New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: February 6, 2012

March 15, 2012 Actual Record Close Date: April 18, 2012 Hearing Officer: Gary D. Peters, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2012

Attorney — Student

Mother — Student

Father — Student

Head Master- — Student

Teacher — Student

Department Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2012

Attorney — Student

Mother — Student

Teacher — Student

Teacher — Student

Department Designee — DOE

INTRODUCTION

On February 6, 2012 and March 15, 2012, I conducted a hearing pursuant to the Individual Disability Act (IDEA) 20 U.S.C. 1415 (f) (3), regarding impartial hearing case number 135584. The hearing was commenced at the impartial hearing office, 131 Livingston Street, Brooklyn, New York. The parent submitted a request for an impartial hearing, through their attorney, on October 10, 2011. The Department of Education, hereinafter referred to as “The Department” was represented by its designee, and the Parents were represented by their counsel . A list of witnesses who testified and documents received into evidence are attached hereto.

BACKGROUND

The student is currently and fifteen (15) year old male, who is classified as “hearing impaired”. On March 11, 2011, a Committee on Special Education (CSE) meeting was held to develop an IEP for the child hereinafter referred to as “ ” for the 2011/12 school year. The team recommended a general education with a staffing ratio of 8:1, with SETSS, 3 periods per week with the following related services: Hearing Education Services and Counseling, one time per week individually for 40 minutes for each service. Additionally, the student was recommended to participate in state and local assessment with accommodations, including extended test time taking, directions and questions to be read and re read aloud, and auditory amplifications.

THE PARENT’S POSITION

The Parents are seeking reimbursement of tuition paid to York, as well as all fees incurred as a result of enrolled in the School’s . The Parent asserts that the CSE review was substantively and procedurally flawed, that the Parents were deprived of the opportunity to meaningfully participate in the development of the IEP, the IEP developed at the meeting is inappropriate, the CSE failed to develop an appropriate IEP, that the CSE team was not a duly constituted body, that the CSE failed to recommend an appropriate program for , and that the CSE failed to offer an appropriate placement for .

Additionally, the Parents maintain that the Department through the CSE has failed to offer a Free Appropriate Public Education (hereinafter “FAPE”) to and that the school selected by the Parents, York with the , is the appropriate placement for s academic, social and emotional needs and that the Parents fully cooperated with the CSE and in no way impeded it from offering an FAPE.

THE DEPARTMENT OF EDUCATION POSITION

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

THE PARENT’S CASE

Mr. , the headmaster of York for over 42 years testified and described as a fully accredited New York State and Middle State Association School. He stated that is an inclusion program, providing special education instruction to over a third of the student population. He testified that the school is small and that approximately one third of them are enrolled in the , wherein students come into school early and stay at the end of the school day for extra help; the program is administered by a NYS certified teacher. The program was established to provide assistance to students that require special attention to assist in developing their skills.

He testified as to how the school was designed to specially craft a program for each child in order to afford every student with an opportunity for success. Mr. explained how the school groups children according to their ability in each subject, allowing the school to present appropriate instruction for the children with different learning needs (tracking). He discussed how the teachers at have experience with children that have learning issues, explaining how the weaker tracks are taught by Jump Start teachers or classroom teachers that been given faculty development in the strategies needed by the department. He also explained “Edline” as a wonderful tool to provide structure and assistance to learning disabled students. He explained the important relationship between the Jump Start teachers and the classroom teachers and how the Jump Start teachers maintain regular contact with the subject teachers. He testified how the classroom teachers employ special education strategies such as scaffolding, chunking, checking in, handouts and structure to the students to address their needs. He testified to the incredible success of his program, citing that 100% of the students go on to college. Lastly, this witness stated that being in a general education environment clearly did not work for and resulted in being home schooled for 1 ½ years; he concluded by stating that was appropriately placed at and making meaningful educational progress.

, teacher testified after being duly sworn, and stated that she is a special education teacher and certified in Math. Additionally, she explained the day to day needs of the student as set forth in Dr. ’s report and explained in great detail, how she implements supports for . More particularly, for comprehension, she reviews the work at a slower pace, teaches/re-teaches, repeats/rewords lessons, utilizes annotation, highlighting and requests that “paraphrase to establish understanding”.

The witnesses stated that has moved up in the ‘tracking’ system. She stated Micco is doing well and that he is overcoming his “anxiety in relationships to school. She also noted that has made strides to deal with his hearing deficits and is taking American Sign Language (ASL) to assist him to learn.

Ms. ’s classroom/history teacher also testified that she has been teaching for 13 years. She explained how she modifies ’s instruction to meet his needs. receives preferential seating due to his “hearing impairment”., and takes the time and effort to make sure that the can see her “face” while she instructs so that he doesn’t miss out on what is being said. She also utilizes visual cues as needed. The witness stated she provided videos with subtitles and music with lyrics I order that can learn. Additionally, the witness stated that in terms of comprehension, she supports by selecting appropriate texts and checking for comprehension. She explained the concept of ‘chunking’ to break down materials in to small pieces so that the lesson may be learned. She also keep “checklists’ to track that the students are being taught and for grammar. With respect to ’s executive functioning difficulties, has made great strides and his self esteem as described as tremendously improved. He is able to talk about his impairments in order to self advocate. The witness also testified that she prepared a special social studies notebook, which has dedicated sections that match to the lesson being taught.

Mr. testified that he is a New York State certified English teacher. She works with to assure that lessons are being taught at a slow pace, he utilizes checking for understanding, high lighting, annotation, read aloud/rephrasing, , which are critical to assure that the subject matter is being understood.

Additionally, the witness stated that in writing he utilizes and teaches the children to develop a five paragraph essay, wherein the child uses mulit sensory techniques, modeling with the projector writing and for comprehension.

The Parent, hereinafter referred to as Ms. stated that her son is currently 15 years old and currently attending at the . She explained that during a routine screening in first grade that was diagnosed with a bi lateral hearing loss. She took him to an audiologist who commented that it was in fact a sensory neural hearing loss, which required that her child utilize analog hearing aids.

Ms. . stated that during second grad, received an IEP, which was required in order for him to secure services and an , which is a transmitter and receiver. As a result of this experience testified that her child’s self esteem was diminished. By the time he reached , preparing for middle school, the situation began to worsen. By the time he entered middle school, was . He was placed in a general education class where there was “ . It became mornings. He was stated to be finally stated to his Parents that “I ”.

The witness stated that was sin therapy with Ms. , who referred him to an entity called , which provides home tutoring. The parent stated that she went to school and met the principal and school guidance counselor and was informed that there were no other changes that could be made, regarding class size or instruction. She stated that with the home instruction was transformed and had attained all “A’s” by end of and continued with home schooling into .

The witness stated that she went to a “Home Schooling Board Fair” in order to educate herself on what possibilities there were for high school. The witness attended a CSE meeting for the 2011-1012 school year. She stated that she put the school on notice that she considering a private placement. As a result of the CSE meeting, was recommended for a general education class with SETTs, and she rejected same as required a small class, with support. she visited the recommended placement, rejected same and requested another offer and did not receive one. She fully cooperated with the team, attended meeting and provided all evaluations, including a neuropsychological evaluation performed by Ms. .

The witness stated that she visited and the . Schools. She and her husband selected , signed the contract, sent a deposit on March 12, 2011 and paid for “tuition cancellation insurance”, so that if the CSE team made an appropriate recommendation, they would send to a public school.

Lastly, the Parent stated that her child is making meaningful educational progress at She stated that academically, he is doing “really well”. He currently had an in his core subjects. He has friends, takes pride in own ability and hi confidence level is way up.

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 Burlington Carter Analysis, however requests that reimbursement if any be limited to 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. UnionFree 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-Four 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) (Burlington~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 ran 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 Ronan’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 Burlington/Carter 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 school ( that they have unilaterally chosen for is appropriate. The testimony from witnesses from 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 program including the ” was 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 Appeal NO.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 supra, 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.

Based on the evidence and testimony at trial, the relaxed standard of . and for all the foregoing reasons, I award full reimbursement for the and for the program as herein ordered. Dated: April 19, 2012 Corrected Date: April 24, 2012 (Correction Made to Actual Record Close Date)

_______________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:jj

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 , 10/10/11, 6 pp. B IEP, 3/11/11, 10 pp. C Reports, 3/5/10 and 4/17/10, 18 pp. D Letter, 3/9/11, 2 pp. E Parent Letter to Committee on Special Education, 3/4/11, 2 pp. F Parent Letter to CSE, 8/23/11, 3 pp. G Parent Letter to CSEe, 9/21/11, 2 pp. H Contract, 2011-2012, 4 pp. I Proof of Payment, 2 pp. J School Report Card, 2011-2012, 1 p.