New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Hearing Requested By: Parent

Date of Hearing: September 14, 2012

June 14, 2013

Actual Record Closed Date: August 20, 2013

Hearing Officer: William Wall, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2012

For the Student:

For the Parents:

Parent

For the Department of Education:

Manager

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 14, 2013

For the Student:

Parent/Mother

Parent/Father (via telephone)

For the Department of Education:

Manager

On June 14, 2013, I conducted an impartial hearing with respect to the education of pursuant to the Individuals with Education Act, 20 U.S.C. Section 1415(f)(1) at the Department of Education Offices, 131 Livingston Street, Brooklyn, NY 10001. A list of persons in attendance and documents accepted into evidence are attached to this decision.

PRELIMINARY INFORMATION

This matter is a Burlington/Carter case. The parent alleges that the Department of Education failed to provide a Free Appropriate Education. Therefore, they have acted independently and placed the student in the School for the 2012/2013 academic year.

THE DISTRICT’S POSITION

The District testified that upon receipt of an impartial hearing request, they reconvened and recommended deferral to the for placement because the parent did not believe the student was making adequate educational progress at the community school. The district stated that it did refer the student to the and eventually a recommended placement was made for the student to the School for Development in . The district contends that the placement met the educational needs of the student and thus the district had provided a free and appropriate public education (FAPE) even though the parents rejected the placement.

THE PARENTS’ POSITION

The parents did visit the recommended placement and after visiting and discussing the school with the administration, they concluded that the placement was not appropriate for the student and declined it. They advised the of their decision but did not receive another offer of placement.

FINDING OF FACTS AND CONCLUSION OF LAW

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its committee on education (CSE) (Application of a Child Suspected of Having a , Appeal No. 93-9; Application of a Child with a Condition, Appeal No. 92-7; Application of a Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a . 02-055. In a more recent SRO decision (Application of a Child with a , Appeal No. 09-067) there was an articulation of what an appropriate Individualized Education Program (IEP) should contain.

An appropriate educational program begins with an IEP that accurately reflects the results of to identify the student’s needs (34 C.F.R.§300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. §300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a , Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067). In this case the CSE developed an IEP on August 6, 2009. (Ex. 3). The CSE review team was comprised of the necessary personnel.

However, the IEP contained certain elements which in their implementation by the resulted in the denial of FAPE for the student. The recommended the School for . The parents visited the school but ultimately declined the placement and did not receive another offer of placement from the .

The parents declined the school for two significant reasons even though they did find the school attractive. The first reason they delclined the school had to do with the requirement of the school that the student’s IEP bechanged from a regular school year to a school year because without that change the school could not or would not accept the student. The CSE specified on the original IEP on page 8 of 12 (Ex 9-7) that the student was not eligible to receive education services during July/August. There was no mention of the possibility that type of change would be made in the IEP and the parents did not believe it to be appropriate. Once the placement was offered the CSE did not reconvene to discuss the issue even after the parents rejected the placement for that reason.

Therefore because I find both the travel time is excessive and the change required for attendance at the school required a change in IEP that was not made the student was denied a FAPE and the parents were not able to meaningfully participate in any educational changes to the IEP that would make the placement in conformity with the IEP because they were not even attempted.

The second prong of Burlington/carter places the burden on the parents to show that the independently selected school is an appropriate placement. The burden to establish The ‘ School as an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C. § 1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect")).

Subject to the foregoing 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. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of children," Rowley, 458 U.S. at 213, 102 S.Ct. 3034, it must provide such children with "meaningful access" to education, Walczak,142 F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression."

Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. 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. See Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every service necessary to maximize their child's potential. See M.S., 231 F.3d at 105 ("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction ly designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006)

With this relatively recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement for the student was appropriate. To establish the appropriateness of the school of the school was called. She is a grade education teacher who described the process of teaching children in need of education at the school. She stated that an IEP is developed for each student with specific individual goals. She then state that the curriculum of New York State is followed with direct instruction or differentiated instruction. It is a language based program which also has on staff. The student is in the which has students who have . The school utilizes a approach. The school has students. She also testified that the student has and is now at the beginning of the . She further testified that the small class environment definitely contributed to the . Based upon the testimony of the teacher and no objections from the district I Find that the school is an appropriate independent placement by the parent for the student.

The last prong of Burlington Carter is the balance of equities. In this case it is clear that the parents made the student available for testing provided independent testing results and overall cooperated with the District in an effort to find an appropriate school for the student. However, the did not find such a school for the student so the parents took unilateral action to place the student at the school and it was an appropriate placement. Therefore the Equities favor the parents.

ORDER

The Department of Education is order to reimburse the parents for the tuition and fees paid to the school for the 2012/2013 school year upon presentation of the appropriate documentation of payment and documentation that the student did regularly attend the school.

Dated: October 17, 2013

Original Decision Rendered: September 5, 2013

WILLIAM WALL, ESQ.

Impartial Hearing Officer

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’S EVIDENCE

1. Request for Impartial Hearing 4 pages 7/23/12 DOE

2. Letter from 9/5/12 2 pages DOE

3. 10/22/10 1 page DOE

4. IEP 6/24/13 13 pages DOE

5. and Report on IEP 6/19/12 12 pages DOE

6. and other 6/12/13 30 pages DOE

7. Triennial Review 6/6/11 9 pages DOE

8. Card 6/21/11 2 pages DOE

DISTRICT EVIDENCE

1. Request for Impartial Hearing 7/23/12 4 pages DOE

2. Email from Parent to 12/3/12 1 page DOE

3. Google Map undated 1 page DOE

4. Acceptance 12/3/12 1 page DOE

5. Email from interest 5/23/13 1 page DOE

6. Email follow up from 6/10/13 1 page DOE

7. IEP undated 12 pages DOE

IHO EVIDENCE

I 9/5/00 Chancellor’s Regulation A801