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: May 15, 2012

June 20, 2012

Actual Record Closed Date: July 5, 2012

Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2012

ESQ., Attorney — Student

Parent/Mother — Student

Parent/Father (Via Telephone) — Student

Girls' Program Director, — Student

(Via Telephone) — Student

Special Education Teacher, — Student

Center for Special Education (Via Telephone) — Student

District Representative, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2012

Attorney — Student

Parents

District Representative — DOE

School (Via Telephone) — DOE

Assistant Principal (Via Telephone) — DOE

I. INTRODUCTION

On April 9, 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 May 15 and June 20, 2012. Lists of persons in attendance and documents received in evidence are appended to the record.

On May 15, 2012, the Committee on Special Education (“CSE”) representative requested a continuation of the hearing to present rebuttal witnesses, and both parties requested an extension of the decision deadline to allow for the department’s rebuttal case. I granted the request. Before granting the extension request, I found that the child was placed in and attending a school program, and I determined that granting the extension would have no adverse impact on the child’s educational interest or , 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

is a year old student classified with a . During 2011/12, attended the (“ ”), a non-public program which is not approved by SED to provide education to students with disabilities. After an annual review on May 26, 2011, the CSE issued an Individualized Education Program (“IEP”) (IHO Exh.

I) recommending a special class in a community school, with , (“ ”) , (“ ”) , and in a group. A place was offered. On September 20, 2011, ’s parents notified the CSE that they unilaterally placed in , and intended to seek public funding for the placement (Exh. C). , Esq., attorney for ’s parents, requested the hearing on April 6, 2012 (Exh. A), alleging that the department of education did not offer FAPE to for 2011/12, and seeking reimbursement of the 2011/12 tuition.

III. THE CSE’S CASE

The May 15, 2012 hearing session was scheduled on April 10, 2012. On May 14, 2012, I received a request from the CSE representative to adjourn the May 15, 2012 hearing session; I denied the request. At the May 15, 2012 hearing session, the CSE representative renewed the adjournment request, on the grounds that the department of education witnesses were not available, because they had to be present during administration of city-wide tests. The CSE representative acknowledged that the tests were scheduled many months before the instant hearing was scheduled, that the hearing was nonetheless scheduled for May 15, and that the adjournment request was made at the last minute. The CSE representative also stated that the department of education failed to disclose documentary evidence, because “we expected an adjournment.” I found the adjournment request untimely, and I found that the department had no valid excuse for their failure to present witnesses or to timely disclose documentary evidence; I concluded that the department of education was in default of its burden to prove its recommendations for the student are appropriate. I granted the department of education’s application to present rebuttal witnesses (See Section “V” below).

IV. THE PARENT’S CASE

, Program Director of 's , testified (Tr. 29-65) that she has a in , licenses in and as teacher of the and , with a extension, and experience as a special education teacher. Ms. stated that in September, 2011, entered 's " which has classes and is attached to a non-public "mainstream" program; the students' issues may include , , and , and . The students require instruction in a class setting; they are with mainstream students during lunch, assembly, recess, and, if appropriate, academic subjects. Ms. described as , but also and ; she exhibits and , including and , , asking for , and to . is in a class of students aged , with ; classes are grouped according to . Ms. testified that does an assessment of incoming students, that they could not administer formal tests to because she , and that they did an informal assessment of correspondence. There are teachers for the class: the morning teacher does not have a special education license, but does have experience teaching special education classes, and course work in the method, and the afternoon teacher has special education certification. Ms. discussed 's Class Schedule (Exh. G); the school day is from Monday through Thursday, and . on Friday. Daily subjects include , "centers," calendar/class news, , , skills, lunch, weather/calendar math, studies, reading , , , and counseling. Ms. stated that skills periods are devoted to , to help the students , and learn how to and ; skills are also addressed during recess. The classroom has "center" areas for specific activities, and to . " skills" periods are led by an , are devoted to crafts activities, and are intended to (" ") skills; " skills" are yard activities; the program does not have a physical education teacher. developed an IEP for , including goals based upon the New York State curriculum.1 The program employs a Curriculum Director, who consults with staff or per week. Ms. testified that related service providers collaborate with the classroom teacher, and that there are regular team meetings and frequent informal meetings. Special education strategies used in the class include pre-teaching, teacher , "chunking" of information, reinforcement, and to address . Ms. stated that has progressed since September, 2011: she has increased and , can , and has more ; 's has contributed to improved skills. Ms. stated that is appropriate for , because it identified her , developed appropriate goals, and used appropriate strategies to implement those goals.

, 's afternoon session teacher at , testified (Tr. 101-127) that she has a in special education, and a New York State special education teacher's license; she has taught for three years, including one year at . Ms. testified that her class is (including one student's para), with students years old, who function at - to levels in reading and math, and have and . The students receive reading instruction one hour per day, and math instruction 30 minutes per day; other subjects include science, studies, arts and crafts, skills, and skills. The class has a behavior program, which uses points and prizes. Ms. assessed in September, 2011; knew , did not have and could , knew , and could . Ms. stated that has and , which require use of - , ; she has and concepts, but can retain . Ms. uses strategies including teaching methods, preview, prediction, analyzing pictures, and review.

The IEP was not submitted into evidence. has , and requires group instruction; reading and math are taught in groups, times per week. Ms. stated that in reading: she knows up to , can , and made some . also in math, and . exhibits , and has her , and about . In September, 2011, exhibited skills, which were addressed in Ms. 's class with , , and encouraging to . 's , and she now , and more . (See Progress Report, Exh. D). Ms. and 's Curriculum Advisor developed goals for , based on the New York State curriculum. Ms. maintains frequent contact with the principal, 's morning session teacher, and related service providers. ’s providers note that made some progress, and continues to require the services (Exhs. E, F). Ms. stated that is appropriate for , because it offers a class setting, group and instruction, " " teaching, and enabled to make .

's mother testified (Tr. 69-92) that exhibited delays at months old; she was evaluated and received early intervention ("EI") services of . When turned , she was classified as a student with a , attended a center-based program, and received related services, including SEIT. Ms. attended the May 26, 2011 CSE review in , during which the CSE told her that had an appropriate class for . Ms. stated that and the recommended class may be for , and did not offer sufficient . Ms. received the notice of recommended placement in August, 2011, and telephoned to a ; she left a message and did not receive a return call. Ms. contacted the school again, and visited on September 15, 2011. She found the recommended class not appropriate, because the school building was too large, the classroom and related service locations were on different floors, the program involved too much stairway navigation and no elevator, and the class offered insufficient attention. On September 20, 2011, Ms. notified that CSE that she visited the recommended class and found it inappropriate, and that she intended to enroll in and seek department of education funding for tuition (Exh. C). 's father signed the tuition contract (Exh. H) and contract addendum (Exh. I) on September 1, 2011; tuition is $39, 500, and related services are an additional $14,400. ’s parents have not paid any tuition (Exh. K). ’s parent produced a 2009 Form 1040 (Exh. J), indicating an income of about $ ; she stated that the family in 2010, because her husband was , and . Ms. did not know any further details about the family's income, and stated that did not ask for any tuition payments between September, 2011, and April, 2012. Ms. testified that progressed at : she knows some , and has and skills.

's father testified (Tr. 93-99) that he signed the enrollment contract. He stated that he has not because he is " ," and because he is and had ; he has return. Mr. claimed to have little knowledge of his , and referred questions to his accountants; on crossexamination, he stated that the department "had no right to question" him about his income.

V. THE CSE’S REBUTTAL CASE

, a department of education School/Clinical Psychologist, testified (Tr. 148-177) that she has been assigned to for two years; her duties include evaluations. Dr. did a Psycho-Educational Evaluation of dated May 25, 2011 (Exh. 1), as part of ’s “ ” evaluation; she reviewed ’s records, and administered the WJ-III achievement tests. Dr. stated a structured classroom observation of was done; her evaluation indicates that during the observation, to the of the class while other students in , when it was her , and ; appeared , and when questioned was either , or her . Dr. ’s evaluation indicates that the WPPSI-III was administered to in April, 2009; she achieved an score, performance IQ score, and IQ. On the Vineland II, ’s were adequate. On the WJ-III, exhibited level skills, and was able to ; had and , and achieved in subtests of applied . Dr. stated that recognized , letters. Dr. did not administer any tests in which was required to after a story was read to her. exhibited in and and vocabulary. , and had . Dr. ’s evaluation recommends a class setting, with related services, reinforcement, teacher reminders to , , and additional time to .

, Assistant Principal of testified (Tr. 178-203) that her duties include supervising special education services. Ms. discussed the Fountas & Pinnell reading assessment, which is used to develop goals for a leveled reading program. There is no age limit for the assessment, and it is administered times per year to students using the program. Ms. reviewed 's IEP and Psycho-Educational Evaluation; she never met or tested , did not review her progress reports, and did not speak with 's prior school.

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that ’s parents are entitled to department of education reimbursement for ’s 2011/12 tuition at , because the CSE failed to show that it recommended an appropriate program and placement for , is an appropriate educational program 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 free appropriate public education (“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 decision-making 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. 07018). In Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 (1993), the 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. This decision expands the Court’s decision in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which held that a court may order reimbursement to parents who disagree with a proposed IEP and unilaterally place their child in a private school. Such 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; and (2) the private placement is proper and is reasonable calculated to enable the child to receive educational benefits. The Court must also consider equitable factors, such as communication and cooperation between the parent and the school board, the parent’s awareness of and timely exercise of due process rights, and the appropriate and reasonable level of reimbursement.

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 parents met the Carter requirements. I find that the CSE inexcusably failed to timely disclose evidence and present witnesses, that the department of education is in default of its burden to prove that its recommendations for are appropriate, and I conclude that it did not offer FAPE to for 2010/11. I find the program appropriately addressed ’s issues, , , and deficits, because it offered a , program, including a curriculum, large amount of and small group instruction, appropriate special education strategies and supports, and intense supervision and re-direction. was placed in a class with students of similar needs and functioning levels. One of the two classroom teachers has special education certification, and the other has significant experience teaching special education classes. The program incorporates a skills program. Related services were provided, and the service providers coordinated their work with ’s classroom activities. The program offers mainstream exposure for non-academic periods, and, if appropriate, for academic subjects. The program assessed to identify her academic and needs, developed a baseline for her, and developed an individual plan to appropriately address ’s academic and needs. The record indicates that made academic and progress at . I note that the recommendation in the department of education’s Psycho-Educational Evaluation fully supports ’s placement in a program such as . The program was reasonably calculated to ensure that received educational benefit and made academic and progress; it provided an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition: the parents cooperated and communicated with the CSE and made a timely hearing request, and the amount of tuition reimbursement requested is reasonable. The parents have thus met the three-prong Burlington/Carter test, but there are two additional issues which limit the scope and form of the tuition award:

A. Prospective Funding

The parents prospective tuition funding; See: Burlington, supra: “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”; See also D.A. vs. N.Y.C. Dept of Education , 09-CIV5097 (SDNY, 2/1/11), where the Court held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents; Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), where the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the nonapproved school, the public school must pay the cost of private placement immediately.” (Id. 806) The Court also notes that it is “beyond cavil” that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA; Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), which held that the IDEA can compel a school district to disburse funds for the student’s tuition at a private school, and awarded a preliminary injunction ordering the district to “…make whatever financial arrangements are necessary…” to implement a hearing officer’s decision and place the student in anonState-approved private school; and Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court rejected the district’s contention that Burlington prohibited prospective payment during litigation, and concluded that the policies underlying the IDEA and its administrative process favor imposing financial responsibility upon the local school district as soon as there has been an administrative panel or judicial decision establishing the pendent placement. The court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education.

While I agree with the D. A., Connors and Sabatini decisions that a school district may be required to directly or prospectively pay tuition to a non-approved private program, I find that such relief is not warranted in this matter, because the parents failed to show that they cannot pay the tuition. The most recent tax return submitted into evidence was for 2009. The father’s testimony regarding income, tax returns (and the lack thereof), and the family’s financial situation was vague, evasive, hostile, and not credible. The mother’s testimony, while credible, offered little insight into the family’s finances or tax returns. For these reasons, I conclude that the instant tuition award shall be for reimbursement, not direct payment.

B.

I find that 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 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 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 . Tuition reimbursement does not create a financial incentive for children to undertake 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 ’s part-curriculum does not preclude an award of tuition reimbursement. The record indicates that about % of ’s school program is devoted to instruction; therefore the parent shall be reimbursed for 85% of the cost of the base tuition, and full reimbursement for the cost of related services, exclusive of any fees or contributions.

I conclude that since the Burlington/Carter tests have been met, the Department of Education shall reimburse ’s parents for the cost of 85% of the 2011/12 base tuition, plus the cost of related services.

VII. ORDER

IT IS THEREFORE ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parents for (i) 85% of the 2011/12 base tuition, not to exceed $33,575, and (ii) the full cost of related services, not to exceed $14,400. Dated: July 11, 2012

CRAIG TESSLER, ESQ.

Impartial Hearing Officer

CT: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 Impartial Hearing Request, 4/6/12, 3 pages

B Due Process Response, 4/13/12, 4 pages

C Letter to CSE Chairman, Attention , 9/20/11, 1 page

D Center for Special Education Educational Progress Report, January 2012,

1 page

E Update, February 2012, 1 page

F Progress Report, February 2012, 1 page

G Daily Schedule, 2011-2012, 1 page

H Enrollment Contract, 9/11, 2 pages

I Addendum to Enrollment contract, 9/11, 1 page

J Tax Returns, 2009, 2 pages

K Affidavit, 4/23/12,^[1] page

Department of Education

Footnotes

[1] Psycho Educational Evaluation, 5/26/11, 8 pages Impartial Hearing Officer I IEP, 5/26/11, 12 pages