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 12, 2011

January 5, 2012

Actual Record Closed Date: January 25, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 12, 2011

Esq. Attorney Mother — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 5, 2012

Esq. Attorney Mother — Parents

Director (via telephone) — Parents

Director of Services, School (via telephone) — Parents

Director of the Program (via telephone) — Parents

School (via telephone) — Parents

CSE Representative — DOE

The matter of . came for hearing before me on December 12, 2012, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On September 27, 2011, I was appointed as impartial hearing officer. On November 8, 2011, I scheduled this hearing for December 12, 2011. On December 9, 2012, the Dept. of Education (DOE) representative requested an adjournment of this case and the parent‟s attorney did not agree to the adjournment. The hearing commenced on December 9, 2011 and concluded on January 5, 2012. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is January 25, 2012 and the compliance date for issuing a decision is February 8, 2012. This hearing was convened at the request of the parents through their attorney. The request was received on September 27, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner‟s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district‟s Committee on Special Education (CSE). The hearing was initiated the parents of ., who challenge the January 19, 2011, review and recommendation of the Committee on Special Education.

The parents unilaterally placed their son in the , a special education program located in the ). is a private school located . It is a private entity lacking State Education Department approval. ‟s parents funded this placement from September, 2011, through the present and now seek tuition reimbursement and retroactive tuition reimbursement for the 2011-2012 school year. The parents stipulated that they were not seeking transportation costs for (trans. 19).

BACKGROUND

old boy. He is a and is currently attending in the , a special education program within comprised of only special education students. District ‟s CSE classified as and recommended receive resource room, art, special education teacher support services (SETSS), modifications, and and 's classification is not in dispute (Exh. A; trans. 14). For the 2011-2012 school year on January 19, 2011, District

‟s CSE classified as learning disabled and recommended that be placed in a general education class and receive SETSS, testing modifications, and related services of twice a week for thirty minutes per session (Exh. A at 2). The parents challenged the January 19, 2011 IEP review and disagreed with CSE‟s placement. They maintained that District failed to provide a free and appropriate public education (FAPE) and they placed . The parents‟ submitted proof of payment in the amount of $14,533.32 (Exh. I) and a cancelled check in the amount of $ dated September 20, 2011(Exh. M). They further submitted a credit card statement indicating tuition payment in the amount of $ dated October 7, 2011 (Exh. N at 2) and a credit card statement indicating tuition payment in the amount of $ dated November 15, 2011 (Exh. O at 2). The parents request tuition reimbursement in the amount of $ The parents also request prospective payment to in the amount of $ to equal the amount of tuition of $ (Exh. H at 2) for the 2011-2012 school year.

, Ph.D., conducted a on July 18, 2011, and noted 's overall IQ was on the for Children – Fourth Edition was in the range; the verbal score was , and the subtests scores ranged from and he scored in the on tests which did not require language organization (Exh. D at 4). She found his visual-spatial organization skills were (Exh. D at 5). She noted that his overall testing revealed was a with a and that he had difficulty expressing his thoughts in an organized fashion, difficulty in decoding and comprehension, and his fluency in reading, writing and math was (Exh. D at 10). She further concluded that “exhibited problems with , , and , issues associated with an , ” (Id.). She recommended that be placed in a small special education class with other students with in a small school where he will receive on a daily basis in a structured class using a to address his (Exh. D at 11).

THE DEPT. OF EDUCATION‟S CASE

The Department of Education (DOE)‟s case was presented in the testimony of Mr. who conceded that FAPE was not provided for the 2011-2012 school year (trans. 14). Mr. further conceded prongs one and three of the Burlington/Carter test (trans. at 6, 61).

THE PARENT‟S CASE

Ms. mother, Dr. , the Director of the entire , , , in support of the parents‟ claim for tuition reimbursement for the unilateral placement of . The parents are seeking approximately $ for tuition for the academic year 2011-2012. Ms. . testified that could not function in a general education class with SETSS because he could not function last year in the ) general education program with one hour per days of resource room (trans. 28). She stated that her son had been at since he was years old and with (trans. 29). She recalled that during the grade, even with modifications to his program, her (Id). She recalled that at in grade, he seemed to know the (Id.). She recalled he . She stated he was as he could not continue at . She further stated that she visited in the spring of 2011 because it had a special program to meet the needs of children with and (trans. 35). She found small classes and teachers using a (trans. 38). She stated that she observed that skills addressed in one subject were reinforced by incorporating those skills into other subjects (Id.). She stated that the kids seemed and not (trans. 37). She recalled that she during the fall of 2011 and his was pleased with his progress (trans. 41). She opined that he progressed in his because now he was able to outline and he improved in his reading fluency since he started at (trans. 41-43). She further opined that her son improved in his writing (trans 42). She stated that she communicated with his teachers regularly and his teachers told her they were pleased with ‟s progress (trans. 41). She stated that she paid $ and was requesting reimbursement for $ and requested direct funding to of $ to meet the total tuition of $ (trans. 44; Exh. H).

On cross the parent explained that struggled in the general education placement with resource room services at because no teacher trained in or worked with (trans. 58). She maintained he progressed at because of its structure and its staff of licensed special education teachers and its small classes (Id.).

Dr. , Director of the at , testified that he had a Master‟s degree in Educational Psychology and School Psychology and had worked with learning disabled students for the past twenty-five years (trans. 117), and that he had been with for the post twelve years (trans. 118). He stated that as Director of the he was met with the teachers, planned curriculum, reviewed the test results and developed appropriate programs and taught classes (Id.). He described as a general education school with students from grades Kindergarten to eighth grade (trans. 119) He described the and noted it was comprised of students with various (trans. 121). He stated that in the Program the students receive differentiated instruction or special instruction, depending on their learning needs (Id.). He further described the differed from the regular program at because students in the received extra support in language arts, reading and writing (trans. 122;130). He stated that the students were grouped according to their strengths in individual subjects (trans.123). He noted that students might be placed in a more supportive class for language arts and placed in a more advanced class for mathematics (Id.) He stated that the teachers used a like the and instruction was given in (trans. 124). He provided an example of using hands-on material such as a (trans. 126). He noted that progress was measured by teacher-developed or curriculumdeveloped assessments, as well as informal assessments based on a student‟s class work (Id.).

, the Director and Teacher Consultant at , testified she was certified in New York State in general education and special education from nursery through twelfth grades (trans. 70). She stated she had taught a general education class in New York City public school as well as a collaborative team teaching class and had worked with children with learning disabilities, , children classified as and other health impaired. She further stated she was the Director and Teacher Consultant for the last nine years (trans. 71). She described the as a program within that was designed to meet the needs of children with (trans. 72). She stated that prior to his admission, she assessed decoding skills were grade level; he had difficulty initiating writing assignments and maintaining topics, and interpreting word problems was challenging for him (trans. at 74-75). Ms. concluded that would be appropriate for him as the Program had students with similar deficits in that grade (trans. 75). She stated that was placed in the for the fall of 2011. She described during the fall of 2011 as , but was (trans. 73). She noted ‟s main issue was (trans. 76-77).

She noted that the staff used . She further noted that his reading teacher taught him how to find textual clues to assist in reading comprehension. She related that the staff used graphic organizers and sentence starters to address his (trans. 78). She further related that in reading, math and writing the curriculum was modified and manipulatives were used to improve his comprehension and organization (trans. 79-83). She stated that his in the had , reading (trans. 84; 110). She opined that was appropriately placed in the class in terms of academic needs and (trans. 85). She recalled that was mainstreamed for some subjects, including physical education and his other “specials,” and has performed well during those periods (trans. 94).

She noted that was in a group of students in his language arts class, his social studies class and his science class. She recalled that the teacher, Ms. , a certified literacy teacher used , a for word study. She stated that she consulted with Ms. and described the techniques that Ms. utilized included , , (trans. 92: Exh. L at 2). She recalled in math, his class had two teachers and students so there was a staffing ratio of . She further recalled that his math class was taught by , a pending special education teacher and , a Master‟s level general education teacher and that she consulted with both math teachers (trans. 95; L at 2). She stated that the math teachers used tactile manipulatives such as “flats”, a big flat square with notches to represent one hundred cubes,(trans. 111). She further stated that his teachers used pre-teaching and re-teaching as required (trans. 97). She opined that he progressed throughout the 2011-2012 year and relied less on his and (trans. 102). She further opined that he progressed in his written expression (trans. 105). She stated that she was in ‟s class three times a week to observe how he was working with the once a week to consult and ensure that ‟s program met his needs.

, Director of the at for nine years, testified that she was a for 33 years and had a Masters Degree in and was certified in New York State as well as the American Speech and Hearing Association, with a Certificate in Clinical Competence (trans. 131133). She stated that she supervised the four that serviced the children with difficulties both by pushing into to class and out of class in a small group setting (trans. 132). She stated that she consulted once a week with the therapists and that she assessed on October 26, 2011, with the Evaluation of -Fourth Edition, and found had specific impairment (trans 136; Exh. G at 2). She stated that had because of his (Id.). She further stated that of such as and that he (trans. 137). She stated that she modeled the with ‟s therapist, (trans. 139). She further stated that she supervised Ms. and met weekly to monitor ‟s progress. She related that she met with the Director of the , Ms. , and his reading teacher to ensure progressed in his issues (trans. 140). She noted that required specific structure and scaffolding and guiding to address is (trans. 141). She opined that because of her work and the work of the classroom teacher and doing the same program, progressed in his ability to (trans. 143-144). She noted the use of visual supports, graphic organizers and Sentence Starters enabled him to complete a task independently (trans. 146). She further opined that his teachers had noticed progress by his ability to write a check list for himself and in his ability to make connections (trans. 147). She stated that he was more confident and relaxed in his interactions with his peers and his teachers (trans. 150).

, , testified that she had a Masters degree in Pathology and that she was a for for the past two years (trans. 154). She stated that she met with twice a week in a group and once a week individually to work on . She opined that he progressed in his and (trans. 156). She stated that she had spoken with his classroom teacher three times a week to discuss ‟s major projects and issues in the classrooms. She further stated that she provided ‟s teachers with tactics she used to work with him in the classroom (trans. 159). She opined that progressed in his awareness of his and his confidence improved especially in language arts as evidenced by his responses and raising his hands (trans. 160).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student‟s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child‟s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent‟s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The District representative conceded that was not offered an appropriate program for the 2011-2012 school year and conceded the first and third prong of the three-prong Burlington/Carter analysis.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2008-2009 school year (Application of a Child with a Disability, Appeal No. 02-93; Application of a Child with a Disability, Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 02-080). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). 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. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007])

The parents‟ attorney argued in his closing brief the “issue of the private school's appropriateness depends on whether was „reasonably calculated to enable the child to receive educational benefits.‟ Frank G., 459 F. 3d at 364. Parents need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement. Frank G., 459 F. 3d at 365” (IHO Exh. I at 6).

The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115.

Testimony by the parent and the staff at and evidence submitted by the parents established that the parents have met their burden regarding the unilateral placement of . I find his small class settings, the use of multi-sensory approach in , the experienced teachers, as well as the use of manipulaives such as graphic organizers, “flats”, “number lines” and Sentence Starters addressed his learning disabilities needs. I find the program curriculum was modified according to his needs. I credit the testimony of the testimony of the staff at and find was appropriately grouped with other students who struggle with similar issues and had opportunities for mainstreaming. I credit the testimony of the pathologist and therapist who ensured that all people involved in 's education have an understanding about his language-based and make adjustments in the class to meet his needs. I find the provided the appropriate program that Dr. recommended to address ‟s needs and he in improving his and his . I find was placed with students with similar deficits I find individualized instruction was provided in academic areas. I find his were addressed in the and the provided educational instruction that was specifically designed to meet his needs. I find made meaningful progress in his .I credit the testimony of the Director of the and the and I find the parents established the second prong of the Burlington/Carter analysis.

The district representative conceded that equitable factors supported the parent‟s claim for reimbursement. The record was replete with the parent‟s efforts to cooperate. The parents participated and attended all meetings and repeatedly requested a placement (Exh. B,C, E &F). I find the parents established the third prong of the Burlington/Carter analysis. Therefore, I find the parents are entitled to reimbursement for $

I note that the parents‟ evidence of three payments totals $ yet the total amount received shown on the affidavit of payment (Exh. I) is $14,533.32. The affidavit of payment indicated $ less than the total of the proof of payments. Since, I cannot reconcile these amounts, I credit the affidavit of payment and I find the parents are entitled to tuition reimbursement in the amount of $

The parents requested direct funding to of $ to meet the total tuition of $ at . The tuition for the 2011-2012 school year was $ (Exh. H) and request direct retroactive payment for the portion of the tuition they were financially unable to pay. Direct retroactive payment is an appropriate remedy in proceedings under IDEA (Mr. and Mrs. A. v. N.Y.C. Dept. of Educ., 09 CIV-5097 (PGG)(S.D.N.Y. February 1, 2011)). I find the parents are entitled to an Order directing the DOE to pay for the 2011-2012 tuition by issuing direct payment. Further, the parent‟s attorney asserted in his post hearing closing statement that “where parents have satisfied each of the Burlington/Carter factors, a court has broad discretion to "grant such relief as . . . is appropriate" including direct payment of private school tuition. Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). A court may require a school district to pay a private school directly and prospectively for special education. 20 U.S.C. 1415[i][2][C][iii].” (IHO Exh. I at 20).

ORDER

I order that the DOE shall provide tuition re imbursement to the parents for the 2011-2012 school year in the amount of $ upon proof of payment acceptable to the DOE and the DOE shall directed to remit payment to in the amount of $ within thirty days of the submission of proof of attendance. Dated: February 8, 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 ON DECEMBER 12, 2011

A Impartial Hearing Request, 9/26/11, 7 pp. Parents

B Letter to CSE, 6/21/11, 4 pp. Parents

C Letter to CSE, 8/4/11, 3 pp. Parents

D evaluation by Dr. , 14 pp. Parents

E Letter to CSE, 8/22/11, 3 pp. Parents

F Letter to CSE, 9/15/11, 3 pp. Parents

G Assessment, 10/21/11, 8 pp. Parents

H Enrollment Contract,9/20/11, 3 pp. Parents

I Affidavit of Payment, 12/5/11, 1 p. Parents

J Attendance Record,12/1/11, 1 p. Parents

K Report Card,12/2/11, 9 pp. Parents

L Class Schedule,12/7/11, 3 pp. Parents

M Check 891, 9/20/11, 1 p. Parents

N Tuition payments on American Express, 10/7/11, 2 pp. Parents

O Tuition payments on American Express, 11/15/11, 2 pp. Parents

POST HEARING SUBMISSIONS

I ‟s Closing Statement, 1/30/12, 21 pp. IHO