Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 5, 2011

Actual Record Closed Date: February 1, 2012

Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2011

Attorney Mother — Parents

Grandparent

Clinical Director — Parents

Teacher — Parents

Social Worker/Counselor — Parents

Department Designee — DOE

INTRODUCTION

On December 5, 2011, I conducted a hearing pursuant to the Individual Disability Act (IDEA) 20 U.S.C. 1415 (f)(3), regarding impartial hearing case number . The hearing was commenced at the impartial hearing office,

. The parent submitted a request for an impartial hearing, through their attorney, on September 15, 2011. The Department of Education, hereinafter referred to as “The Department” was represented by its designee, and the Parent were represented by their counsel, . A list of witnesses who testified and documents received into evidence are attached hereto.

BACKGROUND

The student is currently an ( ) year old , who is classified as “ ”. On November 29, 2010, a Committee on Special Education (CSE) meeting was held to develop an Individualized Education Program (IEP) for the child hereinafter referred to as “ ” for the 2010/11 and part of the 2011/12 school year. The team recommended a special class with a ten month classroom. Initially, related services were recommended including , twice a week for 30 minutes individually, and and , twice a week for 30 minutes individually. Additionally, the student was recommended to participate in state and local assessment with accommodations, including extended test time taking, directions to be read and re read aloud, flexible seating in a small group with no more than students.

THE PARENT’S POSITION

The parents maintain that the IEP was procedurally and substantively invalid, more particularly, that it was not reasonably calculated to confirm meaningful educational benefit upon the student and did not set forth appropriate goals for the 2011/2012 school year. Additionally, the parent’s maintain that the recommended placement was not appropriate for the child and are also seeking compensatory damages.

THE DEPARTMENT OF EDUCATION POSITION

The Department conceded Prong I of the , and challenged the appropriateness of the parent’s unilateral placement.

THE PARENT’S CASE

The first witness to testify was , who stated that she is employed by the School in , as a for the elementary/middle school. Her responsibilities include overseeing the services that are provided to the student’s related services, and to ensure that the IEP’s are properly being implemented and served. (T. 12) Additionally, she participates as needed in IEP updates to make modifications on services and in the screening of prospective candidates for admission to the school (T. 13).

Ms. stated there are currently students in the and school and that the school services children from grade through grade. The school services children with various , including . Currently, there is one child in the school. She described the classrooms as being either settings, depending upon the room and composition of the classes. The classroom has a head teacher and assistant in each classroom (T. 14). The witness further stated that the School is certified by the State of New York and is an approved and funded non public school with tuition of approximately (T. 15).

The witness testified that she is familiar with through the admission process and met him and at the t and at the . To the best of her recollection, the child began attending the school on September 8, 2011 which was the first day of school (T. 16). He receives , as mandated by his IEP and school one time per week as recommended by Dr. in a evaluation and additionally on an as needed basis (T. 17). The child also receives reading instruction twice a week for 45 minute sessions, with a reading specialist, as he has significant reading delays including , and reading needs (T. 18). The witness described the teaching environment as a approach, so that the children learn through different modalities. The specialized writing program is provided with a template/model, and a sequential step by step method of writing, wherein the children learn to work on expanding words to sentences and paragraphs (T. 19). Additionally, there are , wherein the teacher wears a microphone so that her voice is amplified and that if her back is turned, the children may continue to hear. The children also utilize Smart Boards in each classroom which assist in multi sensory learning (T. 20).

Ms. stated that in her opinion, the child requires a month program as he has significant delays in learning and has significant ( ) with (T. 21). She opined that the continuity of instruction and support will permit him to continue to progress without significant regression over the summer months.

Upon cross examination of the witness, she reiterated that in order to properly assess the child, she requires current and or educational testing with social history up date. Further, if there was an IEP, she would need to review same to see if the child is potentially appropriate (T. 24).

The witness further stated there are typically three people employed in the screening process, including herself, the school principal, , and a curriculum coordinator, or (T. 25). With reference to , the witness stated she recalled that there were two psychological evaluations and she had specific recollection of an evaluation by Dr. , as it contained compelling information to assist her to understand the child’s needs

(T. 26).

Upon further questioning, the witness stated that had a complex profile and was a child with a significant specifically in the areas of reading, writing and spelling; he also had significant that his (T. 27).

The witness stated that the School was appropriate as it provides a safe, secure, nurturing and learning environment, where could receive the learning and teaching which he requires. She further stated the school was appropriate for the child, as he was without a approach to learning, where he could receive the reading and writing support, not just on a scheduled basis but as an “as needed basis” in a small setting (T. 28).

The next witness to testify was , who after being duly sworn, stated that she is the child’s grade teacher at the School. There are currently students in her class and a teaching assistant (T. 35). She stated that is classified as having and . She described his as “going across the board” with significant in ; , and the to out . He also had in ; both on paper (T. 36). She described his as the type where he is , both , physically and easily (T. 36).

The witness described the extent of ’s and stated that he is incapable of at a pace and can if it is provided at too a pace. She described his in the area of “ ” (trans. 37) and stated that could information if it was and in “ ”. However, when it is presented in an paragraph, he often and has same.

demonstrated a for (T. 38); Ms. stated that the child’s itself in things like to do work (T. 38).

Ms. stated that in her classroom, there is “ ” work wherein he receives a . often tends to play so he needs reinforcement to set boundaries as to what is a work tool and what is a play tool. She describes his and stated that he is at a grade and has issues. She uses so the children do not have to right down a number but instead they lay out cards in the correct order which puts less pressure on them.

Ms. described a typical learning period, wherein her assistant works with and that it took to weeks than other students to learn to carry and regrouping of numbers and that he requires to his (T. 41). She stated that has made in ; more particularly, when he came in his to use a line did not . There is in his and of , as well as a , when he began doing . Although he still requires prompting, she described his attitude towards math as being “ ”. (T. 42).

The witness stated that the ’s reading levels were at grade and that his decoding skills were his comprehension skills (T. 43). With prompting and one on one instruction, decoding strategies were . She stated that his span make reading , as he becomes and . Consequently, receives one on one reading support in the classroom constantly, and is positioned her when she is teaching (T. 44).

The witness described ’s progress in reading as . Although he has in sounds, he is getting the idea of the words and one to the next word on index cards to . He is to read aloud with another student and doesn’t as he did (T. 47). She reiterated that is slowly , but needs a amount of and “ ”. (T. 47). He constantly receives and cues to get on including a tap on the desk, saying his name, or other reminders to bring him to (T. 48). The witness utilizes several positive reinforcement systems, wherein there is a school like point system where students can have privileged activity once a week (T. 49). She stated that enjoys the token reward ticket system and likes to accumulate and count tickets, wherein he can trade them in for rewards (T. 49).

Ms. stated that with respect to the child’s needs, was to and for instance, when in the hallway to announce the end of a period, he would be set off into an (T. 52). In response to this situation, she him as from the as possible, and would close the door to her classroom prior to the . Additionally, if an environment becomes too , he requests and is accommodated in being removed to another room where he can sit and and or the computer lab (T. 54).

The witness opined that required a 12 month program so that his skills do not regress. She stated he has a facts or procedures and needs . She stated that there are so many things stacked against the child to prevent him from learning, that it would be a disservice not to give him the continuity that he requires (T. 56).

Upon cross examination of this witness, she described how and in what manner her classroom was set up to provide for a experience. She described visual aids including Smart Board, reading aloud and breaking up the classroom into small groups with modeling and concept games. Also, letter and Digi Cards are utilized rather than have the children write in order to maintain their focus (T. 58).

The witness described websites that are utilized to allow the child to be self based in reading which is interfaced with individual learning. She stated that enjoys , and that she has students draw what they have written and read in order to demonstrate their understanding (T. 60).

Ms. testified that is classes, to times per week and he requires a walk or a period. She often has her assistant walk with him to the water fountain, to the bathroom and or to his office. At one point, this was happening a couple of times a day, and the situation is currently “a ”.

The witness reiterated that requires attention in a small, highly structured classroom with a positive learning environment wherein the pace is such that he does not get overwhelmed (T. 63). Additionally, she and her colleagues including a and , , and and reading teacher all collaborate on a regular basis to transfer thoughts into the classroom (T. 64).

The next witness to testify was who is employed by the School as a who stated that he meets with at least a week on a scheduled basis , however in reality he sees him times a week as needed (T. 70). He also stated that if it was his decision, counseling would be scheduled on his IEP times per week. Most often, he works with regarding his , and . He allows the child to , and suggests different strategies and stated that is open to (T. 71). He also stated he believes the child has made and does not come down to see him as often as he used to (T. 71). He stated that is very connected with him and utilizes his services in times of (T. 72). He also described occasions wherein the assistant teacher would bring the child to his office and that he would stay anywhere from 15 minutes to half hour (T. 72).

The last witness to testify was the parent who stated that she has always cooperated with the CSE and attended all meetings that she was invited to. She provided any and all evaluations as requested and answered any and all correspondence (T. 75). The parent further testified that she did notify the CSE of her intention to send her child to the School for the 2011/2012 school year and referred to her letter dated February 16, 2011 (T. 75). The witness also stated that she wrote a follow up letter on August 15, 2011 advising of her intentions as per Exhibits Dept. 6 and Dept. 7.

Upon further questioning of the witness, she stated that she has placed into evidence, the taxes for 2010 and that her economic situation for the 2011 school year would be lower, as her husband has passed away. She believed her income for 2011 would be approximately $77,000.00 per year.

THE DEPARTMENT'S CASE'

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U._S.C.section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v, 'Rowley 458 S.CT. 176, 179-81 [1982]; Frang G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student’s unique need provided inconformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd' ; FR Section 200-347. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5]aAJ; CFR section 300.13 [a] [2][i], .200. 1.116 [a][2]; 8 NYCRR 200.6 [a][IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent's claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence,County Sch. Dist-Foru v. Carter, 510U.S;7 [1993]; Cerra v. Pawling Center. School Dist. 427::F. 3d 186, 192 ,[2d Cir. 2005] "reimbursement merely requires a district to;:belatedly pay expenses; that it should have paid all along and would have borne in the first-instance had developed a proper IEP.

Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 9334; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were "proper under the act", (IDEA) (Buriingto~47-l U.S. at 370) i.e. that the private school-offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent's private placement is that it is appropriate not that it is-perfect (M.S. v Bd. Of Educ. 231 F. 3d 96, lQ5 [2d Cir. 2000] cert. denied 532 U.S. 9422001. The private school need not employ certified special education teachers, nor. have its own IEP for the student. While parents are not held as strictly to the standard of placement in the LR as school- districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

The final criterion of an award of tuition reimbursement is that the petitioners' claim .is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F..Supp. 2d 402; 4]6 [S.D.N.Y. 2005] '!ffd2006 W]. 23341.4Q(Zd cir, 2096);' Frank G..459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C: v. Voluntown Bd. Of Edu. 226 F. 3d 60,68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions and like matters (Wolfe v Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept, of Educ. 736 F.-2ds at773, 801.-02[1st Cir...1984] aff';l471U.s: 359~[1985];with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available’ for evaluation by the district or upon fining of Unreasonableness with respect other-action taken by the parents 20 D.S.C. section 1412 (a)(lO)(C)(iii) Warren G. v.-Cumbetland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such 'notice where compliance with the notice required would likely result in physical or emotional harm 20 U,S.c. 14122 (a)(C) (iv)(I)(cc)(II)(bb)"

Parents maintain that the Department failed to offer a FAPE that was "reasonably calculated to meaningfully address ’s unique and individual needs for speech and language and assistive technology related services supports, which would amply conform to the second circuits "reasonably calculated test for Prong II; and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III) Accordingly the Parents maintains that for the 20102011 they met the recognized test for / reimbursement relief.

A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised o full evaluations an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer, 34 C.F.R. section 300.110. In the instant matter the. Department conceded Prong I and the Department's position is that the parent must prove Prong II and Prong III.

I will not repeat the details of evidence where but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all of the witnesses who testified at the .hearing. With respect 'to the issues presented at the-hearing, I make the following findings of fact. That the parents have met their burden in proving that the services that they have unilaterally chosen for are appropriate. The testimony from witnesses for the School provided detailed information about the school and the testimony was credible regarding the educational services provided to and explained how the services meet his identified needs. The Parents have established that the implemented educational and related services were appropriate and that the child is making meaningful educational progress as stated more particularly above.

Equitable considerations for the fact finder to consider in determining whether reimbursement and-related relief is appropriate "include the parties" compliance or non compliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability AppealNO.05.::9~7 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp. 2d 530,533 - (N.DE.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773 ,801-02 (1st Ci9r. 1984) aff'd 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or. otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See spra, Appeal No. 05-087 (referencing Application of the-Board of Edu. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-Q49).

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

Regarding the Parent’s request for compensatory payment for the , I deny same as there was proof that the services were necessary or appropriate.

Based on the evidence and testimony at trial, the relaxed standard of . and for all the foregoing reasons, I award full reimbursement as herein ordered. Dated: February 2, 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

PARENTS

EXHIBITS DATE DESCRIPTION # PAGES

A 9/15/11 Impartial Hearing Request 8

B 11/29/10 IEP 18

C 10/10 Evaluation by PhD 6 D Parents Correspondence to CSE 7 E 2/14/11 School Contract 1 F 2010 Taxes 2 G Proof of Payment 4

H 2/8/11 FNR 1

I various Account History 1 J 12/11 Report Card 14

DEPARTMENT OF EDUCATION

1 9/15/11 Request for Impartial Hearing 8

2 11/24/09 IEP 13

3 8/20, 9/1, Evaluation 5

4 11/29/10 IEP 18

5 10/13, 10/16 Evaluation 6 6 10/20, 10/29 / Evaluation 6 7 11/2/10 Teacher Report 2 8 11/9/10 Teacher Report 2 9 11/29/10 Final Notice of Recommendation 1