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: December 11, 2012

February 8, 2013

February 25, 2013

May 8, 2013

Actual Record Closed Date: June 7, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 12/11/12

District Representative DOE 02/08/13 02/25/13 05/08/13

Psychologist DOE 02/25/13 Attorney PARENT 12/11/12 02/08/13 02/25/13 05/08/13

Mother PARENT 02/25/13 05/08/13

Father PARENT 02/25/13 05/08/13

(T) Assistant Coordinator PARENT 05/08/13

(T) Teacher PARENT 05/08/13

(T) Physical Therapist PARENT 05/08/13

On September 18, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of attending a New York State approved private school and the New York City Department of Education (“DOE”) District: 28, concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on December 11, 2012, February 8, 2013, February 25, 2013 and May 8, 2013. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated March 27, 2012 and his IEP dated April 19, 2012 are procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student in a private school for the 2012-2013 school year. (Id.) The Parent seeks reimbursement for the student’s tuition at the private school for the 2012-2013 school year.

THE DOE’S CASE

The DOE argues that the student was offered a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year in his IEP dated March 27, 2012 and his “revised” IEP dated April 19, 2012. (T-19-20) The agency will defend the April 19th IEP at the hearing. (T-20-1)

The DOE called (1) witness to testify on its behalf and submitted (4) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE is incorporated in the decision below.

THE PARENT’S CASE

The Parent argues that the student . (T-22) He has been diagnosed with a and . (Id.) He wears which raises . (Id.) The student first IEP on March 27, 2012 recommended a “ plus one” setting and was drafted without the Parent’s input. (Id.) Then the Committee on special Education (“CSE”) reconvened on April 19, 2012 and changed the program recommendation to a . (T-24) The Parent believes that the student requires more adult support. (Id.) Additionally, the recommended DOE school is completely inappropriate for the student and would not provide him with his mandated related services. (T-25) The student is attending a New York State approved non-public school. (Id.) The Parent fully cooperated with the CSE. (T-26)

The Parent called (4) witnesses to testify on her behalf and submitted (23) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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])

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. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations 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 special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and 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. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See 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. (See 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." (See 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.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See 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, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (SRO No. 04-049)

In this case, the DOE created an IEP for the student on March 27, 2012 which recommended the student’s placement in a special class in a specialized school in a “ “Plus Three” class. (T-47 & D-1) On April 19, 2012, created another IEP for the student which changed his program recommendation to a “ .” (T-49 & D-2) No formal evaluations were conducted by the DOE and the agency relied solely on the documents provided by the Parent. (T-55) The psychologist testifying for the DOE could not recall if any new documentation, evaluations or reports were reviewed prior to the April 19th IEP meeting. (T-62) No such documentation was submitted in evidence by either side.

It is well settled that an amended IEP supersedes a previous IEP. (See SRO Nos.: 05063, 05-021 & 06-027) Accordingly, I find that the student’s April 19, 2012 IEP supersedes his March 27, 2012 and is the IEP in effect at the time the Parent’s hearing request was made. The Parent’s DPC references the April 19th IEP. (DPC)

As stated above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i]) Here, the DOE changed the student’s recommended placement and created a new IEP for the student without basing that change on the results of any evaluations whatsoever. The psychologist testifying for the DOE stated that the change was made at the request of a person in District because District 75 students all have intellectual impairments which the student does not have. (T-48) The District 75 request was made by e-mail by an individual who did not attend the April 19th IEP meeting. (T-61-3) Based on the record before me, I must find that the DOE denied the student a FAPE by changing the student’s program with an IEP that does not meet its requirements under law.

Having found that the DOE denied the student a FAPE, I turn to the question of whether the student’s private school placement is appropriate. Here the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo and Frank G., supra)

The DOE concedes that the student’s report is “in depth” and consisted of more testing than the agency normally conducts. (T-45) The student’s causes him to have a , which the observed. (T-42 & 59) According to the DOE , the student requires a lot of . (T-59) She also stated that the student has a very, . (T-60)

The student’s classroom teacher described him as “ ”, which benefits from a smallgroup instruction and needs a highly structured environment. (T-111) The student may need his . (Id.) The recommends his placement in a setting with a low student to teacher ratio, with as much teacher intervention as possible, a multisensory approach to learning and related services of speech, “ (P-F)

The student’s private school is a New York State approved non-public school with a language-based program. (T-81) Most of the students at the private school and the “school age” student to teacher ratio is . (T-82-3) All of the teachers must be certified in special education. (T-83) The private school follows the New York State general education curriculum as well as the New York State common core standards. (T-85) The private school has , providers. (T-85-6) The private school also has a computer lab, five “Promethean Boards”, assistive technology and IPads. (T-86-7) Students are placed in classes according to their functional and cognitive levels. (T-89) The student receives services, either four or three times weekly on an individual basis. (T-90, 99 & 129)

At the private school, the student is in one classroom during the day, thus negating . (T-92) Currently, there are (8) students in the student’s class, with two teachers and two teacher assistants. (T-105) The co-teacher has (20) plus years of experience and is certified in special education as are the teaching assistants. (T-121) The private school uses individualized modifications to correct behavior and has a custom-wide management plan in the form of a token economy to in the classroom. (T-107) The students in the class range from pre-k to on grade level in their academic functioning. (T-107-8) Sometimes the students work in small groups of two or three and even receive one-on-one instruction at times. (T-

108) They provide modifications as needed for individual students. (T-109) The private school uses a multi-modal approach to teaching with an emphasis on visual and verbal cues with differentiated instruction. (T-113) The students are assessed regularly. (T-118) The student is making slow but inconsistent progress. (Id.) It is the private school’s policies to have the physical therapist accompany the student on the stairs. (T-133) The private school is considered a “barrier-free” campus with the student’s classroom on the first floor. (T-137-8)

For all of the reason stated above, I find that the private school provides educational instruction specially designed to meet the student’s unique needs. I further find that the student’s private school placement is appropriate for his 2012-2013 school year.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parent provided the CSE with the student’s private evaluations, attended both CSE meetings and visited the recommended DOE school. (T-146, 149, 160, 170 & 181) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or pay the cost of the student’s tuition at the private school for the 2012-2013 school year.

Dated: June 20, 2013

EDGAR DE LEON, ESQ.

Impartial Hearing Officer ED: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 RECORD

Number/Letter Title Dated For # of Pages

01 IEP 03/27/12 DOE 13

02 Revised IEP 04/19/12 DOE 13

03 Notice of IEP Amendment 04/19/12 DOE 01

04 Child Outcome Summary 03/27/12 DOE 02

A Impartial Hearing Request 09/17/12 PARENT 06

B Request for Transportation 08/22/12 PARENT 04

C Draft IEP 03/22/12 PARENT 13

D IEP 03/27/12 PARENT 13

E IEP 04/19/12 PARENT 10

F 12/10/11 PARENT 15

G Evaluation 12/16/11 PARENT 10

H Therapeutic Resources Report 03/21/12 PARENT 03

I Report 03/20/12 PARENT 01

J Report 03/25/12 PARENT 05

K Report 03/24/12 PARENT 02

L Evaluation 03/05/12 PARENT 03

M E-Mails 04/02/12 PARENT 02

N FNR 05/21/12 PARENT 01

O Letter 06/06/12 PARENT 02

P FNR 07/10/12 PARENT 01

Q Letter 08/01/12 PARENT 01

R Letter 09/12/12 PARENT 01

S E-Mails 03/28/12 PARENT 03

T E-Mails 03/29/12 PARENT 01

U Class Schedule 2012-2013 PARENT 01

V Enrollment Contract 03/20/12 PARENT 02

W Affidavit of Tuition Payment 04/12/13 PARENT 01