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: April 26, 2012

May 4, 2012

May 9, 2012

Actual Record Closed Date: June 13, 2012

Hearing Officer: Michael S. Lazan, Esq.

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

Attorney — Student

Parents

Psychologist (Via Telephone) — Student

CSE 8 Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2012

ESQ., Attorney — Student

Mother — Student

Assistant Head of School, — Student

(Via Telephone) — Student

Special Education Teacher/Tutor — Student

CSE Chairperson's Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2012

ESQ., Attorney — Student

Parents

Chairperson Designee — DOE

By Complaint dated February 2, 2012, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges procedural and substantive violations in the Individualized Education Program (IEP) and its proposed implementation for both the 2010-2011 year and the 2011-2012 years. The parent requested tuition reimbursement at the for 2011-2012 and compensatory education.

A prehearing conference was held after the matter did not reach resolution. (IHO Exh. 1) The District sought to extend the timelines on April 16, 2012 because of the need for additional case preparation. This Impartial Hearing Officer (IHO) reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that was is an appropriate matter for extension. (IHO Exh. 2) On May 15, 2012, the District sought to extend the timelines because of witness availability. This IHO reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that was is an appropriate matter for extension. (IHO Exh. 2)

On June 13, 2012, the District sought to extend the timelines because of issues relating to the closing statement. This IHO reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that was is an appropriate matter for extension. (IHO Exh.

2) The parent’s closing statement was received on June 1, 2012; the District closing statement was received on June 13, 2012. (IHO Exh. 3) The record close date was June 13, 2012.

FINDINGS OF FACT

The Student has issues with respect to , (Exh. H) The Student functions in the of intelligence. (29)

Testing in April, 2011 indicated that the Student has not made progress in certain areas of when compared to testing in October, 2009. (36; Exhs. G, H) On the Woodcock-Johnson Tests of Achievement III, the Student ( percentile 2009, percentile 2011, letter word identification ( percentile 2009, percentile 2011), spelling ( st percentile 2009, percentile 2011). Writing scores went up during this time. (Exhs. G and H)

provides small class size with a ratio of or less, and provides a multisensory approach. (40-41) Teachers are trained to work with students with disabilities, including in Orton-Gillingham instruction. (40-41, 118) The Student benefits from small class size.

(120) The Student benefits from the Orton-Gillingham multisensory approach in the classroom, including sky writing, working on motor memory. (112-113) are addressed through Orton-Gillingham instruction. (115) Reading is provided throughout the day, and there is a targeted reading group. (125)

Testing indicates that the Student has in language skills, while at (84-85) Improvement was especially noted in word attack. (84-85)

The parent was open to attending public school with a placement. (154-157)

The proposed tutor, Ms. , possesses a Master’s Degree in General and Special Education and has been trained in Orton-Gillingham instruction. (73-74) The Student’s academic instruction during the summer would be for the Student to catch up. (95) The Student would benefit from such instruction over the summer because the Student’s skills are and his . (123)

The parent did not share the results of an evaluation by Dr to the review team in May, 2010 because she did not believe the Student had a . (176-177) The parents cannot afford the cost of tuition at . (173)

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The decision of Judge Lawrence Kahn in Connors v. Mills, 29 IDELR 946 (N.D.N.Y. 1998), expands on Burlington in allowing for tuition payment in circumstances where a claimant cannot "front" money to the school first. Judge Kahn stated that" (i)t simply cannot be the case that an act designed to grant "all" disabled children access to needed services would undermine that very goal by making such access dependant upon a family's financial situation." Id. at 951. The reasoning of Judge Kahn has recently been expanded upon and approved in a thorough and well reasoned decision by Judge Paul G. Gardephe in Mr. and Mrs. A v. NYC Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y.) (February 1, 2011), who noted that the legislative history of the Individuals with Disabilities Education Act (IDEA) specifically contemplates protection of low income individuals and ensures universal access to special education services.

On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The District conceded on FAPE claims for both school years, 2010-2011 and 2011-2012.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record indicates that the parental placement provides services to meet the Student’s special education needs by providing small class size and Orton-Gillingham literacy instruction. The District indicates that the parental placement is not the LRE and does not contain special education teachers. The record does not include persuasive testimony or evidence indicating that the Student could have meaningfully progressed in a less restrictive setting. The District did not call any witnesses in this matter or submit any evidence in this matter. The record indicates that the placement is a special education school including teachers trained in Orton Gillingham and related instruction. Moreover, on the second criterion, parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). As stated by the Circuit in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007):

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 (emphasis added).

The District also argues that the school did not assess the Student, but there is no requirement that a parental placement assess a Student. A.D. and M.D. v. New York City Dep’t of Educ., 690 F.Supp.2d 693 (S.D.N.Y. 2010) I find that, on the record as a whole, the parent satisfied her burden was appropriate for the Student for 2011-2012. The parents prevail on the second criterion.

On the third criterion, the IDEA allows that 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 a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District indicates that the parents failed to produce the 2009 evaluation from Dr. in connection to the 2010-2011 meeting. However, this argument does not relate to the 2011-2012 IEP meeting or the 2011-2012 claim for reimbursement. The record indicates that the parent was cooperative with the District throughout and was interested in a public school option. The parents prevail on the third criterion and are awarded direct funding for for 2011-2012.

Regarding the 2010-2011 year, the IDEA allows a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)(cited in Newington).

In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student"). A Petitioner need not "have a perfect case” to be entitled to a compensatory education award." Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011)

The record indicates that the proposed compensatory services are designed to allow the Student to make up for the FAPE denial for 2010-2011. The Student’s particular declines during that school year relate to reading, and in particular word attack and letter word identification. The record indicates that the proposed 80 hour summer program would address these and related language issues. The record also indicates that the proposed teacher is a qualified provider. The District contends that the parents did not provide the District with an assessment in connection to the IEP meeting for 2010- 2011. I agree that the parents should have provided this assessment to the District at that time. However, on this record, the evidence does not indicate that this failure had any substantive significance in connection to the 2010-2011 program recommendations. Further, the caselaw suggests that where a District fails to even present a case, equitable considerations should favor the parent. N.R. v. The Department of Education of the City School District of the City of New York, 52 IDELR 92 (S.D.N.Y. March 30, 2009)(Jones, J.). I agree with the parents that they have presented a reasonable compensatory education plan, and I will order same to compensate for the FAPE denial in 2010-2011. Dated: June 26, 2012

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer MSL: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 Complaint, 2/2/12, 3 pgs. B IEP, 5/17/11, 11 pgs. C IEP, 5/2/10, 11 pgs. D Evaluation, 3/5/10, 8 pgs. E Evaluation, 4/16/10, 3 pgs. F Initial Social History Interview, 1/27/10, 2 pgs. G Updated Academic Evaluation, 4/13/11, 6 pgs. H Comprehensive Evaluation, 19 pgs. I Grade Four Report Card, 6/23/11, 2 pgs. J IEP Goals, 6/24/11, 2 pgs. K Letter from Parent, 5/20/11, 2 pgs. L Letter from Parent, 8/18/11 2 pgs. M Midyear Report, 28 pgs. N Financial Records, Multiple Dates, 8 pgs. O Tuition Contract, 5/23/11, 2 pgs.

IMPARTIAL HEARING OFFICER

I PHC Summary and Order, 3/26/12, 5 pp II Notice of Extension, various dates, 3 pp III Closing Arguments, 6/1/12 and 6/13/12, 20 pp.