NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: April 19, 2012
May 3, 2012 Actual Record Close Date: May 14, 2012 Hearing Officer: Craig Tessler, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2012
Parent Advocate — Student
Parents
CSE Representative — DOE
CSE Observer — DOE
School Psychologist — DOE
Speech Pathologist — DOE
Assistant Principal — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2012
Advocate — Student
Parents
! Principal — Student
! Special Ed Teacher — Student
District Representative — DOE
I. Introduction — DOE
On March 12, 2012, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on April 19 and May 3, 2012. Lists of persons in attendance and documents received in evidence are appended to the record.
The decision deadline was extended at the parent’s request on April 19, 2012, because of the unavailability of witnesses and the requirements of due process, in order for the parent to present her case. Before granting the extension request, I found that the child was placed in and attending a school program. I determined that granting the request would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension request was not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.
II. Background
classified as ”), who attends the (“ , a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed. In June and July, 2011, , including a (Exh. 6), a Evaluation (Exh. 4), and a Evaluation (Exh. 5). On August 5, 2011, the CSE held a review and issued an IEP (Exhs. 7, C)[1] recommending placement in an integrated co-teaching class program (“ICT”), with group counseling once per week for 40 minutes. On August 17, 2011, the advocate for parent, notified the CSE that the parent did not accept a “Parentally Placed” FNR, and was interested in a public school placement recommendation. On August 22, 2011, the parent sent a “10 Day Notice” to the CSE (Exh. E), stating that the parent was not offered a placement for 2011/2012, and that the parent intended to place , and seek department of education funding for the tuition. On August 25, 2011, the department of education offered a place in P. 99 (Exh. 8). On March 12, 2012, the parent’s advocate requested the instant hearing (Exhs. A, 1)2, alleging that the department of education failed to offer a free appropriate public education (“FAPE”) for 2011/2012, and seeking department of education reimbursement for ’s 2011/2012 tuition at YESS.
III. The CSE’s Case
, a department of education and , testified (Tr. 15-32) that her duties include assessments, counseling, and CSE reviews. Ms. did a Evaluation of on July 12, 2011 (Exh. 5). On the WISC-IV, achieved an average score in verbal comprehension, high average scores in perceptual reasoning and working memory, and a low average score in processing speed; his was in the average range. On the WIAT-II, exhibited average skills in reading and math, and functioned on grade level in both areas. Ms. participated in ’s August 5, 2011 CSE review as school psychologist/district representative, but did not recall what happened at the meeting, or if the CSE and parent had copies of ’s evaluations. Ms. stated that the CSE recommended an ICT program because was leaving the Development (“ ”), an approved, full-time special education program; she said that if it had been an initial review, the team would not have recommended any special education services.
, a department of education , testified (Tr. 33-43) that she evaluated on June 5, 2011 (Exh. 4). achieved average scores on all tests administered, and exhibited average receptive and expressive language skills. The report recommends discontinuing speech and language therapy, and states that the recommendation was discussed with ’s parent, who agreed with it. Ms. did not participate in the August 5, 2011 CSE review.
, testified (Tr. 45-71) that P. 99 has 700 students, about 160 of them classified with disabilities. The school has five ICT classes: kindergarten, grade grade; students are placed in class according to their chronological grade level, IEP, and parental input. ICT classes have a maximum of 32 students, with a ratio of 60% general education students and 40% special education students. Classes are departmentalized, but the students move as a group from subject to subject. A special education teacher is in the class for ELA, math, science, and social studies. “Special” subjects include computer, writing, “enrichment,” art, gym, and music. has staff providers of , , and . Ms. reviewed the class profile submitted into evidence (Exh. 9), which she did not prepare; she stated that the profile is of a grade class, that the students are classified as or , and that she does not know of any students in the class classified with an , or who exhibit unusual discipline issues. Ms. stated that the reading and math levels in the class range form 5th to 7th grade; however, the class profile indicates that (excluding ) the reading levels range from 3.0 to 5.9, and the math levels range from 3.0 to 6.0.
IV. The Parent’s Case
, Principal of for 11 years, testified (Tr. 80-113) that he has a M.S. in special education, a special education teacher’s license, and experience teaching self-contained special education classes; his duties include admissions interviews and determinations, supervision, administration, and facilitating parent-teacher contact. Rabbi Lustig described program (Exh. B). He stated that the has 30 students in kindergarten to 8th grade, with , including speech and language impairments, , and processing deficits. The program is housed in a mainstream yeshiva. There are 8 teachers, certified in special education, and 8 assistants, who are in M.S. programs in special education; program consultants include a social worker, speech therapist, and occupational therapist. visits all classes several times every day, and the program has two educational directors, who meet weekly with the teachers. There are teacher workshops and staff development several times per year. Maximum class size ; mainstream classes have 20 to 25 students. Students attend mainstream classes if appropriate, according to their cognitive, academic, and emotional levels. has attended for two years; during 2011/2012, he was in 8th grade. discussed ’s class schedule (Exh. J); the school day goes from 7:50 a.m. to 3:45 p.m., mornings are devoted to religious subjects and Hebrew language, and afternoons are devoted to “secular subjects.” is in a class. attends mainstream classes for ELA and social studies; a teaching assistant is in the class to ensure that special education students function appropriately. teachers collaborate with mainstream teachers. Rabbi stated that receives counseling at 2011/2012 tuition is $31,000 (Exh. G); ’s parent has made payments pursuant to a schedule (Exhs. H, I).
, a Special Education Teacher at testified (Tr. 114-133) that she has a M.S. and certification in general and special education, and has taught for 8 years, including 3 years at is in Ms. ’s class, which has a ratio, and is composed of 6th, grade students, classified with a learning disability, , whose reading levels range from grade, and whose math levels range from grade. Ms. stated that has gaps in his knowledge, that he is below grade level in math, and that he has problems asking for assistance; exhibits appropriate social skills in “typical” situations, but in “atypical” situations, he may . Ms uses a modified standard State curriculum. is in mainstream classes for ELA and social studies. Ms. works with the mainstream teacher to modify the program for , and helps with his mainstream work; she stated that assistance to ensure that he understands the work and remains on task. With supports, has made progress, achieved good grades in his mainstream classes, has improved motivation and self-esteem, and successfully adjusted socially and emotionally to the mainstream classes; he also made progress in math, which is a self-contained YESS class (Exh. F). Ms. stated that is appropriate for , because it provides the support to enable to function in both self-contained and mainstream classes. will graduate from the elementary program in June, 2012.
’s parent testified (Tr. 135-154) that exhibited academic delays and poor attention when he was five; he was privately evaluated and diagnosed with short-term memory loss and auditory processing difficulties. attended through , when he aged out of the program. Ms. testified that she did not receive the FNR via mail, and that the department of education did not contact her regarding ’s 2011/2012 placement. She stated that a 7th grade class would be inappropriate for . Ms. communicates frequently with Rabbi teacher, and the educational director. She stated that has progressed, has .
V. Findings of Fact and Conclusions of Law
I find that ’s parent is entitled to reimbursement for ’s 2011/2012 tuition at , because the department of education failed to prove that its recommendations for were appropriate, s parent has shown that is appropriate for , and equitable considerations support a tuition award.
A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-
01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).
In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that
(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.
The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district'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, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral 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.
I find that ’s parent met the Carter requirements. I credit the parent’s testimony (not challenged by the CSE) that she never received the FNR dated August 25, 2011, and I find that the department of education did not offer a timely placement for . I find that the department of education’s recommended placement, the , was inappropriate for . I find that in September, 2011, was chronologically an grade student, who functioned at , and slightly . The ICT class offered was a class, not an 8th grade class, and the classified students in that class functioned at levels far below ’s. I find that neither the level of the classwork, nor the level of special education support provided in the ICT class, would have been sufficient to meet ’s requirements. I conclude that the recommended placement is not appropriate, and that the department of education failed to offer FAPE to for 2011/2012. I find that is an appropriate program for , even though it is not a SED-approved program. offers a supportive, structured environment, with special education teachers who provide 1:1 and small group instruction in ’s weaker areas, and provide support for to adjust to and progress in mainstream classes. The curriculum is individualized to each student, and provides the supports and strategies which requires. and mainstream teachers communicate frequently to monitor progress and modify programs. Mandated counseling is provided in the program. The record indicates that has made academic and social progress at , and has improved motivation and . ’s program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress in the least restrictive environment; it provides an education in substantial compliance with all the substantive requirements of IDEA.
I find that equitable considerations also support an award of tuition. I find that ’s parent fully cooperated and communicated with the CSE, and that she made a timely hearing request. I find that the amount of reimbursement requested is reasonable. Therefore, I conclude that ’s parents are entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the secular part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that YESS’s partreligious curriculum does not preclude an award of tuition reimbursement. The record indicates that about 55% of ’s school day is devoted to religious instruction; therefore the parent shall be reimbursed for 45% of the cost of ’s program, exclusive of any fees or contributions.
VI. Order
IT IS, THEREFORE, ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parent for 45% of the 2011/2012 tuition at less any fees, contributions, or scholarships, up to a maximum amount of $13,950. Dated: May 15, 2012
__________________________________
CRAIG TESSLER, ESQ.
Impartial Hearing Officer
CT: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,3/12/11, 4 pp. B Program Description, Undated, 4 pp. C IEP, 8/5/11, 9 pp. D Final Notice (Parentally Placed), 8/8/11, 2 pp. E Ten-Day Notice, 8/22/11, 2 pp. F Annual Student Report, 11/2012, 2 pp. G Enrollment Contract, 9/1/11, 2 pp. H Affidavit of Payments, 2/27/12, 1 p. I Proof of Payments, Various Dates, 1 p. J 2011-2012 Class Schedule; 2 pp. K Attendance Record, 2/27/12, 1 p.
DEPARTMENT OF EDUCATION
1 Request for Impartial Hearing, 12/8/11, 3 pp. 2 Mandated Three Year Re-Evaluation, 6/28/11, 1 p. 3 Notice of IEP Meeting, 7/15/11, 4 pp. 4 Evaluation, 6/5/11, 3 pp. 5 Evaluation, 7/12/11, 4 pp. 6 Social History Update, 7/13,11, 2 pp. 7 IEP, 8/5/11, 12 pp. 8 FNR, 8/25/11, 1 p. 9 Class Profile, Undated, 1 p.
Footnotes
[1] The exhibits are not duplicative - each party’s exhibit had a different number of pages. See footnote “1”1 above.