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 27, 2012

Actual Record Closed Date: February 28, 2012

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2012

Parents

Paraprofessional (Via Telephone) — Student

(Via Telephone) — Student

Teacher (Via Telephone) — Student

Supervisor (Via Telephone) — Student

Social Worker — DOE

therapist (Via Telephone) — DOE

Paraprofessional (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

The parent requested an Impartial Hearing on January 24, 2011. The hearing was held on February 27, 2012. The compliance date was extended. The District was represented by . The parent represented herself. The hearing was held on February 28, 2012.

The student’s date of birth is . He is classified as . He current attends the . The parent is challenging the Individualized Education Program (IEP) dated October 10, 2011. The IEP recommends an approved non-public school and a full time paraprofessional, therapy, and . The parent does not challenge the related services except as to the para-professional. The parent requests an order for the Department of Education to pay tuition at the in the amount of $25,000 per year, that proportion which the student has attended since January 2012 and for $20.00 per hour for the student’s one to one paraprofessional for the entire school day.

The District concedes that they have not offered the student an appropriate education.

The Parent proceeded by calling the student’s current teacher. She is New York State Special Education licensed in teaching grade. She currently has eleven students in the class, whose ages range from (the student that is the plaintiff in this action) through The teacher did not testify as to the classifications of the students. She testified that it is the para-professional that provides the student with the attention he needs including using an .

The Parent called the para-professional. She has a high school diploma and is certified in Links to Language (T. 20. She has tutored the student for eight years. (T. 12) She is the only one who able to program the , which is used as the student’s primary means of communication. (T. 17, 130)

The Parent testified that she attended the March 2011 and May 2011 IEP meetings and October 2011 IEP meeting by phone. She did not inform the IEP team that she wanted her son to attend a different school. (T. 97, 101) According to the Parent the IEP meeting dated October 10, 2011 was for the sole purpose of extending the student’s services from 30 minutes to 60 minutes. The Parent did not tell the IEP team in October that she did not want her son to attend his current school. The Parent testified that the teacher, para-professional and providers from the prior school did use the when working with the student. (T. 109, 113) The Parent never told the District she wanted her own para-professional instead of an approved para-professional. (T. 101)

The student’s prior teacher, para-professional and therapist testified that they used the but were unable to program it.

DISCUSSION

AS TO REIMBURSEMENT FOR THE PARA-PROFESSIONAL

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

The parent and district agree that the student needs a para-professional all day. From September 2011 till December 2011, the District provided the para-professional. was the student’s para-profession in the student’s prior school. Ms. testified that she was familiar with the student’s communication device and used it during trials. (T. 127) She stated that the student used the but sometimes during class, he would go to his favorite places. (T. 128, 133) When Ms. was asked about programming the device, she testified “I believe [the parent] didn’t want us to program it. She wanted to be in control of it.” (T. 129,

130) Ms. would write a note to the parent if she or other teachers wanted certain things entered into the device and the parent would see to it that it would be entered. (T. 130, 132)

When the student entered , the para-professional who worked with the student at home for , was now servicing the student at school. Ms. testified that she knows how to program the device. (T. 17, 103) The device is the property of New York City Department of Education. (T. 101)

The parent testified that no one except knows how to program the device. She stated that Ms. would not use the student’s . (T. 79) No one in the student’s prior school knew how to . (T. 108, 113) The had no information when it was coming home. (T. 109)

The March 24, 2011 IEP states that the student is . (Exh. G, T. 105) The device is referenced again in the May 23rd IEP. (Exh. F; T. 106) The parent testified that the information on the IEP regarding the device were all lies and that she told the IEP team that the information was a lie. (T. 113, 114)

The prior testified that the student was fully adept at using the device. (T. 118) She stated the . (T. 119) She could not delete or alter the information on the device. (T. 120, 123) Ms. . (T. 121, 124)

The student’s prior teacher testified that she worked with the student on the device during his daily trials. (T. 140) Ms. stated that the home para-professional knew how to program the device. (T. 141)

Based on all the testimony and the documents, the parent’s testimony regarding the student’s communication device was not credible. The student’s current para-professional has no unique qualities that his did not have.

The parent has not met her burden in showing the necessity for a private paraprofessional instead of one provided by the District.

AS TO TUITION REIMBURSEMENT

A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]).

The District conceded that they did not provide the student with an appropriate program. State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a][3], 200.1[ww][3][i], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 05-102; Application of a Child with a Disability, Appeal No. 03023; Application of a Child with a Disability, Appeal No. 01-084). The similarity of abilities and needs may be demonstrated with a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7).

The Commissioner of Education has not approved the as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own individualized education program (IEP) for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "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, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). 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 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 specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, 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).

The program integrated the provision of a full time para-professional into the classroom, to address the student’s needs, .

Based upon a review of the hearing record, I find that the parent did not sustain their burden to establish the appropriateness of the student's unilateral placement at the during the 2011-12 school year the provided education instruction specially designed to meet the student's unique needs.

First, it is undisputed that the student requires the services of a para-professional throughout the school day at School in order to . The does not provide this service to the student. Absent the district's agreement to provide the services at the School as part of the student's pendency placement, the parent did not present any evidence to establish that the would have otherwise provided this required service to the student during the 2011-12 school year.

Second, the student’s age range in class is from fourteen to nineteen. This student is fourteen and the youngest student in the class. State regulations also require that the chronological age range among the students within special classes of students with disabilities who are less than 16 years of age is limited to 36 months (8 NYCRR 200.6[g][5]). This range of students is inappropriate for this student who is the youngest in the class.

Finally, although the student’s teacher need not be certified in special education, this teacher’s education is geared toward the opposite age group of two through second grade. The student’s teacher testified that these students intellectually are within the two year old through second grade group, why then does New York State certify special education teachers within an age group and not an intellectual level.

Based on the evidence and totality of the circumstances the parent has failed to meet the burden of proof that the reasonably serves the student's individual needs. The hearing record shows that the district, through the use of a , provides a substantial portion of the support that the student requires in order to function at the Having determined that the parents failed to sustain their burden to establish the appropriateness of the student's unilateral placement at the for the 2011-12 school year for an award of tuition reimbursement, it is unnecessary to address the equitable considerations.

IT IS HEREBY ORDERED that the parent’s requests are denied. Dated: March 13, 2012

MARY NOE, ESQ.

Impartial Hearing Officer

MN:gc

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 Due Process Complaint, 1 page B Letter to DOE, 12/7/11, 1 page C IEP Progress Report, November 2010, May 2011, August 2011, November

2011, 4 pages D Teacher Evaluation, 3/16/11, 4 pages E IEP, 10/10/11, 17 pages F IEP, 5/16/11, 16 pages G IEP, 3/21/11, 20 pages H IEP, 3/24/10, 19 pages