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: June 6, 2012

June 26, 2012

Actual Record Close Date: August 7, 2012

Hearing Officer: Robert L. Nisely, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 6, 2012

Attorney — Student

Parents

Private School Teacher (via telephone) — Student

Private School Director (via telephone) — Student

DOE Representative — DOE

CSE (via telephone) — DOE

Coordinator, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 26, 2012

Attorney — Student

Parents

DOE Representative — DOE

INTRODUCTION

On March 12, 2012,the New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (“IDEA”) by the parent (Parent) of (Student). The Parent requested the hearing by filing an impartial hearing request with DOE on March 6, 2012.

BACKGROUND

The Student was born in and resides in . At all times relevant to this case, she was classified as and the parties stipulated at the hearing that this classification was not in dispute (T. at 245). The Student has attended (private school), which is a nonpublic school located in since (T. 180).

Before discussing the testimony and evidence presented at the hearing, I shall give a brief overview of the Student’s . This discussion will be based primarily on the narrative portions of the Individualized Education Plan (IEP) for the 2010-2011 school year, since the record does not include any reports.

The IEP for the 2010-2011 school year developed by the Committee on Special Education (CSE) at a meeting held on June 14, 2010 described the Student as a “ ” child who had been diagnosed with and “ (DOE # ). It is also noted that her primary language was (DOE # ).

Concerning her academic performance, the IEP explained she was reading on a level and had (DOE # ). The Student also exhibited “ in functioning and ,” according to the IEP, which added that her “ is at a to year old level” (DOE # ).

Credible testimony given at the hearing also showed that the Student had “ ” (T. at 94). For example, she was able to , but did not know what the numbers meant (T. at 74). Likewise, she could

(T. at 108).

In the realm, the IEP described the Student as engaging in and as having (DOE # ).

With respect to her , the IEP of a child with . For example, she had and was not (DOE #2-8). A witness at the hearing noted that when she first entered the private school in , she could only (T. at 152).

According to the IEP, the Student and from an and (DOE #2-1,8). In addition, because she , she was required to use a (DOE #2-1,7). The IEP also noted that the Student had (DOE #2-8).

The IEP developed on June 14, 2010 recommended that the Student be placed in a class in a specialized school, with the following array of related services, all of which were to be provided on a basis: times a week for minutes; , times a week for minutes; , times a week for hour, and services, a week for minutes (DOE #2-23). The IEP also provided that the Student would have the services of a paraprofessional for % of the time she was at school (Id). In the event a class could not be found, the IEP directed that the Student be furnished with an “alternate” paraprofessional who would act as an interpreter (DOE #2-1). As I shall discuss later, when I summarize the DOE’s case, the same person might perform the functions of both the paraprofessional and the alternate paraprofessional. The IEP also provided for an extended school year, which would start in July 2010 (DOE #2-1, 2).

On June 21, 2010, the CSE sent a final notice of recommendation (FNR) to the Parent, notifying her that because a program was not immediately available, it was temporarily placing her daughter in an -speaking class at at (DOE #4-1). The FNR also indicated that the school year would start on July 6, 2010 (Id).

By a handwritten letter, dated July 13, 2010, the Parent notified the CSE that she was rejecting the proposed placement (DOE #3-1). On March 6, 2012, she filed an impartial hearing request with DOE challenging the IEP on both procedural and substantive grounds (DOE #1).

The request alleged that the Student was denied a fair and appropriate public education (FAPE), primarily because of the she would have faced in an -speaking class, even if she had been provided with a (DOE #1-1). As relief, the Parent demanded that the DOE pay for her daughter’s tuition expenses at the private school for the 2010-2011 school year (DOE #1-2).

DOE CASE

DOE’s first witness was , who testified via telephone that she is employed by DOE as a (T. at 10). She is in (T. at 11).

In her testimony, she listed the participants in the CSE meeting, including herself and the Parent, who participated by telephone (T. at 16-7). Discussing the IEP developed at the meeting, she pointed out that the teachers in the class would be trained in dealing with children (T. at 12-13). She also explained that if a class were not available, the Student would have been provided with an alternate speaking paraprofessional (T. at 17).

Ms. discussed her various visits to the private school, noting that the school was located in the same building as a center, which served both (T. at 14-5). She also testified that the private school educated children with “many different delays,” including ,

(T. at 14).

On cross-examination, Ms. acknowledged that a general education teacher was not present at the CSE meeting, but asserted that one was not needed, because placing the Student in a general education class “was not a question” (T. at 24).

She was also unsure whether DOE offered a class and whether the alternate and paraprofessional would be the same person (T. at 25). However, she pointed out that the Student would have a paraprofessional regardless of whether she was placed in an class (T. at 28).

DOE’s final witness was , who testified via telephone that she is the coordinator for . She further testified has pupils and includes grades grade (T. at 30-1). The school has classrooms and three , she pointed out (Id).

She explained that the school would have had a seat for the Student if the Parent had decided to accept the recommended program and that it would have been able to provide all of the mandated related services (T. at 32-3). She testified that the alternate placement paraprofessional and the paraprofessional would have been “collapsed” into one paraprofessional (T. at 35). Although the school did not currently have a speaking paraprofessional on staff, it would have found one, she declared (Id).

She also explained that a education provider would have gone to the school to provide services to the Student; that a nurse is in the school building; and that the and would decide whether to push into the class or pull the Student out (T. at 37, 38, 44). According to her testimony, the paraprofessionals employed at the school have credentials that range from a high school diploma to a Master’s degree and undergo training by DOE (T. at 42-3).

On cross-examination, she acknowledged that she had never met the Student (T. at 47). She also testified that the general education school, which is located in the same building, had a population of children, but added that was “shut off from the rest of the general education population” (T. at 49).

She observed that the age range in the class to which the Student would have been assigned was to and that the grade levels of the children in reading, writing and mathematics were and grade respectively (T. at 49-50). She acknowledged that neither the related service providers at the school (with one exception) nor any of the other children in the class spoke (T. at 51-2).

She testified that the art, science and gym teachers would push into the class and that the school had an adaptive gym (T. at 55). She also explained that the teacher assistant, who was the second adult in the classroom, was actually a class wide paraprofessional (T. at 54).

Commenting on the various related service mandates that would have been part of the Student’s program, she declared that she had “never seen mandates this heavy,” adding that this “isn’t fair to her [the Student]” (T. at 57).

PARENT’S CASE

The Parent’s first witness was , who testified via telephone that she has been a classroom teacher at the private school for two years (T. at 67). She holds a Master’s degree in special education and is certified to teach special education (T. at 656).

She explained that the Student’s class in the 2010-2011 school year consisted of children who all had IEPs (T. at 68, 70). According to her testimony, the children ranged in age and their grade levels in reading, writing and mathematics ranged from grade (T. at 70).

Ms. explained that, in addition to herself, two other certified special education teachers were “involved” in the class, along with two assistant teachers (T. at 71). She added that the assistant teachers held Bachelor’s degrees and were “awaiting” certification (Id).

Ms. noted that she was in the Student’s class for approximately % of the day and that the teachers were not necessarily in class at the same time (T. at 70-2). However, she declared that that a certified special education teacher was in class with the Student at all times (T. at 72).

She stressed that, although the class met as a group for Meeting and Group Learning, the Student received most of her instruction on a basis (T. at 72, 101). According to her testimony, the instruction was provided either by one of the special education teachers or an assistant teacher acting under the supervision of a certified special education teacher (T. at 87, 88, 90, 92, 95-7, 102).

Ms. testified that the teachers used a to instruction and used “parts” of the Assessment of Basic Language and Learning Skills (ABLSS) and another assessment method known as the “Brigance” to measure the Student’s progress (T. at 75). And, she noted, they also employed “teacher made materials and observations to determine where she’s at and where to go from there” (Id). On other topics, she testified that the Student primarily received instruction in and that the other children spoke (T. at 79, 104). She also explained that the Student suffers from ( ) and that she consulted with a “renowned” expert in to help the Student deal with her (T. at 80-1). She detailed the various methods she used to help the Student, including the use of ” (T. at 81-2).

Ms. opined that the Student had during the 2010-2011 school year

(T. at 108). Academically, she pointed out that the Student had “ ” and was able to use her “in a ” way (Id).

Socially, she noted that the Student interacted with her peers more, was (Id). She also observed that herself- . at 109).

Ms. attributed the Student’s to the instruction and small classroom environment provided at the school (Id).

On cross-examination, Ms. testified that that the Student was the only child in her class formally classified with (T. at 112). She also explained that she was usually in class with the Student in the afternoon, not the morning (T. at 117).

She pointed out in response to questions from the DOE’s representative that each Student in the class had her own paraprofessional (T. at 121-2). She explained that the paraprofessional’s duties primarily involved the of the child (Id).

Ms. also acknowledged that she was not a certified education teacher (T. at 132).

In response to questions posed by the IHO at the end of her testimony, she testified that the school has a total enrollment of about children who range in age from and a years (T. at 137). She also pointed out that all of the children have IEPs and that the school is ungraded (Id).

The Parent’s next witness was , who testified via telephone that she is the founder and principal director of the private school, in which capacity she has served for years (T. at 140). She holds a Master’s degree in special education (Id).

She testified that all of the teachers at the school are certified special education teachers and that % of them are in and (T. at 144, 154). The therapist are also , she added (T. at 155). Echoing the testimony of the prior witness, she declared that a special education teacher would have been with the Student throughout the day (T. at 144).

She spoke in detail about the various related and additional services listed in the addendum to the enrollment contract for the 2010-2011 school year, which included: , paraprofessional services, and evaluations, , behavioral academic instruction and evaluations and technology services and evaluations (Parent A). She pointed out that all of the related service providers are certified and receive extensive training (T. at 144, 153).

She observed that the Student was a good candidate for the school’s program for several reasons, including the availability of - instruction, the school’s “flexibility” in making classroom arrangements and the “large input” of the various therapists and consultants (T. at 145).

At the conclusion of her direct testimony, she noted that the Parent would be liable for the full payment of the tuition for the 2010-2011 school year if she did not prevail at the hearing and denied that the school had played any role in recommending the loan associations from which the Parent had borrowed money to pay part of the tuition (T. at 155-8).

On cross-examination, Ms. testified that to the best of her knowledge a therapist provided the , not interns (T. at 165). She also explained that the Student’s were so “involved” and “ ” that she required in addition to therapy to address her (T. at 166).

When asked what the did with the Student during her hours of , Ms. replied: “You would basically have to get the for that” (T. at 173).

She also pointed out in response to questions from the DOE’s representative that the consultant did more than provide “devices,” but worked with the Student

(T. at 168, 172). However, she acknowledged that she did not know the “particulars” of what was done during these sessions (T. at 172).

Ms. also acknowledged that the school does not have a nurse on its staff, but that a nurse who works in a medical office in the same building would be available if needed (T. at 193-4).

She denied that , which was one of the loan associations from which the Parent borrowed money, had a “physical” office in the building where the school is located (T. at 183). She also testified that if the Parent did not satisfy her financial obligations to the school, the school would first take her to a court and then ultimately to a civil court (T. at 187).

The final witness was the Parent, who testified that her daughter had been born and had in the , and (T. at 209). According to her testimony, the Student was diagnosed with when she was years old and has always been in special education (T. at 211).

Commenting on the CSE meeting, she explained that she disagreed with the recommended program, because she believed that her daughter required a “full time special education school” (T. at 214). In addition, she was concerned that the need to have a always present would with her daughter’s and (T. at 2145).

Recounting her visit to she described the school and the DOE program as “ ,” but noted that none of the staff members spoke (T. at 215). She also denied that the private school had ever mentioned to her, adding that she would be responsible for paying the tuition if she lost this case (T. at 217, 219).

At the conclusion of her direct testimony, she testified that her daughter had during the 2010-2011 school year, pointing out that she had skills” and showed “ ” (T. at 220). She attributed this progress to the school’s “customized program” (Id).

On cross-examination, she acknowledged that the Student had never attended a DOE program and that the partial tuition payments had been made with money borrowed from the loan associations (T. at 221, 227).

She asserted that when she visited , the staff told her that they had never had a - paraprofessional (T. at 223). She further testified that her daughter did not , but in response to a question from the IHO expressed her hope that her daughter would eventually become (T. at 225, 230).

FINDINGS OF FACT AND DECISION

This is a tuition reimbursement case and is, therefore, governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept. of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for deciding questions of tuition reimbursement, under which reimbursement is warranted if (1) the services offered by the school district were inadequate or inappropriate; (2) the services selected by the parents were appropriate; and (3) equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

After reviewing the testimony and evidence in this case, I find that DOE has failed to meet its burden of proof under the first prong, because the IEP contains related service mandates that are so burdensome that they would have impaired the Student’s ability to receive a benefit from the recommended program. Ms. , who was the DOE’s own witness, testified that she had “never seen mandates this heavy” and went on to declare that “we would really take a look at these services, because honestly this isn’t fair to her” (T. at 57).

My own independent review of these mandates confirms the correctness of Ms. ’s view. If the total number of hours allocated to related services is tallied up, it amounts to hours per week, which equates to an average of hours per day. If one adds in at least an extra minutes for lunch, this means that the Student would have spent at least hours a day in nonacademic activities.

Moreover, three of the related services ( ) would have been conducted outside of the classroom (DOE #2-23). In the case of the , the would have had the option of either doing push-ins or pull outs (DOE #2-23; T. at 38). Commenting on the number of hours dedicated to , Ms. exclaimed: “Wow, that’s a lot” (T. at 41).

Making the mandates even is the fact that the Student, despite her , showed some academic abilities. For example, according to the IEP, she could and (DOE #2-3). The IEP also noted that she was reading at close to a (Id). If the IEP had been implemented, it would have jeopardized the Student’s ability to build on her strengths and make academic progress, because of its failure to strike a proper balance between her need for academic instruction and her need for related services. Accordingly, I must find that the IEP failed to provide FAPE and that DOE failed to meet its burden of proof under one prong of the Burlington test.

As mentioned above, the Parent bears the burden of proving that the services provided by the private school were appropriate under prong two of the Burlington test. After reviewing the record in this case, I find that the services were not appropriate, because the private school only provided the Student with a ten-month program and did not provide any services during July and August of 2010. The Parent’s own documentary evidence makes this clear, since the tuition payment affidavit, the attendance sheet for the 2010-2011 school year and the related services attendance sheet show that the Student only received services from September 2010 to June 2011 (Parent C, D, G).

As mentioned above, the CSE recommended an extended school year for the Student and the FNR indicated that the school year would have begun on July 6, 2010 (DOE #2-1; 4-1). The record contains no evidence that the Parent ever voiced any disagreement with this recommendation or with the CSE’s implicit finding that the Student was in danger of substantial regression during the summer months. Therefore, for purposes of this case, I must take it as settled that the Student was at risk of regression and was entitled to an extended school year.

In an opinion issued in February 2012, the SRO ruled that the parents in that case could unilaterally place their disabled child in a ten-month program, even though he was entitled to a twelve-month program, because the parents had shown that they provided their child with professional home-based services during the summer months (Application of the School District, Appeal No. 11-164).

In this case, though, the Parent presented no evidence that the Student received any services during July and August of 2010, either at home or in another setting. Since the Parent bears the burden of proof on this issue, I cannot simply assume that these services were provided.

It is true that the Parent presented evidence, although largely anecdotal, that the Student had made progress during the regular school year. However, even if fully credited, this evidence does not rule out the possibility of regression during the summer months. Once again, because she bears the burden of proof, it was incumbent on her to show that she took appropriate steps to prevent regression.

Consequently, for the reasons discussed above, I find that Parent has failed to satisfy prong two of the Burlington test.

Given this finding, I shall not address prong three. In addition, even though I ruled against DOE on prong one, I see no point in remanding the case to the CSE to correct the defects in the IEP, since the school year is over and the Parent has not requested additional or compensatory services.

ORDER

I hereby order that:

(1) The IEP for the 2010-2011 school year be declared invalid.

(2) The Parent’s request that DOE pay or reimburse the tuition expenses for the Student at the private school during the 2010-2011 school year is denied in its entirety with prejudice.

Dated: August 17, 2012

______________________________

ROBERT L. NISELY, ESQ.

Impartial Hearing Officer

RLN: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 RECORD ON JUNE 6, 2012

PARENT:

A School Contract for 2010-2011, 9/5/10, 6 pp.

B Loan Application 9/7/10, 2 pp.

C Affidavit of Tuition Payments, 4/2/12, 1 p.

D Student’s Schedule, Undated, 2 pp.

E Attendance Sheet, 2010-2011, 1 p.

F Parent’s 2010 Tax Return, 3/15/11, 2 pp.

G Attendance at Related Services, 2010-2011, 3 pp.

H Description of School, Undated, 1 p.

I Ten-Day Letter, 8/23/10, 1 p.

J Proof of Payment, 2/7/11 – 4/15/11, 2 pp.

K Loan Agreement, 4/4/12, 6 pp.

L Loan Agreement, 4/4/12, 2 pp.

DEPARTMENT OF EDUCATION:

1 Impartial Hearing Request, 3/6/12, 2 pp.

2 IEP, 6/14/10, 23 pp.

3 Letter from Parent, 7/13/10, 1 p.

4 Final Notice of Recommendation, 6/21/10, 1 p.

IMPARTIAL HEARING OFFICER:

I Notice of Appointment, 3/12/12, 2 pp.

DOCUMENTATION ENTERED INTO RECORD ON JUNE 26, 2012

None