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: November 16, 2012 (Pre-Hearing Conference)

November 30, 2012

December 6, 2012

December 18, 2012

January 14, 2013

February 14, 2013

March 14, 2013

Record Close Date: April 8, 2013

Hearing Officer: James McKeever, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2012

Attorney — Student

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2012

Attorney — Student

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2012

Attorney (via telephone) — Student

Attorney (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18, 2012

Attorney — Student

Attorney — Student

Attorney — DOE

Psychologist (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013

Attorney — Student

Attorney — Student

Parents

Student Support Services, (via telephone) — Student

Attorney, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2013

Attorney — Student

Attorney — Student

Assistant Head of School, (via telephone) — Student

Staff Physical Therapist, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2013

Attorney — Student

Attorney — Student

Attorney — DOE

Vice President, Finance Administration (via telephone) — DOE

PROCDURAL BACKGROUND

I was appointed to the matter on November 9, 2012 after a series of recusals by other hearing officers. The Resolution Period expired on October 10, 2012. 2012. A Prehearing Conference was held on November 16, 2012. A pendency hearing was held on November 30, 2012. An interim order denying pendency was issued on December16, 2012. Extensions:

On November 30, 2012, the parent and the Department of Education (“DOE”) requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that there had been no prior requests for an extension and that the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to December 26, 2012.

On December 26, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior request for an extension, a second extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to January 25, 2013.

On January 14, 2012, the parent and the DOE requested a 30-day extension of the compliance date in order to receive the final transcript and submit post-hearing briefs. I determined that although there had been prior requests for extensions, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to February 24, 2013.

On February 14, 2013, the DOE, with the consent of the parent, based on the availability of the DOE’s rebuttal witness. I determined that although there had been prior requests for extensions, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to March 24, 2012.

On March 14, 2013, the parent and the DOE requested a 30-day extension of the compliance date in order to receive the final transcript and submit post-hearing briefs. I determined that although there had been prior requests for extensions, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to April 24, 2013

FINDINGS OF FACT

Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:

The Student is a (See, Individualized Education Plan (“IEP”), Exhibit 4). The Student has . She also cannot and (Exhibit 4). The Student and , which must be (Tr. 271). Cognitively, the Student is in the . The Student, who was in September 2012 for the 2012-2013 school year, was in reading and at a mid- , which placed her approximately level in reading level in math (Exhibit 4, 330, 372).

On March 8, 2012, the DOE’s Committee of Special Education (“CSE”) generated an IEP that recommended placement in a special class for math, ELA, science and social studies with Special Education Teacher Support Services (“SETSS”) for math (Exhibit 4). For the remainder of the school day, the Student would be placed in general education classes (Tr. 155-156.). The CSE also recommended related services and and for the 2012-2013 school year (Exhibit 4). The CSE team agreed that placement in a general education setting was inappropriate (Tr. 137, Exhibit 4, page 9).

On or about July 31, 2011, the DOE issued a Final Notice of Recommendation (“FNR”) for the Student to (Exhibit 9).

On August 24, 2012 the parent sent a notice of unilateral placement to the CSE stating that she disagreed with the recommendation and that although she had not yet visited the placement at , they believed it was inappropriate due to the staffing ratio. (Ex. 12). The parent also requested additional information about the school and the class recommended on the FNR (Exhibit 12). Specifically, the parent requested information about the composition of the proposed classes, the number of students and their functioning levels as well as the ability of the school to provide the related services and accessibility to the school and the classroom. The parent also advised that they would visit the school when it opened in September 2012 (Exhibit 12) The CSE did not respond. Thereafter, the parent filed a Due Process Complaint (“DPC”) on September 7, 2012. (Exhibit 1). The DPC complaint alleged that the Student was denied a free and appropriate public education because the placement was inappropriate and because the location of services (placement), in this case at ., was believed to be inappropriate because the school could not implement the Student’s IEP and/or meet the Student’s educational needs, inter alia.

The Student has been in a self-contained special class since she was in second grade. In developing the subject IEP, the CSE relied upon a evaluation from April of 2009, which was approximately and conducted when the Student was 12 years old (Exhibit 5). At the time of the evaluation, the Student was in a special class. The evaluation indicates that the Student required “ of delivery of information” so that [the Student] could have time to process (Exhibit 5, page 8).

The Student’s IEP requires the acquisition of various life skills and Adaptive Daily Living training (Ex. 4-13) . does not provide a life skills class (Tr. 185) and does not have adaptive appliances or the Student (TR. 283).

The Student’s class at consists of 12 students with one certified special education teacher, except for English where the Student’s class consist of two teachers and a paraprofessional and math, which has one teacher, an assistant teacher and a paraprofessional in the classroom (Tr. 326, Exhibit E). The small class size at the allows for small group instruction and opportunity for teacher support (Tr. 334). The school also provides practical skills for independent living and employability for after high school (Exhibit R). Students are grouped by functioning levels and based on their social/emotional needs (Tr. 335, 358). The also provides a private area to change the Student’s diaper (Tr.381). The provides all of the related services mandated on the Student’s IEP in a push-in and pull-out model so that the delivery of theses services do not interfere academic instruction (Tr. 365). The Student’s teachers at the reported that during the subject school year the Student made progress in reading and math and with respect to her social/emotional skills (Tr. 342, 285).

The parent participated in the IEP process (274). Nevertheless, the parent expressed concerns about the IEP and the proposed placement (Exhibit 12). The DOE failed to respond to the parents concerns. The parent signed the contract with the Private School in April of 2012. The parent cannot afford to pay the private school and then sue for reimbursement. In the event the parent is unsuccessful in her request for direct payment to , the parent is obligated to pay the the full cost of the tuition and the cost of the paraprofessional (Tr. 280, Exhibit 13). Credibility Findings

I find that all of the witnesses who testified at the impartial hearing, testified in a credible manner except for the DOE whose testimony was vague an contradictory.

CONCULSION OF LAW

Two purposes of the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a Free Appropriate Public Education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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 20607; 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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). 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 (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192 [2d Cir. 2005]). "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 offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

Parents who pass the Burlington test have a right to retroactive direct payment relief from a school district where they “lack the financial resources to ‘front’ the costs of private school tuition” and are legally-obligated to pay those costs. In re Student with a Disability, Appeal No. 12-036.

The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404). In this case, I find that based on the following, the DOE failed to meet its burden of proof with respect to demonstrating that the Student was offered a FAPE for the 2012-2013 school year.

First, the evidence shows that the Student is a with an “ ” based on . It is undisputed that the Student has as well as significant physical limitations. As indicated above, the Student cannot walk and she cannot use and has limited use The Student also , which (Tr. 271). The IEP developed by the CSE on March 8, 2012 recommended placement in a special class for math, ELA, science and social studies with SETSS) for math (Exhibit 4). However, for the remainder of the school day, which is almost half the school day, the Student would be placed in general education classes without any special education supports (Tr. 155-156.). Significantly, the CSE team agreed that placement in a general education setting was inappropriate (Tr. 137, Exhibit 4, page 9). As such, based on these facts, I find that this IEP failed to offer the Student a FAPE because the Student requires a placement in a full-time special education class.

Additionally, I find that the DOE failed to meet its burden of demonstrating that the Student’s placement in a was appropriate for this Student. As indicated above, the Student is in the very low functioning range who at the time the IEP was developed was entering the level in reading and at in math (Exhibit 4, 330, 372). Significantly, no evidence was presented to persuasively demonstrate that the Student would obtain an educational benefit in a class this large. Moreover, the evidence shows that in developing this IEP the CSE relied on evaluation from April of 2009, which was administered when the Student was old and attending special class. Although the evidence shows that the Private School attempted to conduct academic testing, the CSE failed to conduct any new testing before they decided to change the Student’s IEP and place the Student in a larger class with less special education support. Accordingly, based on these facts, I find that the IEP failed to offer the Student a FAPE. Parent’s Placement at the Private School:

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). 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. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; , 458 U.S. at 188-89). Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A "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 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

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]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

I find that the evidence presented at the impartial hearing demonstrates that the parents’ placement of the Student at the was appropriate. Specially, I find that the evidence shows that the provided direct and specialized educational instruction that was specifically designed to meet the unique educational needs of the Student (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

Here, the evidence shows that the Student’s English class consists of 12 Students and two teachers and one paraprofessional. The math class consists of one teacher, an assistant teacher and a paraprofessional (Tr. 326, Exhibit E). The remainder of the class consists of 12 students, one teacher and a paraprofessional. Significantly, the small class size at the Private School allows for small group instruction and opportunities for teacher support (Tr. 334). Additionally, Students are grouped based on their functioning levels and based on their social/emotional needs. The Private school also provides practical skills for independent living and employability after high school (Exhibit R) (Tr. 335, 358) and all of the related services mandated on the Student’s IEP are provided on a push-in and pull-out model so that the delivery of theses services do not interfere academic instruction (Tr. 365). Finally, the Student’s teachers at the reported that during the subject school year the Student made progress in reading and math and with respect to her skills (Tr. 342, 285). Accordingly, based on these facts, I find that the parent has met her burden of demonstrating the appropriateness of the Private School’s program for the Student. Equities:

Nothing in the record suggests that the parents failed to cooperate with the CSE and the evidence demonstrates that the parents provided the DOE with the requisite notice of the Students’ removal from public school prior to the student’s placement at the Private School (Exhibit 12). (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). Additionally, and contrary to the DOE’s contention that the enrollment contract is “illusory,” the contract that the parent signed with the obligates the parent to pay the in the event she is unsuccessful in her request for direct payment to the School (Tr. 280, Exhibit 13). This obligation was also confirmed by the witness from the who testified that the parent would be offered a payment plan to cover the cost of tuition if she was unsuccessful during the impartial hearing process (Tr.270, 399, Exhibit 13). As such, and based on the parent’s inability to front the cost of the tuition at the (Tr.269), I find that the parent is entitled to direct payment of all tuition costs, including the cost of the paraprofessional, to the Private School for the 2012-2013 school year.

ORDERED

The Department of Education shall fund the Student’s placement at the including the cost of the paraprofessional, by making direct payment to the for the 2012-2013 school year upon presentation of an invoice for same. Dated: April 18, 2013

______________________________

JAMES MCKEEVER, ESQ.

Impartial Hearing Officer

JM:dl

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 ON DECEMBER 18, 2012

PARENT

A Ten-day Notice Letter, 8/24/12, 2 pages B Tax Return, 2011, 30 pages C Social Security Income Letter, 9/17/12, 4 pages D Progress Report, June 2012, 23 pages E Progress Report, , November 2012, 22 pages F Mathematics Assessment, 5/16/12, 1 page G Reading Assessment, 5/9/11, 1 page H Reading Assessment, 5/9/12, 1 page I Student Assessment Portfolio, September 2009- May 2012, 7 pages J Adaptive Behavior Assessment System, Second Edition Test, 12/13/12, 24 pages K Placement Inquiry, 2/15/12, 2 pages L Transition Considerations for the IEP, 5/8/12, 4 pages M R for , 2011-2012 school year, 8 pages N NYC DOE Environment Survey for , '11-'12, 19 pages O Named as Persistently Dangerous by NCLE, 8/20/08, 5 pages P High School Students Plea with More Discipline, 12/12/11, 2 pages Q Notes from DOE written on 3/12/12 Progress Report, 1 page

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 9/7/12, 4 pages 2 Due Process Response, 9/21/12, 3 pages 3 CSE Meeting Minutes, 3/8/12, 9 pages 4 IEP, 3/8/12, 19 pages 5 Report, April 2009, 9 pages 6 Classroom Observation, 11/1/11, 2 pages 7 Evaluation, 4/10/09, 4 pages 8 Evaluation, Undated, 3 pages 9 FNR, 7/31/12, 1 page 10 Progress Report, March 2012, 20 pages 11 Social Language Development Test, 6/1/12, 5 pages

(pages 1 and 2 admitted)

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 14, 2013

PARENT

R Program Description, Undated, 5 pages S Class Schedule, 2012-2013, 1 page

DEPARTMENT OF EDUCATION

12 Letter, 8/24/12, 2 pages 13 Enrollment Contract, 2012-2013, 2 pages

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 14, 2013

PARENT

T Resolution Statute and Emails, 9/24/12, 4 pages U Schedule by , 2012-2013 School Year

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

1 Extension Information, 11/30/12, 1 page 2 Extension Information, 12/26/12, 1 page 3 Extension Information, 1/14/13, 1 page 4 Extension Information, 2/14/13, 1 page 5 Extension Information, 3/14/13, 1 page 6 DOE Brief 7 Parent Breief