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: May 17, 2013

May 31, 2013

Actual Record Closed Date: June 5, 2013

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2013

Esq., Attorney — Student

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2013

Parent Attorney — Student

Witness (Via Telephone) — Student

Parents

Parents

Representative — DOE

Teacher Assigned, (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

INTRODUCTION

On May 17 , 2013, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (“DOE”) to provide a free appropriate public education (“FAPE”) to Nechama G. (“the student “) for the 2012-2013 school year. The initial day of the hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. The hearing was continued on May 31, 2013. The requests for 30- day extensions made by both parties were granted based upon several factors. First, the impartial hearing request was amended on November 29, 2012 thus commencing a new resolution period. Second, a new motion to schedule was issued on January 2, 2013. The hearing was scheduled for February 8, 2013 and an adjournment was requested due a family issue for one of the parties. The hearing was rescheduled on April 4, 2013 due to witness availability.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On September 18, 2013 the parent filed an initial request for an impartial hearing. November 29, 2012, the parent filed an amended request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2012-2013 school year. The parent’s amended hearing request challenges the placement as well as the timeliness of the offer of placement. The issue in this case is whether the parent’s request for prospective tuition payments for the 2012-13 school year should be granted due to the failure of the DOE to provide a FAPE.

THE PARENT’S POSITION

The parent contends that the DOE denied the child a FAPE. The parents’ amended 2012 hearing request challenges the validity of the Program (“ ”) and the placement in the class at . They also contend that the DOE failed to provide then with the FNR in a timely manner. They contend that the accurately of the student, testing results and did not provide for a . In addition, the parents contend that the could not and would not have been properly implemented at . They further contend that is an appropriate placement and that they fully cooperated with the (“ ”) so the equities tip in their favor.

THE DOE’S POSITION

The DOE contends:1) that the was valid, 2) that the placement was provided in a timely manner, 3) that the child’s recommended program at for 2012-2013 school year would have provided the child with a FAPE and thus, the DOE contends that the child is not entitled to any relief. The DOE further contends that is an placement for the child and that the the parent.

EVIDENCE PRESENTED

The student is an year, month old student who is classified as . (Ex.1) She currently attends ,a school where her class ratio is . ( ) She is in the grade.

On March 16, 2012 an meeting was held and an was created for the student . (Ex. 1) She has and . Id. She has been described as and . Id. Her .( ) She is a with .( ) Her scores on the were thought to be in the , .( ) These scores do not appear on the . The , dated March 16, 2013, states only that the her is at the grade level and her is at the grade level (Ex. 1. 9) The teacher report dated March 13, 2013 places her level at the grade and her level at the grade. (Ex. 3) This is not reflected on the .

She is a child but has . She has which her . She has been and . ( ) All the evidence indicates that the student needs a class setting with teachers and an in the room. ( ). The DOE believes that the program her and is for her. ( ) Those from the DOE who gave that opinion never met the student. ( ) They never observed her in a classroom. ( ) The parent believes that since the student is an classromm, would not be appropriate. ( )

At , there are students. ( ) There were classes which were shown to the parents in the Fall of 2013. ( ) They were and (one had an ) and each of them had openings in September. ( ) According to the teacher at the school, the student would have fit into either one since one had students levels from to grade and the other has students from to grade. ( ) The teachers in each class were trained in instruction and they each have a to work with the students who have . ( ) One of the classrooms uses “ reports” in which is .( ) They each had students with as well as students with . ( ) The school would not indicate in which class the student would be placed until she was registered. She was not registered so no class was ever identified to the parent for her. ( )

Each class has period of per day, periods of per day in addition to period each of , and lunch. ( ) There are also non-academic classes offered and an afterschool program for . No one was asked or could state whether the non-academic classes, , and the after school program were taught by teachers with another adult present. ( ) The teachers did not testify and the DOE offered no evidence as to the curriculum, the ages of the students in each class or the method of teaching utilized by each of the prospective teachers. There was no evidence regarding the specific functional levels of the student in each class in each subject area or how groups would be formed in each class other than a general statement that the students were taught “to their ability”. ( ).

An FNR dated June 26, 2012 was prepared recommending a program for the student at . The parents never received that FNR. ( ) The DOE did not provide any evidence that it had been sent to them. The parents expected to receive the FNR during the summer. ( ) In mid-August 2012, the parents wrote to the DOE requesting a placement. (Ex.A) The DOE did not respond to that letter. The parent did not receive a FNR by the beginning of the school year. ( ) They filed an impartial hearing request on September 18, 2012. On September 20, 2012, the parents signed an enrollment contract with which stated that if they accepted a placement, they could receive a refund of their payments up until October 3, 2012. (Ex. H) After the proceeding commenced, the parents’ attorney obtained a copy of the FNR. They wrote a letter dated October 18, 2013 stating that they just received the placement. (Ex. B) The parents then visited the sometime after signing the contract but no specific date was given. ( ) The parent filed an amended request dated November 29, 2012 in which they stated their reasons why .(Ex. B). They to the fact that the school was , over students, and that is a class setting. Id. At the hearing the parent stated that had he received an appropriate placement he would have considered it. ( )

is a school within a school general education school of students. ( ) There are classes of to graders for a total of students at . ( ) The students have . ( ) The student’s class has a class ratio of with teacher and a . Id. The students in the class as all between and years old and most have based .( ) conducts training and workshops for its teachers. ( ) For percent of each day, the students receive instruction.( ) In addition, they all study as a .( )

The student requires group instruction with a , and . ( ) At , a series which is a program is used for the student in a group of which works for her. ( ) The teachers follow the goals on the by .( ) She has from the of the grade level at the of the year to the of the grade level now using the assessment. ( ) She is also her , which she in the of the school year.( )

She is on a group of where she may receive instruction for part of the instructional period. ( ) They use the program which is a program. ( ) It is used with teacher , and . ( ) They have been working on , , , and with .( ) Based upon teacher testing, she has from the grade level to the grade level in year. ( ).

In writing she is in a group of . ( ) She was to with teacher . ( ) Now she is with and . She uses . There has been .( )

In her current teacher’s opinion, the student classes. ( ) She a period, and . Id. But, the child in a given that she is on the setting and the statewide is for her.( )

The student used to have a chart in the classroom. Her this year and she now has an chart. ( ) The student has this year in all areas at and the school .( ).

The parents cooperated with the DOE. They attended meetings, they requested a placement in time for one to to be sent before the start of the school year when they had not received one in the mail. (Ex. A) They did not sign the enrollment contract until after the beginning of the school year. (Ex, H) The contract would have allowed them to get a refund if they accepted a placement before October 3, but the placement did not even come in time even for that. Id. Nonetheless, they visited and found it to be for the student and so informed the DOE. (Ex. B)

There are children in the family. ( ). The family income for 2011 was $ before deductions. (Ex. G.1) The mother is a and the father was . ( , Ex. G) They have a $ mortgage on a house that is worth $ . ( ) They have credit card debt of between $ and $ dollars. ( ) This year the father is but he had to take a salary. ( ) His income is $ this year. ( ) They have paid $5,000 so far to this year. ( )

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). In addition, the IDEA permits an award of payment to a private school if the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, if the hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. The DOE has the burden of production and persuasion in an impartial hearing to satisfy the first prong in a tuition reimbursement case. Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007. In this proceeding, the DOE must demonstrate the appropriateness of its IEPs and the timeliness of the placement. The DOE has the burden of proof regarding both of these issues which it did not meet.

The parent alleged in the impartial hearing request that the was not properly constituted. However, the reflects that all of the required participants were present at the meeting. Although the was properly constituted, the DOE failed to meet other procedural requirements which had a substantive impact on the outcome of the meeting. And those failures did deny the child a FAPE.

For example, the did not include the results of data from recent tests administered to the student and provides no support for the students level of performance listed in the . The was administered and the student’s scores were thought to be in where is considered average. However, neither that information nor the student’s actual scores on the does appear on the and the grade levels reflected were said to be “most likely” based upon the test results. This very tentative evidence was . Indeed, the teacher reports contain conflicting information about the child’s . The DOE tried to explain the variance by surmising that the teacher reports were based only upon estimates. But, the teacher confirmed that her scores were based upon the same testing, the . It was the DOE’s burden to show that the contains detailed, accurate information regarding eh student’s current level of performance, it did not meet that burden.

In addition, the DOE was unable to provide any evidence that the goals on the were discussed at the meeting or that a was created. Given the evidence that the child had a plan last year and the testimony from the DOE that her with her , the DOE had the burden to show that a was not required. It failed to meet that burden as well.

The DOE offered Exhibit 2, the FNR dated June 26, 2012. However, once the parents denied receiving that notice in or around its alleged date of creation, the DOE failed to produce any evidence that the FNR was actually sent to the parent in a timely manner. In fact, the only evidence offered with regard to the date of receipt of the FNR was offered by the parents. When there was no placement offer received in the mail by the parent by the summer, the parent sent a letter to the DOE in mid-August requesting a placement. (Ex A). The parent finally received the FNR after their attorney contacted the DOE and requested it. There was no date provided as to when that communication was made, however, the parent signed the enrollment contract on September 20, 2012 with after the school year commenced and before they were able to visit . The DOE’s argument that the parent should not have waited until August to send a letter requesting a placement, unfairly places the burden of the parent to obtain a placement in time for the commencement of the school year. It is the DOE’s job to get the FNR’s out in time and to be able to prove that it did so. By not providing proof of a timely FNR, the DOE has failed to meet its burden that a timely placement was offered to the parent.

Finally, the DOE failed to meet its burden that the could have been implemented at . There was no evidence presented with regard to the curriculum at , how the child would be grouped or the age range of the student’s in the prospective classes. There was only very general information set forth regarding the two possible placements to which the student would have been assigned but neither teacher from either class was called upon to testify. The witness who described the two possible placements had spent 10-15 minutes a week in one class and 10-30 minutes two times a week in the other. She did not describe any the teaching methods utilized by either teacher other than to say that they teach to the child’s abilities using instruction in groups. Such testimony does not address how the teacher would address the particular needs and goals of the student. Moreover, the witness who testified about the school day did not know if there were any non-academic classes (which was not explained but it is assumed to refer to non-major subjects) in which there would be teacher present. The makes no exception for the student to receive any instruction by any teacher who is . Thus, the DOE failed to meet its burden to show that the recommended placement was appropriate.

Having found that the DOE failed to meet its burden to show that FAPE was not provided, the parent bears the burden to show that is an appropriate placement. It need not show that the school they choose meets the IDEA definition of a FAPE. 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. It need not be perfect. Nonetheless, the same considerations and criteria that apply in determining whether the DOE’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 benefit.” Board of Education v. Rowley, 458 U.S. 176, 207 (1982); Muller ex rel. Muller v. Comm on Special Education., 145 F.3d 95,105 (2d Cir. 1998). 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. 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. Frank G. v. Board fo Educ. of Hyde Park, Central School Dist.459F3d 356 (2d Cir. 2006).

In this case the parents demonstrated that was providing the type of instruction which enable the student receive educational benefit. The record shows through credible testimony from her teacher that based upon testing, she in and . In addition, that she in all other academic domains as well as. She also her skills and in class. Accordingly, has provided the student with a placement which is "reasonably calculated to enable the child to receive educational benefits."

In addition, the father has shown that he his income pay the tuition to up front. He paid as but payments, thus, He qualifies for .

However, the DOE will not be responsible for paying for the instruction at which constitutes % of the school day. The amount of the tuition which the DOE will be required to pay will be % of the total amount.

ORDERED that the DOE shall pay to $29,850, the balance of the allowable tuition for the 2012-2013 school year and also reimburse the parents the amount of $5,000, the tuition already paid for the 2012-2013 school year at for a total amount of $34,850 within two weeks of the receipt of this decision.1 Dated: June 19, 2013

This amount was calculated based upon the full contract amount of $42,500. ( Ex, H)

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer

JTK: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

Letter/No. Date Description Pages

A 8/12/12 and 2

B 10/18/12 and 3

C 2/21/13 report 1

D 2/18/13 update

E 5/20/13 1

F 11/12/12- 2

3/13/13

G 7/18/12 3

I 2012-2013 Class schedule 1

J 11/29/12 Impartial Hearing request 2

1 3/16/11 11

2 6/26/12 11

3 3/13/12 Report 1

4 3/16/12 Minutes of 1