pp. VI Parents’ Post-Hearing Proofs provided pursuant to IHO’s Directive, 22 pp.