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: October 24, 2011

January 20, 2012

February 22, 2012 Actual Record Close Date: March 5, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 24, 2011

Attorney — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2012

Attorney — Student

Parents

CSE Representative — DOE

DOE

Assistant Principal — DOE

Special Education Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 22, 2012

Attorney — Student

Parents

Student

CSE Representative — DOE

I. Introduction — DOE

On September 8, 2011, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on October 24, 2011, and January 20 and February 22, 2012. A hearing session scheduled for December 13, 2011, was cancelled, because on December 6, 2011, the parent submitted an amended hearing request, which the department of education accepted. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at both parties’ requests on October 24, 2011, and at the parent’s request on January 20, 2012, because of the unavailability of witnesses and the requirements of due process, in order for the parties to complete their case. Before granting the extension requests, I determined that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties.

II. Background

old student classified as ”), who attends the (“ ”) at (“ ”), a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed. On May 10, 2011, the CSE held a review and issued an IEP (Exh. 3) recommending placement in a special class in a school, with (“ ”) twice per week for 20 minutes and therapy twice per week for 30 minutes on May 19, 2011, a place in was offered (Exh. 2). On September 8, 2011, , Esq., attorney parents, requested the instant hearing (Exh. A), alleging that the department of education failed to offer a free appropriate public education (“FAPE”) for 2011/2012, and seeking department of education reimbursement for ’s 2011/12 tuition .

On October 24, 2011, the parent’s attorney requested that I issue an order determining s “pendency” program, pending resolution of this matter, based upon the decision in a prior hearing dated August 22, 2011 (Exh. B), which found that the department failed to provide FAPE to and ordered that the department fund the “secular” portion of ’s 2010/11 tuition at , and the costs of transportation to and from the program. I ordered that pending resolution of this hearing, the department of education shall fund the secular portion of ’s 2011/12 tuition, plus transportation costs.

III. The CSE’s Case

, a department of education school testified (Tr. 25-82) that she has a M.S., certification as a school has been employed by the department for 8 years, and is assigned to CSE her duties include evaluations, observations, CSE reviews, and program recommendations. As part of triennial evaluation, Ms. did a evaluation on April 5, 2011(Exh. 8). A evaluation was done also by the ”), the district in which is located, on March 24, 2011 (Exh. 10); Ms. did not know of this evaluation until 's parent provided it to the CSE at the May 10, 2011 CSE review. Ms. stated that her evaluation states that has , for which he takes an IQ, math skills, and reading and writing skills. Ms. participated in s May 10, 2011 CSE review; she stated that the team discussed the evaluation, a classroom observation done by the district representative (Exh. 9), a teacher report (Exh. 6), a report (Exh. 15), and an report (Exh. 16), and that 's teacher, who participated via telephone, discussed 's functioning levels. The ") page of the IEP was based on the teacher report (Exh. 6): 's decoding skills are at a grade equivalent level; comprehension is at a g.e.; is at a g.e., writing is at a g.e., and math is at a g.e. 's academic management needs were based on information from 's teacher and parent. 's teacher stated there was a plan in effect for the class; she indicated that did not need a because he responded well to the class . Ms. did not recall if the CSE discussed the impact of 's on his classroom performance. Ms. stated that has ; the CSE asked 's parent for a medical report, but did not receive one. Ms. stated that the CSE recommended a program to address 's need for re-direction, re-focus, and his and . Ms. stated that 's parent cooperated with the CSE, and provided requested consents and school information; at the CSE review, the parent stated she was "not interested" in a parent member's participation, and signed a letter declining the parent member's participation. The CSE did not give the parent a copy of her due process rights at the hearing, or discuss them. Ms. did not recall if 's parent received a copy of the CSE minutes.

, an Assistant Principal since 1999, testified (Tr. 85-130) that she has a M.S., certifications in administration, general education and special education, and was a teacher from 1984 to 1999. Ms. reviewed 's IEP, and stated that the teacher of the grade class at could meet ’s needs. Ms. stated that uses a math program, which incorporates ongoing assessments and review, a reading program, a "hands on" science program, a program for students, and a rewards system for positive behavior. There is one grade class; Ms. created the class based upon and did not review the students' IEPs, classifications, or functional levels. , , are available; the and share room, and therapists share room. Ms. visits the class two to three times per week. She stated that the class uses " " and for "special" subjects include science and physical education, and the class eats lunch in the lunchroom with all mainstream and grade students, accompanied by the class 's parent visited on September 20, 2011, accompanied by an advocate; they met with Ms. , asked questions about the class, and observed the class. Ms. stated that the students are classified as ; she did not know their cognitive or functional levels. There are currently students in the grade class; the teacher uses differentiated instruction, and creates individualized curriculums. One of the students has a .

, a department of education special education teacher, testified (Tr. 132-169) that most of her experience is teaching students; she was assigned to in September, 2011, and teaches the class. Ms stated that the class has students aged , are classified with a , and are classified as their reading levels range from skills to grade (“g.e.”), and Ms. did not know the students’ levels. Ms. stated that she uses a modified grade curriculum, individualized according to each student’s needs. The room is arranged into “centers,” including areas for writing and reading. There is whole group instruction before center time. The students rotate among the centers; centers are for skills, and are for work with Ms. or the class Ms stated that the students have learned to follow the class routine, and do their assigned center tasks. Ms. administers the in October and June; she stated the students’ reading skills have improved. Ms. uses a multi-modal math program, with differentiated instruction, and group and independent work. Special subjects include science, gym, music, and library; social studies is part of the core curriculum. Ms. reviewed ’s IEP, and stated that she could address his needs and sensory concerns, and would use prompts, re-direction, graphic organizers, and visual checklists to promote independence. Ms. stated that would be in the “higher end” of her students’ functioning levels. There is a class behavior plan, which uses a visual “red light/green light” system, and positive reinforcement via monetary rewards. Ms. stated that one of her students has a BIP, but does not exhibit aggressive behavior. There is no curriculum, but Ms. uses “social scripts.” Ms. said she could address ’s needs with reinforcement strategies and positive peer models. She stated that she could implement ’s IEP goals.

IV. The Parent’s Case

, Program Director at , testified (Tr. 179-208) that she has a M.S. in certifications to teach special education and as a school administrator, and experience as teacher and supervisor. Ms. been employed by for 20 years; her duties include hiring, training, supervising, and supporting staff, admissions, parent communication and support, participation in CSE reviews, parent-teacher conferences, and liaison with the mainstream school program. Ms. supervises the program’s

, who does not have a special education license. Ms. described as a program with self-contained classes for students aged in grade, who have -based learning disabilities that impact on academic and social skills; the program is housed in day schools, and currently has students. Students are admitted based upon their . The admissions process involves staff meeting with the student and parents, review of reports, evaluations, and IEPs, administration of informal reading, math, and writing tests, observation of the student in his current school, the child participating in a class, and parent observation of a class. entered the program in and is now in grade. ’s class has students in the morning session, which is devoted to students in the afternoon session, which is devoted to secular studies (See Class Schedule (Exh. G). The students are aged , and are classified with or ; their reading and math levels are to g.e. The class has a ratio, with different teachers for the morning and afternoon sessions; both teachers have special education certification, and the teaching assistants have experience in special education. The class has group and instruction. ’s class is housed in the mainstream program, which has students in grades. is mainstreamed for , library, art, recess, lunch, and school trips; a class teacher is always present during mainstream periods. receives twice per week for 30 minutes , and twice per week for 30 minutes in a group; the services are provided by . If the service school district cannot provide related services provides them at additional cost.

, at for 14 years, testified (Tr. 210-287) that she has a M.S., certification as a general education and reading teacher, and experience in public schools and as a CSE member; her duties include curriculum development, supervising teachers, admissions, and coordinating related services. Ms. participated in ’s May 10, 2011 IEP meeting; at the meeting, she received the department of education’s evaluation and classroom observation, and she gave the CSE teacher reports from . There was no parent member present; ’s parent signed a declination letter. Ms. stated that she discussed ’s , his ; the teacher report , “ . Ms. testified that the IEP is inaccurate, because it does not reflect ’s which require much intervention. Ms. stated that the CSE used goals from the prior IEP to determine ’s progress and the need for new goals. She said that the team discussed goals for decoding and word problems, but none were included in the IEP. Ms. testified that some of the IEP goals are inappropriate because they are not measureable, are intended for a student at a higher functioning level, address skills which has already mastered, or are “generic.” There was no at the IEP meeting, and Ms. does not know who developed the goals. Ms. stated that she did not object to any goals, because she did not receive the IEP until after the meeting. Ms. stated that has an individual to address his , and she told the CSE that needed a to caused by his . The CSE asked about placing in a mainstream math class, but the teacher said he was not ready for that.

Ms. testified that she has frequent communication with ’s teacher regarding ’s program and progress, and she regularly observes the teacher in class. functions at a level similar to the other students, but his attention and sensory issues are more extreme. is in math and reading groups; he functions at a grade level in math, and a grade level in reading. The groups are formed according to the students’ functioning levels and abilities, and meet outside the classroom, to avoid distraction. In reading, the teacher addresses decoding, spelling, grammar, and comprehension; for writing, the teacher uses graphic organizers. The other students provide positive role models. Materials are modified as needed, and progress is measured by informal assessments and quizzes; ’s class does not take state-wide tests. Ms. stated that has progressed, especially since his medication was adjusted: he is more available to learn, reads with more a , and has and writing skills. has , and may soon be ready for a mainstream math class. is sometimes pulled out of class for writing assistance, because he becomes distracted; the mechanics and content of ’s writing have improved. Ms. Feltheimer stated that is too distractible to work independently; the class addresses this via a BIP, organizers, and separate groups, and made some progress in his ability to attend. has receptive and expressive language difficulties, and his teacher and speech therapist collaborated on accommodations, such as extended processing time. Ms. stated that ’s have improved. is mainstreamed during lunch, but requires support form the teacher or because of Ms. stated that the class is appropriate to meet ’s academic, and needs.

’s parent testified (Tr. 288-313) that she attended the May 10, 2011 IEP meeting, accompanied by Ms. ’s teacher participated via telephone. Ms. did not remember receiving the parent member declination letter (Exh. 5) in the mail; she signed it at the CSE review, rather than re-schedule the meeting. Ms. told the CSE that has . Ms. stated that has relatively strong math skills, but has reading problems, and requires constant repetition. Ms. stated that ’s hearing was evaluated in December, 2010, and she sent a copy of the evaluation to the CSE on February 23, 2011 (Exh. I), and she gave the CSE a report regarding ; received an unit on August,

2011. On August 24, 2011, Ms. notified the CSE that she had not received a placement offer for 2011/12 (Exh. D); she received no response. After Ms. ’s attorney informed her that the department of education , Ms. visited the school. She informed the CSE on November 30, 2011, that the school was not appropriate for , because would not have been appropriately grouped, the environment was too distracting, and would not have received sufficient attention (Exh. E); she received no response. Ms. stated that has better focus : , and he has made friends in . Ms. stated that is appropriate for . ’s parents signed a contract on May 10, 2011 (Exh. F), to ensure that would have a seat for 2011/2012; tuition is $ and the parents pay $ per month.

V. Findings of Fact and Conclusions of Law

I find that ’s parents are entitled to reimbursement for ’s 2011/12 tuition at and the costs of transportation, because the department of education failed to prove that its recommendations for were appropriate, ’s parents have shown that is appropriate for , and equitable considerations support a tuition award.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-

01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that

(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district'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, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral 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.

I find that ’s parents met the Carter requirements. I find that the May 10, 2011 IEP is substantively deficient. I find that the testimony of the CSE witness is not wholly credible: the witness stated that the parent failed to provide the CSE with a request hearing evaluation, but the parent produced clear and convincing evidence that she provided the CSE with the evaluation three months before the CSE review. I find that the IEP is deficient because the CSE did not consider that evaluation, and the adverse impact of ’s hearing issues on his ability to learn; I note that (the service district) found those issues significant enough to give an . I find that the CSE should have done a FBA and BIP, to appropriately address ’s , and , . I credit the testimony of the parent’s witness (the educational coordinator) that the IEP goals are inappropriate, because they are incomplete, some have already been mastered, some are beyond ’s capabilities, and some are not measureable. I find that the recommended program and class were insufficient to address ’s reading issues. I find that requires a structured special education class to address his learning, organizational, and issues. I credit the testimony (and admire the candor) of the department of education witness (the assistant principal of ) that the proposed class was formed without regard to or knowledge of the students’ evels, functional levels, classifications, and IEPs. I find that the proposed class was comprised of students’ who had widely varying functional levels and abilities, and who did not have needs similar to ’s. I find that the proposed class did not have sufficient attention to address ’s and and that would not be capable of the independent work built into the class routine. I find that the department of education failed to show that the class could appropriately address ’s I find that is too an environment for , and that he would not have sufficient support during the mainstream periods built into the class program. For the reasons given, I conclude that the IEP is substantively deficient, that the recommended program and placement are not appropriate, and that the department of education failed to offer FAPE to for 2011/2012. I find that is an appropriate program for , even though it is not a SEDapproved program. offers a supportive, structured, small class environment, with a language-based curriculum, multi-sensory instruction, individual attention, and small group activities; the program effectively addresses ’s . The curriculum is individualized to each student, and provides the re-focusing, repetition, modifications, supports and strategies, which requires. There is a student-teacher ratio, and the students are grouped homogeneously for group instruction, which encourages both appropriate social interaction and development, and intensive academic instruction. The class provides for appropriate role models. There are classroom and individual behavior plansmk to address ’s . The staff regularly monitors students’ progress and modifies their programs to suit their developing needs. The record indicates that has made at ’s program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress, and provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition. I find that ’s parents fully cooperated and communicated with the CSE, and that they made a timely hearing request. I find that the amount of reimbursement requested is reasonable. Therefore, I conclude that ’s parents are entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the secular part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of Tuition reimbursement does not create a financial incentive for children to undertake education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that ’s part-curriculum does not preclude an award of tuition reimbursement. The record indicates that about of ’s school day is devoted to instruction; therefore the parent shall be reimbursed for of the cost of ’s program, exclusive of any fees or contributions.

I also find that the parents are entitled to reimbursement of transportation costs to and from (See NYS Education Law §4402 4.d).

VI. Order

IT IS, THEREFORE, ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parents for (a) of the 2011/12 tuition at , less any fees, contributions, or scholarships, up to a maximum amount of $ and (b) transportation costs. Dated: March 14, 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 Hearing Request, 9/8/11, 2 pp. B Unappealed IHO Decision, 8/22/11, 17 pp. C Amended Impartial Hearing Request, 12/2/11, 3 pp. D Letter from Parent to 4, 8/24/11, 1 p. E Letter from Parent to , 11/30/11, 3 pp. F Contract, 5/10/11, 2 pp. G Class Schedule, 2011/2012, 2 pp. H Program Description, Undated, 1 p. I Report, 2/23/11, 1 p. J Report Card, November 2011, 1 p.

DEPARTMENT OF EDUCATION

1 Notice of Scheduled Resolution Meeting, 9/9/11, 3 pp. 2 FNR, 5/19/11, 1 p. 3 IEP-CSE Review, 5/10/11, 12 pp. 4 Conference Agenda Sheet, 5/10/11, 5 pp. 5 Declination Letter, 5/10/11, 1 p. 6 Teacher Report, 5/2011, 4 pp. 7 Observation, 3/15/11, 1 p. 8 Report, 4/5/11, 3 pp. 9 Observation, 3/23/11, 1 p. 10 Evaluation, 3/24/11, 3 pp. 11 Notice of Request for Re-Evaluation, 3/14/11, 1 p. 12 Testing Appointment Letter, 3/14/11, 1 p. 13 Appointment Letter CSE Review, 3/14/11, 1 p. 14 Education Evaluation, 1/25/11, 4 pp. 15 Evaluation, 1/25/11, 5 pp. 16 Therapy Re-Evaluation, 2/11/11, 2 pp.