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: October 2, 2013

October 22, 2013

Actual Record Closed Date: November 5, 2013

Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2013

Attorney — Student

Advocate — Student

Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2013

Attorney — Student

Advocate — Student

Principal, — Parents

Educational Director — Parents

INTRODUCTION

On June 21, 2013, 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 October 2 and 22, 2013. A hearing sessions scheduled for August 6, 2013, was adjourned at the parties’ request. 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 August 12 and September 4, 2013, and at both parties’ request on October 2, 2013, because of the unavailability of witnesses and the requirements of due process, in order for the parties to present their case. Before granting the extension requests, I determined that the hearing concerned the already concluded 2012/13 school year, and that granting the extensions 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 requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.

BACKGROUND

is a eight year old student classified with as

On August 22, 2012, attorney for ’s parent, notified the CSE that ’s parent intended to unilaterally place in , and seek department of education reimbursement for the 2012/13 tuition (Exh. B). On June 18, 2013, the parent’s attorney requested the impartial hearing (Exh. A), alleging that the department of education did not offer free and appropriate public education (FAPE) for 2012/13 because: the June 14, 2012 is substantively and procedurally invalid because (i) there was no regular education member of the CSE team, (ii) the CSE did not follow regulations regarding teleconference participation, (iii) the CSE did not have appropriate , (iv) the IEP goals are vague and not measurable, (v) the parent was denied full participation in the IEP development, (vi) the needs are inappropriate; the program recommendation is inappropriate because requires a ; the proposed class does not have an appropriate peer group. The parent seeks department of education reimbursement for ’s 2012/13 tuition at , and the cost of related services.

THE CSE’S CASE

,

THE PARENT’S CASE

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that ’s parent is entitled to reimbursement for ’s 2012/13 tuition at , because the department of education failed to offer FAPE, ’s parent has shown that is appropriate for , and equitable considerations support a tuition award.

A central purpose of the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with 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 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 (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 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 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, or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a child. Gagliardo, 489 F.3d at 115.

I find that ’s parent met the Carter requirements. I find that the department of education did not offer an appropriate program or placement for 2012/13, because the CSE did not conduct sufficient of , the IEP goals were insufficient, and the program recommendation and proposed class were not appropriate. I do not credit the statement of the CSE’s witness that was not capable of being ; the record indicates that with the use of her assistive communication device, could have been , and I find that the CSE made no effort to obtain a . This omission is especially glaring, since the CSE witness made discrediting statements about the information regarding ’s functioning provided by ’s teacher at the IEP meeting, yet the CSE chose to rely solely on that teacher-provided information.

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 parent is 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 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 ’s part-religious curriculum does not preclude an award of tuition reimbursement. The record indicates that school day is devoted to religious instruction; therefore the parent shall be reimbursed for 75% of the cost of ’s program, exclusive of any scholarships, fees or contributions.

I have considered the parties’ other arguments, and find it not necessary to address them in light of the foregoing conclusion.

ORDER

IT IS THEREFORE ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parent for (a) 75% of the 2012/13 tuition at , less any fees, contributions, or scholarships, up to a maximum amount of $14,625.00. Dated: November 19, 2013

_______________________

CRAIG TESSLER, ESQ.

Impartial Hearing Officer CT:mv

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 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 Hearing request, dated 6/18/13, 6 pages B 10 Day Notice, dated 8/22/12, 2 pages C Enrollment Contract, Dated 9/25/12, 2 pages D Copies of checks as Proof of Payment from 9/06/2012 to 4/1/13, 8 pages E Affidavit of Payment, Dated 6/20/13, 1 page F Class Schedule for 2012-2013 2 pages G Annual Student Report for 10/22/2012-6/3/2013, 3 pages.

DEPARTMENT OF EDUCATION

1 IEP, dated 6/14/12, 19 pages 2 FNR, dated 7/2/12, 1 page 3 Meeting minutes, dated 6/14/12, 2 pages 4 Omitted

5 , dated 6/11/12, 1 page 6 Omitted

7 report, dated 6/10/12, 1 page 8 Omitted 9 Omitted 10 Omitted