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 27, 2012

October 22, 2012

Actual Record Closed Date: February 28, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2012

Advocate — Parents

Mother — Parents

DOE Representative, CSE Region — DOE

Occupational Therapist — DOE

(via telephone)

Therapist — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012

Advocate — Parents

Mother — Parents

Principal — Parents

(via telephone) YESS

Teacher — Parents

(via telephone) YESS

DOE Representative, CSE Region — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated January 3, 2012. (Exhibit 1) 1 The request was amended by letter dated January 9, 2012. (Exhibit A) A pre-hearing conference was held on April 19, 2012. A hearing was held on June 27, 2012, and October 22, 2012, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

Throughout the course of this hearing, the parties requested extensions of the 45day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

boy classified by the DOE’s Committee on Special Education (“CSE”) as a student . The CSE convened on February 15, 2011, to develop an Individualized Education Plan (“IEP”) for . for the 2011-2012 school year. In the IEP created on that date, the CSE recommended placement in a special class in a community school with a ratio of . (Exhibit 2) The IEP also reflects a recommendation for adaptive physical education therapy in a group, and individual therapy. The DOE offered placement at for the 2011-2012 school year. (Tr. 75; Exhibit A)

The Parent’s exhibits are lettered. The DOE’s exhibits are numbered.

By letter dated August 22, 2011, the Parent, through her advocate, informed the CSE that she was rejecting the proposed placement and would be enrolling in the for ”) program for the 2011-2012 school year. The Parent unilaterally placed in the program for the 2011-2012 school year and is seeking reimbursement from the DOE for the portion of the tuition she paid to and direct payment to for the outstanding balance of tuition for the 2011-2012 school year.

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

is an therapist who works for the DOE at She confirmed that she participated in the CSE meeting held on February 15, 2011, and wrote the three therapy goals contained in the IEP of that date. Ms. did not have an independent recollection of the CSE meeting. (Tr. 19-27, 31) She served as ’s therapist throughout the 2010-2011 school year, which was his year at . She stated that, although he was absent from school “quite a bit,” he made “significant progress.” (Tr. 29) Ms. believed that E.A. was receiving individual three times per week during the 2010-2011 school year. (Tr.

41) The decision was made to reduce the amount of occupational therapy provided to . to once per week for the 2011-2012 school year since he had progressed and would benefit from more time in the classroom. The decision was made collaboratively with .’s teacher and the Parent. (Tr. 32-33) Ms. could not recall with certainty the size of the .’s class during the 2010-2011 school year but believed it was a self-contained class. (Tr.

39) She stated that the recommendation for the 2011-2012 school year was for a special class in a community school with the specified related services. (Tr. 48) She further stated that: “He was but he was -- he did not have the that significantly impacted the learning of other students or his ability to access the curriculum. We felt that this placement with these services would allow him to function.” (Tr. 48-49)

is the for the DOE who provided therapy to . during the 2010-2011 school year. She could not recall the frequency of her sessions with . Ms. participated in the CSE meeting. She stated that was receiving individual sessions before the meeting, and that the recommendation going forward was that there might be greater progress if he were in a group. Therefore, the CSE recommended in a group. (Tr. 54-65) Ms. wrote the goals contained in the IEP. (Tr. 68)

THE PARENT’S CASE

is a New York State licensed and certified special education teacher. He has been the principal of for twelve years. The school rents its space from the mainstream school in which it is housed, . (Tr. 91) During the 2011-2012 school year, the program had a total of thirty students, divided into four classes. .’s class was the youngest class, with students from the first through third grades. (Tr. 105-106) The students in the class fell within a 36-month age range. (Tr. 111) explained that . was accepted into the school because it would be a good fit for him, and he could learn and have his needs met there. In the 2011-2012 school year, .’s teacher was Ms. who is a New York State licensed and certified special education teacher. Ms. is no longer at the school. (Tr.

112) The class had seven students with Ms. as the teacher as well as an assistant teacher. (Tr. 96-97) The school has two educational directors who work with the classes, teachers, and assistants. There are weekly meetings to monitor student progress. There are also outside consultants who assist with the curriculum and in the creation of behavioral plans for certain children. (Tr. 92-94) offers the related services of therapy, , physical therapy, and . (Tr. 110) received his related services during the 2011-2012 school year. (Tr. 106)

observed . in his classroom since he is in each classroom at least three to four times per week, and as often as two to three times per day. (Tr. 108) He described as a child who is highly distractible and has , staying on task, . . requires a lot of individualized attention and class size is a significant factor for him. described .’s behaviors at the beginning of the school year. . could only sit at his desk for a very short period of time. He would go to the bathroom for an extremely long period of time and would wander or get lost if he was left on his own. If he were , he on the until . (Tr. 97-99)

explained that the school uses a modified state curriculum tailored to each individual child. He described the books and learning aids used with . (Tr. 99) Rabbi stated that . demonstrated progress throughout the year. Towards the end of the year, was adding and subtracting double digits, reading almost complete paragraphs with comprehension, sitting and staying on task for longer periods, and coming and going to the bathroom . He was much more efficient and more available for learning. (Tr. 100101)

Rabbi described the opportunities for mainstreaming at . The students have lunch in the lunchroom with students from and can sit at tables with those students if they choose. There were also opportunities to interact with those students during recess and occasional assemblies held together. (Tr. 104-105) In addition, students have opportunities to be placed in academic classes in the . (Tr. 109)

Rabbi confirmed that the Parent signed an enrollment on August 31, 2011, agreeing to pay the total tuition for the 2011-2012 school year of $31,000. (Tr. 101-102, Exhibit D) The Parent has paid approximately $3000 of the tuition and remains obligated to pay the outstanding balance. (Tr. 103)

is currently a full-day special education teacher in the program. During the 2011-2012 school year, while working towards her special education certification, she was the assistant teacher in .’s classroom. She confirmed that the class had seven students ranging from the first through third grades, and from ages six to nine. The students’ reading levels ranged from pre-kindergarten to third grade and their math levels ranged from pre-kindergarten to second grade. (Tr. 116-119) Ms. was in the classroom during the afternoon, from 11:45 a.m. to 3:45 p.m. (Tr. 120; Exhibit G) She explained that during the calendar and read aloud period, students performed their jobs related to the calendar, the class discussed the particular day, and they participated in a short activity or project. During the language arts period, the students were broken up into smaller reading groups. The students read from readers based on their individual levels and the teacher and Ms. would read with the students individually. The students also worked on individual book reports using graphic organizers and worksheets. They focused on different language arts skills. During the math period, the students were divided into two smaller groups. The groups alternated between going to the computer room to work on their math program and staying in the classroom with the teacher to work on the math skill being taught and practiced at the time. During the social studies/science period, the class would work on a particular topic by reading books, completing worksheets, and doing projects. (Tr. 119-126)

Ms. described ’s challenges in the classroom. He had a and doing independent work. He also , and completing his work without teacher assistance. He had . He would say unrelated to the topic of the discussion. . also displayed that . If he were , or . He had a . He also had students and did not have the beginning of the school year. (Tr. 126-127)

Ms. testified that . definitely demonstrated improvement in his social and in the 2011-2012 school year. He starting playing with other children, learned their games, and followed their rules. By the end of the year, he was still having but had definitely improved. When Ms. was asked if made academic progress, she responded, “Oh, for sure. He flew.” (Tr. 127-129) She explained that progress was measured by a lot of observation, class work, homework, and a few tests. By the end of the year, . could add and subtract double digits, read chapter books, answer mental math word problems, and his writing improved. His ability to work independently also improved. Ms. stated that definitely provided with an appropriate special education due to the very small class size, the opportunity to work individually with him, and the constant communication among the staff. (Tr. 129-131) Ms. confirmed that . received his related services during the 2011-2012 school year. (Tr. 126)

.’s mother. Ms. . uses either her first or middle name as her first name in different circumstances. (Tr. 157-158) Both names are reflected in the record. Ms. explained that . has a diagnosis of . (Tr. 148; 149) He was when he was months old. He received . He attended multiple preschools. He received , and physical therapies before kindergarten. (Tr. 153-154) Ms. . testified that attended during the 2010-2011 school year . She was not satisfied with his progress, particularly his socialization. When she discussed the situation with his teacher, the teacher reported little progress. (Tr. 146-147)

Ms. . stated that was an appropriate placement for . for the 2011-2012 school year and he made nice progress. (Tr. 151)

Ms. . stated that she paid $3000 towards the tuition for the 2011-2012 school year. She paid $2500 as a deposit and an additional $500 during the school year. (Exhibit J) She understands that she remains obligated for the balance of the tuition. She also explained that she entered into a verbal agreement with her aunt by which she borrowed $2500 from her aunt which was paid to . When Ms. learned that she must prove there is a loan agreement, she and her aunt incorporated their verbal agreement into a written loan agreement. (Tr. 150-151; 156-160; Exhibit K) Ms. . confirmed that her tax return for 2011 shows a reported income of $18,000. Ms. . and her husband have six children. They receive food stamps and medicare for the children. (Tr. 152-153)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The 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 Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has not met its burden to establish that it has offered a FAPE to . for the 2011-2012 school year.

The DOE presented the testimony of .’s therapist form the 2010-2011 school year. Although they described their work with ., in their particular areas of expertise, and participated in the CSE meeting, they could not speak to the broader, and more important, issue of the appropriateness of the recommended program beyond the related services portion. Ms. testified with regard to the program recommendation and the basis for it. However, she also testified that she had no independent recollection of the meeting at which the recommendation was made. This testimony was inconsistent. Even if she did, in fact, recall the basis for the program recommendation, her testimony did not serve to persuasively establish the appropriateness of the program. She merely stated, “We felt that this placement with these services would allow him to function.” (Tr. 49)

Ms. confirmed that she “wasn’t in charge of the IEP.” (Tr. 73) Neither witness for the DOE was able to speak to the manner in which the IEP was created. In addition, neither witness had a true independent recollection of the CSE meeting. With regard to .’s deficit areas outside of the scope of his needs, the witnesses were unable to address .’s classroom needs, behaviors, or performance. In supporting the CSE’s program recommendation, Ms. testified that: “ , but he was -- he did not have the types of behaviors that significantly impacted or his ability to access the curriculum.” (Tr. 48-

49) However, Ms. testified that it was difficult to measure .’s progress because he was not always related. At those times, she described his behavior as follows: “He would . He would . Yeah, those .” (Tr. 72) Ms could not recall whether met the goals contained in his previous IEP or whether any of those goals were carried over into the IEP for the 2011-2012 school year. (Tr. 73) There was no substantive evidence to demonstrate the basis for the program recommendation of the CSE.

The DOE did not explain the reason that the IEP provides for a special class in a community school, with a ratio, “3 time(s) per day” for “ELA,” and “1 time(s) per day” for “social studies.” (Exhibit 2, p. 2-11) Ms. was asked to explain what program would be provided during the other periods of the day and . would be in special class during those periods or in a different setting. Her response was: “You know what? I could not even interpret that for you.” She further stated: “I’m not even going to try. I don’t even understand that myself. I’m sorry.” The transcript indicates “(laughter)” during that portion of Ms. ’s testimony. (Tr. 49-50) The DOE failed to present the entirety of the program recommendation for . This failure is particularly troubling given the partial recommendation, specifying only ELA and social studies, contained on the face of the IEP. The recommendation could not even be understood or explained by Ms. an individual who purportedly supported the recommendation. As the record stands, the program recommendation for the balance of .’s school day, beyond ELA and social studies, is unknown. The program was incomplete.

Based on the above, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case for the 2011-2012 school year.

The Parent has the burden of establishing the appropriateness of the program they have provided to M.R. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the met .’s special education needs for the 2011-2012 school year. It has been persuasively established by and Ms. that the program was appropriate. The program was reasonably calculated to allow . to make meaningful progress and to address his individual needs. In fact, . made meaningful progress during the 2011-2012 school year.

testified unequivocally that . needs a small class size, and he explained the basis for his opinion. This was based on several factors, including: .’s distractibility, difficulty refocusing and remaining on task, his need for individual attention, and his potential for getting lost. Ms. explained the manner in which .’s needs were met in the small class setting of the program. all attested to ’s progress. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

Clearly, there are no equitable considerations that would prevent an order in favor of the Parent. The record clearly and fully reflects the Parent’s cooperation throughout the process. Ms. . participated in the CSE meeting and timely corresponded in writing to the DOE, without receiving a response. The DOE did not present any challenge to the Parent’s actions that would serve to diminish or bar the relief sought.

The DOE shall fund the tuition of $31,000 for .’s enrollment in the program for the 2011-2012 school year. The DOE shall reimburse the Parent for the amount of the tuition she paid to for the 2011-2012 school year upon proof of payment. In addition, the DOE shall directly pay to the outstanding tuition balance. Dated: March 19, 2013

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer ALI: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’s Exhibits

Exhibit Date Description Pages

A 1/9/12 Amended Impartial Hearing Request 4

B undated School Description 4

C 8/22/11 Ten-day Notice Letter and Fax Confirmation 2

D 8/31/11 Enrollment Contract 2

E 5/1/12 School Affidavit 1

F 5/1/12 Attendance Record 1

G 2011-2012 Daily Class Schedule 2

H 2011-2012 Annual Student Report 5

I 1/14/12 1040 U.S. Individual Income Tax Return 3

2011

J 2011-2012 Parent Proof of Payment 1

K 2011-2012 Loan Agreement 2

DOE’s Exhibits

Exhibit Date Description Pages

1 1/3/12 Impartial Hearing Request 3

2 2/15/11 IEP 15

3 2/15/11 Attendance Page 1

4 4/29/10 Final Notice of Recommendation 1

5 4/27/10 IEP 18

6 3/12/10 Evaluation 5