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: January 26, 2012

Record Close Date: February 14, 2012

Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2012

Attorney — Student

Parents

Principal/Director, Academy (via telephone) — Student and (via telephone) — Student

NO APPEARANCES

Jurisdictional Statement

On October 12, 2011 I was appointed to hear the Matter of (“ ”) pursuant to the Individuals with Disabilities Eduction Improvement Act (“IDEIA”) 20 US Code Section 1415(f)(l). On November 11, 2011, following several days during which the undersigned was unable to contact the Department of Education, a hearing was scheduled for January 26, 2011. Thereafter, on November 14, 2012, January 11, 2012 and January 20, 2012, the Department of Education requested adjournments of the scheduled hearing date based upon scheduling conflicts. All requests were opposed by the Parent and denied by the undersigned. On January 26, 2012 the matter was heard. The Department of Education did not appear and following three courtesy telephone calls to wrong telephone numbers supplied by the Department of Education, a default was taken. Tr. at 4-6. It is noted that this is a Parental request for tuition reimbursement at the (hereinafter “”) for the 2011-2012 school year. In furtherance of this, 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 Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). 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 February 19, 2012. A list of persons in attendance and of evidence is appended hereto. No evidence was submitted by the Department of Education nor did the Department of Education respond to a signed subpoena dated January 12, 2012. 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 classified with a (hereinafter “ ”). The student is and profoundly . Specifically, she is - , requires complete for all and has . She requires for all of . Exhs. O-P, passim. Her and educational goals include in her , greater affect and . Exhs. P at 2; M. at

6. Most prominently, from an startle , an occurrence which precipitates the onset of and . The Parent testified that common such as or , flicking on, or someone produce . Tr. at 22-24.

Although the child had been previously placed in a Department of Education funded non-public school program, it soon became apparent that the placement was inappropriate. Specifically, the School’s inability to address the student’s for and elements within a setting was both and educationally inappropriate. During this time, the frequency of ’s , notwithstanding the assignment of a paraprofessional. The Parent noted that personnel were by ’s and was unable to as there was no knowledgeable staff familiar with and . As a result, in 2008, began classes at where she has remained until the present time.

On May 16, 2011, Mrs. . participated in a CSE convene for her child. Exh. E. The Parent noted that she was not provided with any evaluations at this time, but was referred to a placement in a District school. Thereafter, Mrs. . observed the Department of Education’s recommended placement and advised the CSE that it was inappropriate. Specifically, the Parent observed that the large number of students and personnel within the classroom and school would the child’s . Beyond this, Mrs. . was directed to a cooking program in which the students participate. As can only a , the student would be unable to participate in this programming. On August 17, 2011, the Parent advised the Department of Education of her concerns. To date, no other placement or program has been recommended.

Mrs. . testified that she is extremely pleased with the programming at . She noted that the School has initiated a program directed at and the of . Moreover, the student has been provided with while doors have been in an effort to . The student has additionally been trained to a“ ,” an device which has facilitated more meaningful communication for Tr. at 29-30. The Parent noted that although has , she is now to her when . Tr. at 33-35.

In September 2011, the Parent executed a contract with for the 2011-2012 school year when she did not hear further from the Department of Education. The witness testified that ’s tuition, including services, is $ Although she has so far been able to remit dollars to the School, she is unable to pay the entire amount and is seeking prospective payment. She remains responsible for $ Tr. at 37, 62.

additionally testified on behalf of the Parent. Ms. is the Principal of and, in this capacity, she has frequently observed She described an academic program in which approximately students are enrolled; its student population reflects a range of disabilities, but all are provided with an individualized program in a setting. participates in a classroom with other students whose functional profiles are consistent with her own. The School has made many physical modifications to its building in order to accommodate and minimize the impact of ’s response.

The student is provided with a range of related services on site, including , , and . A diet designed to regulate is incorporated into the student’s entire day. The student’s schedule includes instruction in , and a program designed to to both and . Tr. at 51-54. Much of the day includes of awareness. Ms. referenced many previously described by the Parent, particularly in the areas of expressing intent and exhibiting awareness of her environment. She concluded her testimony by confirming that the School cultural references familiar to the students as a means of developing and skills. Due to the limited abilities of , she did not view this as “ instruction.” Tr. at 63-64.

Finally, testified as ’s therapist. Ms. has worked with the student for several years and described the measures must implement in order to the of activity. Although the student’s have short durations, she noted that it is the child following an occurrence. Tr. at 71. She observed that the student’s control her access to choices within her environment as she is unable to or preference independently. This is compounded by and . Although limited to yes/no responses, ’s considerable improvement with the use of her has been extremely useful at school and home.

In his affidavit, , Clinical Director of ’s program, credibly described the student’s functional and academic needs. His training includes specialized skills which facilitate interactions with profoundly , - and - individuals, including - and DIR certifications. Exh. i. Mr. worked directly with the student and described a number of specific interventions he has utilized with in an effort to develop greater . Most significantly, he has a program which has effectively the and of ’s . In this manner, the student’s availability to has and the child has now an ability to her for transitional , with prompts from her , and by reaching. Ibid. at 2.

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). As such, counsel maintains that the IEP generated May 16, 2011 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. In view of the above, the Parent 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 daughter 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.

Discussion

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. (20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Thus, procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). Appeal 03-061.

I find, ab initio, that the Department of Education did not provide the student with an appropriate program and site. In view of ’s and related , the Parent’s witnesses credibly and testified that a small, - environment is required. Both the Parent and testified that no evaluations were offered during the CSE meeting of May 16, 2011. As a result, the IEP reflected inaccurate descriptions of ’s , particularly in the area of . Although witnesses testified that they had objected to the Department of Education’s recommendations in the course of the May 2011 convene, the testimony is silent regarding its rationale for recommending a large District placement in a paradigm. Indeed, the Department of Education’s silence underscores the Parent’s belief that this program was recommended without any consideration of the individualized needs of As such, I find that the Department of Education has failed to establish the appropriateness of its IEP.

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

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, as identified by witnesses who work with her daily and are intimately familiar with her needs. The program provides intense intervention in a , modified milieu, an environment which is mandatory if ’s is to be addressed meaningfully. Both the program initiated by the School’s as well as the upon which has been trained have enabled major contributions to the child’s . Given the inherent within the , the School’s ability to provide on-site related services, including , by is particularly important.

The student, moreover, participates with peers whose functional profiles are consistent with her own. Principal credibly testified that she is responsible for ensuring that appropriate lesson plans are developed. is consistently observed and witnesses testified regarding inter-disciplinary cooperation and input. It is clear that is providing specialized personnel familiar with severe and, as a result, has demonstrated small but meaningful success in the areas of , and . Given the child’s and limitations, I find that the “ component” of the school’s programming reflects little more than the use of familiar cultural landmarks as anchors for such basic skills as and demonstrating intention.

“[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 2011- 2012 school year?

I find that there are no equitable factors which militate against the Parent’s right to recovery. The evidence indicates that Mrs. . participated willingly in her daughter’s

CSE convene and arranged for the participation of ’s personnel. When a recommendation was made, she visited the placement and shared her concerns. Mrs. has worked collaboratively with the Department of Education, exchanging private evaluations when available. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition.

Finally, I have reviewed the family income tax return for 2010 and it is clear that the Parent is entitled to prospective payment consistent with Connors v. Mills, 34 F. Supp

2nd 795 (1998, 2nd Cir.) and 20 USC 1412(a)(10) along with all costs and fees.

Conclusion

The parent’s request is granted.

Wherefore, it is hereby ordered that:

The Department of Education shall make prospective payment to the y for the 2011-2012 school year in the amount of $ , representing full tuition, costs and fees associated with ’s placement.

Dated: February 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 ON JANUARY 26, 2012

PARENT

A Notice of Rejection, 8/17/11, 4 pages B Impartial Hearing Request, 10/6/11, 6 pages C Letter & Subpoena, 1/17/12, 4 pages D Letter & Subpoena, 1/17/12, 4 pages E IEP 2011-2012, 5/16/11, 22 pages F Academy Program Description, 2011-2012, Undated, 1 page G 2011-2012 Class Schedule, 1/12, 2 pages H 2011-2012 Tuition Contract, 9/6/11, 6 pages I Price List/Order Form, Undated, 1 page J 2011-2012 Attendance Record, 9/1/11-1/12, 1 page K Report, 4/26/10, 2 pages L Evaluation of Inventory, Score Form, 9/11, 6 pages M Professional Service Log, 9/11-12/11, 7 pages N 2011-2012 Child Skill Assessment, Undated, 3 pages O / Progress Notes, 9/8/11-12/29/11, 8 pages P / Progress Notes, 9/8/11-12/29/11, 14 pages Q 2011-2012 Affidavit of Payment, 1/25/12, 1 page R 2010 Income Tax Return, 5/3/10, 2 pages

DEPARTMENT OF EDUCATION

None