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 3, 2011

December 14, 2011

March 5, 2012 Actual Record Close Date: March 20, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2011

Attorney — Student

Legal Intern — Student

Chairperson’s Designee (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2011

Attorney — Student

Parents

Chairperson’s Designee (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2012

Attorney — Student

Parents

Head of School (via telephone) — Student

M.D. — Student

NO APPEARANCES

Jurisdictional Statement

On September 15, 2011, I was appointed to hear the Matter of pursuant to the IDEIA, 20 US Code Section 1415(f)(l). On October 3, 2011 a pendency hearing was held and on October 5, 2011, an Interim Order of Pendency issued. Thereafter, on December 14, 2011 a hearing was held at which time the Department of Education conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] and Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). On March 5, 2012 the proceedings continued. At this time, the Department of Education defaulted. It is noted that this is a Parental request for tuition reimbursement for the 2011-2012 school year at the School (hereinafter “ ”). In furtherance thereof, the Parent asserts that the proposed Department of Education placement is neither suitable nor appropriate for her child, relying upon the rules and principles set forth in Finally, consistent with 34 C.F.R. Sect. 300.515[a] and 8 NYCRR 200.5[j][5]), an extension to the timeline was granted and the decision date was extended to March 20, 2012. A list of persons in attendance and of evidence is appended hereto. No evidence was submitted by the Department of Education. The Department of Education’s Case

No one testified on behalf of the Department of Education. The Parent’s Case The facts in this matter are simple. is a year old child with a . On June 9, 2011, the CSE convened for the purpose of developing an IEP. In furtherance thereof, it was determined that should be placed in a integrated co-teaching class.

is licensed by New York State as a and special education teacher. He presently serves as the Head of . As such, he described the services offered by the School, noting that there are approximately students from through grade. The school serves a population whose special education needs reflect a ; several and are employed on staff. Both - and classes are offered. However, even in classes, additional instructional support and review are incorporated into the class paradigm through small group instruction and reading/language arts enrichment.

The program also includes academic enrichment classes which address organizational skills, reinforcement of academic instruction or writing and review of homework assignments. Each day begins and ends with an advisory period which supports the child’s ability to plan, organize and prepare for homework or class. There are students in classes; he is of in his integrated subjects.

Mr. is additionally employed by to teach grade science and is teacher. The witness described a student who was a “ ,” demonstrating in , and processing speed. In addition, the witness observed that the student exhibits an which affects his his . Although has age intelligence, he with and and tests approximately level. The child’s writing skills are similarly as he experiences his thoughts and dwells upon the spelling of each word. March 5, 2012 Tr. at 41. Although the child exhibited math skills, he similarly demonstrated with calculations and problem solving. The witness noted that the child’s had a impact upon his ability to answer math problems as did his reading . Ibid.

addresses deficits with the approach, . His instructors utilize a approach to teaching and associations. The student participates in reading classes in which decoding, spelling and writing are stressed. These language arts classes last for minutes per day and occur daily in small groups of . Where instruction requires notetaking, emailed notes are furnished to the student. When primary materials require considerable reading, support is offered through group reinforcement and review.

The child is additionally assigned to math class in which the students are generally to years grade level. The class follows a specialized curriculum called math. The curriculum focuses upon deep mastery of a skill as opposed to many traditional programs which introduce students to a sampling of many math skills. Ibid. at 43. In this manner, students are to develop an conceptual understanding of problem solving so that skills do not their ability to forward with more advanced problems and subject areas.

is additionally learning to type on a word processor and employs a program known as . The student receives and intervention on site for hours per week through push-in services. Based upon the child’s performance upon curriculum based assessments, Dr. concluded that is making progress in both his and mainstream classes. Ibid. at 51. In sum, he opined that had provided with an appropriate education which met his special education needs.

The Parent additionally testified. She noted that her son began receiving special education services in grade. At this time, the Department of Education recommended that receive and along with SETSS for hours per week. The child availed himself of these services for years. In April 2011, at the urging of SETSS teacher, . requested a re-evaluation as her son did not seem to be making any progress. Exh. . She further indicated that she would not be continuing enrollment at as her son required a educational environment. In furtherance thereof, Ms. . reiterated her requests for a CSE convene. Exh. C. March 5, 2012 Tr. at 65-68. On June 9, 2011, the Parent attended a CSE meeting and registered her objection to the program recommended. She noted that her other child attends public school and that she has consistently participated in a public school for the School, a placement which stresses class instruction and innovative methodologies.

On August 24, 2012, the Parent again wrote to the Department of Education indicating that she had still not received a placement for her son. Exh. H. She noted that she would now be placing her child at and additionally requested busing. Despite several communications to the Department of Education, the Parent received no response. Ultimately, no busing was provided until October 21, 2011 and the witness testified that, as a result, she incurred transportation expenses in the amount of $ Ibid. at 77; Exhs. T, U, V. In sum, the Parent testified that she is pleased with success at . Her son now attending classes, is reading and and in his studies.

Finally, , M.D. testified. Dr. is an Associate Professor of at the of She is additionally a Board certified who specializes in developmental The witness is familiar with and most recently evaluated the child on May 19, 2011. Exh. E. At this time, Dr. administered the test, the Evaluation of School Related Skills, the Integration test, the Behavior Assessment Scale and the Scale for Children. Based upon these measures, the witness concluded that possesses normal to above normal cognitive capacity, but from a characterized by a . She noted that the child does not have , nor did he have a which would with his learning. March 5, 2012 Tr. at 90. Given this profile, Dr. recommended a small, structured special education setting for children with reading disabilities. The Parent's Position

The Parent asserts that the School District stands in abrogation of its duty to provide with a free and appropriate public education for the 2011-2012 school year in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). In view of the above, the Parent maintains that she was compelled to unilaterally place her child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). Consistent with her argument, the Parent contends that constituted an appropriate placement for her son during the 2011-2012 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

Was an appropriate educational placement for during the 2011-2012 school year?

As the Department of Education has conceded prong one of Burlington, supra, the only issue before me concerns the appropriateness of and the Parent’s equitable entitlement to reimbursement.

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

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

I find, at the outset, that the program offered at correlates well with the student’s functional needs. The child’s are addressed daily through small group instruction and a specialized reading program by instructors trained in methodology. This is entirely appropriate for the student and his decoding The student, moreover, participates with peers whose functional profiles are consistent with his own and additionally has the opportunity to participate with his mainstream peers in core academic subjects. ability to function appropriately in mainstream classes is achieved through various accommodations and modifications. These include small group instruction in which repetition and review occur. Subject content is stressed in a manner which minimizes the student’s ability to decode and highlights the core content itself. The child additionally receives a specialized based curriculum as well as a daily intensive reading class. Beyond this, in executive function are addressed through morning and afternoon advisory periods which facilitate the student’s ability to plan, organize and prepare for homework or class. Note-taking is minimized and Dr. testified that when necessary, written materials are furnished via emails.

As indicated by Dr. , is additionally learning to type on a word processor and to employ a program known as . He is, moreover, able to receive his and on-site in a pushin paradigm so that can support and reinforce material he is actually learning within class. “[U]ltimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In this respect, testimony regarding the student’s progress is credible and uncontroverted. Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 20112012 school year?

I find that there are no equitable factors which militate against the Parent’s right to recovery. The evidence indicates that Ms. . participated willingly in her son’s CSE convenes, permitted evaluations of her child and shared private assessments she had obtained herself. Ms. . has attempted to work collaboratively with the Department of Education, but has been unable to engage anyone on behalf of the Department of Education to address her concerns. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition. Conclusion

The parent’s request is granted. Wherefore, it is hereby ordered that:

Upon due submission of proof of payment along with an affidavit from the School, the Department of Education shall reimburse the Parent for tuition expenses at School for the 2011-2012 school year.

The Parent shall be reimbursed for all travel expenses associated with attendance at School for the 2011-2012 school year up until but not including October 21, 2011 in the amount of $ Dated: March 20, 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 Impartial Hearing Request, 9/14/11, 3 pp. B Letter to , 4/7/11, 1 p. C Letter to and Fax Confirmation, 6/7/11, 2 pp. D Due Process Response, 9/21/11, 3 pp. E Pediatric Evaluation, 5/19/11, 4 pp. F Report, 4/29/11, 3 pp. G Literacy Evaluation, 5/30/11, 3 pp. H Letter to with Cover Page and Fax Confirmation, 8/24/11, 3 pp. I and Progress Report, 5/25/11, 3 pp. J Notice of IEP Meeting, 5/26/11, 2 pp. K First Quarter Report Card, 2011-2012, 3 pp. L Performance Profile, 10/2010, 1 p. M Request for Physical Examination, 6/6/11, 2 pp. N Payment Records from Prep, 10/18/11, 1 p. O Contract, 9/2/11, 2 pp. P Student's Schedule, 2011-2012, 1 p. Q Grade Program Description, 2011-2012, 5 pp. R Attendance Record, 2011-2012, 1 p. S Proof of Payment to Various Dates, 3 pp. T Monthly Travel Expense Report, 9/2011-10/2011, 2 pp. U EZ Pass Invoice, 10/1/11, 3 pp. V Toll Ticket Book, Undated, 2 pp. W Additional Proof of Payment Statements, Various Dates, 14 pp.

IMPARTIAL HEARING OFFICER

I IEP, 6/9/11, 13 pp.