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 13, 2012

November 26, 2012

Actual Record Close Date: December 14, 2012

Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2012

Attorney — Student

Parents

District Representative — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26, 2012

Attorney — Student

Parents

School witness — Student

District Representative — DOE

School Psychologist — DOE

I. Introduction — DOE

On September 26, 2012, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on November 13 and 26, 2012. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at both parties’ request on November 13, 2012, because of the unavailability of witnesses and the requirements of due process, in order for the parties to complete their case. Before granting the extension requests, I determined that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.

II. Background

), who attends the (“ ”), a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed. On February 16, 2012, the CSE held a review and issued an IEP (Exh. 1) recommending placement in a special class in a special school, with therapy five times per week for 30 minutes , (“ ”) twice per week for 30 minutes , (“ ”) twice per week for 30 minutes , and once per week ; on June 6, 2012, a place in was offered (Exh. 6). On August 22, 2012, , Esq., attorney for s parents, notified the CSE that the parents visited the proposed placement and found it inappropriate, that and that the parents intended to place for 2012/13, and would seek department of education funding for the tuition (Exh. A). On September 25, 2012, the parents’ attorney requested the instant hearing (Exh. B), alleging that the department of education failed to a free appropriate public education (“FAPE”) for 2011/2012, because: the IEP has procedural and substantive defects, including failure to state academic and management needs, generic, vague and nonmeasurable goals, and failure to provide parent training/ ; the department did not conduct a (“ ”) and develop a behavioral intervention plan (“BIP”); the proposed placement is too restrictive and does not offer a functional class grouping. The request seeks department of education funding for ’s 2012/13 tuition at

III. The CSE’s Case

, Ph. D., a department of education School Psychologist assigned to CSE 6 for four years, testified (Tr. 66-98) that her duties include evaluations, observations, and participation in about eight IEP meetings per week. Dr. participated in s February 16, 2012 IEP meeting as district representative and school psychologist; other attendees included ’s parent, a department of education special education teacher, a parent member, and, via telephone, two of teachers. The CSE relied on psychological evaluation, classroom observation, and input from s parent and teachers. Dr. had no independent recollection of the IEP meeting, and did not know if the telephone attendees were provided with copies of the documents used by the CSE. Dr. stated that all attendees had opportunity to participate, and no one disagreed with the CSE's recommendation. The IEP goals were based on progress reports and input from service providers. Dr. testified that functions at a 1st grade level in reading and math, and exhibits difficulty in new and over-stimulating environments. The CSE recommended a program because it “…was the most appropriate program and the least restrictive setting for a child that has his specific academic, cognitive, and adaptive social-emotional needs.” Dr. was unable to state if the IEP reading and math goals established a baseline or how progress would be measured.

The department’s Report dated April 27, 2010 (Exh. 4) states that is English dominant for academic purposes. On the Stanford Binet V, exhibited moderately , with depressed scores across all domains. His academic achievement was significantly expected levels. During the evaluation, required much repetition and encouragement, and exhibited a . During the January 17, 2012 Classroom Observation (Exh. 3), quickly followed the teacher’s instructions, and independently completed a task involving cutting and pasting pictures. During a lesson, remained seated, paid attention to the teacher, and raised his hand to answer a question.

, Assistant Principal of for six years, testified (Tr. 16-56) that she has a M.S., and certification in teaching and administration; her duties include supervising teachers, staff and delivery of special education services in the and integrated co-teaching ("ICT") classes. Teachers receive weekly coaching in literacy and math, there are month team meetings, consisting of the classroom teacher, assistant principal and related service providers, to discuss students' progress and program modifications, and teachers participate in professional development, especially with regard to differentiated instruction. has seven classes; in addition to academic subjects, the program offers music therapy, adaptive physical education ("APE"), and all related services. Class paras are trained by an autism coach, and receive professional development. All of the students are classified , and all the students have ("BIP"). Ms. reviewed the FNR sent to s parent, and stated that could have implemented 's IEP. Classroom staff takes data on each student, to establish a baseline, and determine progress and program modifications. The teacher of the class that would have been assigned to has special education certification and five years of teaching experience. The students in that class are ambulatory and can feed themselves; some are , and some are not toilet trained. Ms. did not know the students' ages or academic functioning levels. Instruction may be to the whole class, small group or ; teaching methods include TEACCH and ABA. therapy is integrated into classroom activities, may be push-in or pull-out, and includes group activities such as cooking. Ms. stated that students in the classes do not interact with the general education students who attend the junior high school in the same building; the students have lunch in a small, private cafeteria, in groups of 18 students, supervised by a teacher and 6 to 7 paras. Students sometimes go to another site for special events, where they are exposed to general education students. The school offers six parent training workshops per year, which include meeting with related service providers to discuss home activities. has a parent coordinator, who advises parents of workshops at other locations. parents visited , met with the parent coordinator, and toured the school.

IV. The Parent’s Case

, Principal of , testified (Tr. 103-133) that he has a M.S. and teaching certification in special and general education, with a bilingual Yiddish/English extension, and has been at for 10 years, first as teacher, then assistant principal, and has been principal for 2 years; his duties include program supervision, curriculum development, and evaluating new and current students. Mr. has weekly staff meetings to discuss students’ progress and program modifications, and has frequent informal contact with teachers. Mr. evaluated when four years ago; he stated that ,a and conversation skills , but becomes . did not do a . requires a small, quiet environment, concrete “hands-on” instruction, small group instruction, and positive reinforcement. Until 2012/2013, was placed in a class, with much work that concentrated on academics. In September, 2012, was placed in a class, to develop his social skills. The teacher is enrolled in a M.S. program, and the assistant teacher has attended courses in special education. The students are aged 10 to 14 years, and function at a kindergarten to second grade level; each has an individual curriculum. Academic subjects are taught in groups, and social skills, hygiene, and ADL are taught to the whole class. ADL skills are taught with a “hands-on” method; ’s ADL skills have improved, and he is now able to feed himself and wash his face. ABA techniques are used for positive reinforcement. developed goals for , and evaluates progress three times per year, using the Brigance Inventory of Basic Skills. has 40 students, and is housed in a mainstream program with 150 students; have some activities with the mainstream students, including lunch, playtime, and tutorials. ’s schedule is 9:30 to 2:30 Sunday, 8:45 to 12:00 and 1:00 to 5:00 Monday through Thursday, and 8:45 to 12:00 Friday; religious instruction is from 8:45 to 11:00 Monday through Thursday. receives therapy 5X30 , 2X30 , and 2X30 ; all service providers have appropriate certification, provide services on both pullout and push-in bases, and consult with classroom teachers. Mr. stated that does not receive counseling at , but his needs are addressed programmatically. has made academic progress: he has improved reading comprehension, follows three-step directions, knows numbers to 100, can add up to 6, and has improved time and money skills (Exh. D). Mr. , teachers, and service providers have frequent contact with parents, and the school offers parent workshops 3 or 4 times per year. ’s parent signed the enrollment contract on August 29, 2012 (Exh. C).

’s parent testified (Tr. 134-157) that was diagnosed with , and was later diagnosed . takes . Ms. stated that has very and , and he exhibits , such as . received (“EI”) services of 20 hours per week of ABA, and as a CPSE student, he received 35 hours per week of SEIT/ABA. progressed in the ABA program, and his provider told Ms. that could benefit from a small class placement. entered at , and was placed in a small, structured class. Ms. attended the February 26, 2012 IEP meeting; she stated that the CSE had ’s progress reports, and discussed his academic goals progress, and . Ms. asked the CSE for assistance in dealing with ’s , and the CSE advised her they could not provide such assistance, although they could provide counseling for . Ms. visited the department’s recommended placement in June, 2012; she stated it was not appropriate for because it was too restrictive and did not offer mainstream contact, and the class she observed had very low-functioning students. On July 16, 2012, Ms. notified the CSE that she found the proposed placement inappropriate, and asked them to recommend an alternative placement (Exh. 7); she received no response. has never attended public school, but Ms. stated that she was willing to place in an appropriate public program. ’s parent re-enrolled in in August, 2012, and signed the enrollment contract on August 29, 2012 (Exh. C); tuition for the 10-month school year is $34,800 1 , plus $18,000 for related services. Ms. stated that ’s parents have made no tuition payments, and are unable to do so. Ms. stated that is appropriate for , because it offers mainstream and community exposure, and has made progress in academics, social skills, and language skills. Ms. communicates with ’s teacher and service providers, and has contacted them concerning ’s inappropriate behaviors in the home and community.

V. Findings of Fact and Conclusions of Law

I find that ’s parents are entitled to reimbursement for ’s 2012/2013 tuition at , because the department of education failed to prove that its recommendations for were appropriate, ’s parents have shown that is appropriate for , and equitable considerations support a tuition award.

A 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 FAPE (20 U.S.C. § 1400[d][1][A]; 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,

The Department of Education paid for an approved program for Summer, 2012 (Exh. 8). 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). 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]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). 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'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (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]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that

(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral 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.

I find that ’s parents met the Carter requirements. I find that the February 16, 2012 IEP is substantively deficient. The IEP fails to state ’s management needs. Identification of a student’s needs, and how those needs are to be addressed, is the fundamental purpose of an IEP. Management needs are defined as “…the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction” (8 NYCRR 200.1(ww)(3)(d)); and the definition appears in the “Management Needs” section of the IEP form. All that the CSE did in that section of ’s IEP was re-state their program recommendation for “a small class setting…with related services…” This was a total abrogation of their responsibility to identify ’s individual management needs in the academic, social and physical domains; without identification of ’s needs, it is impossible to develop an meaningful educational program for him. Failure to include management needs in an IEP renders it meaningless and invalid. I also find that the IEP goals in reading and math are vague and not measureable. Including the short-term objectives in the goals renders them more specific, but they still do not indicate ’s “baseline” level, or the level of work is expected to perform. I find that the related service goals, when read in conjunction with the relevant short-term objectives, are appropriate. I find that parent and training should have been included on ’s IEP (See 8 NYCRR 200.13(d). I credit the testimony of ’s parent that she made a specific request for parent counseling, because of ’s inappropriate behavior in the community, and that the CSE said they could not provide the service. The CSE’s refusal to provide parent training was a denial of their legal obligation. I do not find that the CSE was required to conduct a FBA and develop a BIP for : the parent’s witness stated that was well-behaved in school and the record does not indicate that ’s behavior interfered with his instruction. For the reasons given above, I conclude that the February 16, 2012 IEP is substantively deficient, and that the department of education did not offer FAPE for 2012/2013. Having reached this conclusion, it is not necessary to consider the parent’s allegations regarding the appropriateness of the department’s proposed placement.

I find that is an appropriate program for , even though it is not a SEDapproved program. offers a supportive, structured, small class environment, with a language-based curriculum, instruction, individual attention, and small group activities, and mainstream exposure; the program effectively addresses ’s , issues. The curriculum is individualized to each student, and provides the re-focusing, repetition, modifications, supports and strategies, which requires. There is a low student-teacher ratio, and the students are grouped homogeneously for small group instruction, which encourages both appropriate social interaction and development, and intensive academic instruction. The program’s setting in a mainstream school building provides for appropriate role models. The staff regularly monitors students’ progress and modifies their programs to suit their developing needs. The record indicates that has made progress at program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress, and provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition. I find that ’s parents fully cooperated and communicated with the CSE, and that they made a timely hearing request. I find that the amount of reimbursement requested is reasonable. Therefore, I conclude that ’s parents are entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the secular part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that ’s partreligious curriculum does not preclude an award of tuition reimbursement. The record indicates that about 25% of ’s school day is devoted to religious instruction; therefore the parent shall be reimbursed for 75% of the 2012/2013 tuition, plus the cost of related services, exclusive of any fees or contributions.

’s parent has thus met the three-prong Burlington/Carter test, but the relief sought poses an additional issue: the parent argues that she is entitled to prospective tuition funding; i.e., that the Department of Education should pay directly for ’s tuition, notwithstanding the fact that Burlington and Carter are couched in terms of reimbursement. In D.A. vs. N.Y.C. Dept of Education , 09-CIV-5097 (SDNY, 2/1/11), the Court held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents. In Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” (Id. 806) The Court also notes that it is “beyond cavil” that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), held that the IDEA can compel a school district to disburse funds for the student’s tuition at a private school, and awarded a preliminary injunction ordering the district to “…make whatever financial arrangements are necessary…” to implement a hearing officer’s decision and place the student in a non-State-approved private school.

I find the D. A., Connors and Sabatini decisions persuasive and conclude that the Department of Education may be required to directly or prospectively pay tuition to a non-approved private program after the Burlington/Carter tests are met, and the parent has shown by clear and convincing evidence that he or she cannot afford to pay tuition “up front.” However, I find that in this case ’s parent has not submitted any evidence whatsoever regarding her claim that the family cannot pay the tuition. Therefore, I conclude that the tuition award must be in the form of reimbursement to the parent, rather than direct payment to .

VI. Order

IT IS THEREFORE ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parents for (a) 75% of the 2012/2013 tuition at , in an amount not to exceed $26,100, plus $18,000 for the cost of related services, less any fees, contributions, or scholarships, up to a maximum amount of $44,100. Dated: January 4, 2013

______________________________

CRAIG TESSLER, ESQ.

Impartial Hearing Officer

CT:jj

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

A Omitted B Omitted C Enrollment Contract, 8/19/12, 3 pp. D Progress Report, 11/7/12, 10 pp. E Progress Report, 11/7/12, 1 p. F Progress Report, 11/12/12, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 2/16/12, 12 pp. 2 Notice of Recommended Deferred Placement, 2/15/12, 1 p. 3 Classroom Observation, 1/17/12, 2 pp. 4 , 4/27/10, 4 pp. 5 IEP Notice, 2/6/12, 6 pp. 6 FNR, 6/6/23, 1 p. 7 Parent Letter, 7/16/12, 2 pp. 8 Summer Program 2 pp.