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

Dates of Hearing: July 20, 2012

August 14, 2012

October 15, 2012

December 11, 2012

Actual Record Closed Date: December 29, 2012

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2012

Advocate — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2012

Advocate — Parents

Mother — Parents

CSE Representative — DOE

School Psychologist — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2012

Esq. Attorney — Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEAREDON DECEMBER 11, 2012

Advocate — Parents

Mother — Parents

Sibling — Parents

Building Coordinator- — Parents

(via telephone)

Coordinator if Vocational — Parents

(via telephone) Education-

CSE Representative — DOE

On July 20, 2012, August 14, 2012, October 15, 2012 and December 11, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”)

Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated May 4, 2012. (Ex. A) I was appointed Impartial Hearing Officer on May 7, 2012. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on June 7 and June 14, 2012, the initial hearing was scheduled for July 20, 2012, the first mutually available date for the parties, their witnesses and the hearing officer. (Ex. I)

The initial compliance date in this matter was July 18, 2012. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the consequences of Hurricane Sandy. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions with regard to those extensions was given to the parties. (T. 15-16, 52, 63 , Ex. II)

The current compliance date is January 15, 2013. The record closed on December 29, 2012, upon my receipt of the final transcript.

Background

The student was about years old at the commencement of the 2011-2012 school year in July 2012. (Ex. 4) His classification since early childhood has been .

The CSE had convened on March 30, 2011, continued the classification and recommended a 12 month Special Class in Specialized School D with related services (counseling 1x2 , occupational therapy (“OT”) 2x30 , therapy (“SL”) 2x30 and 1x30 ) (Ex. 4) The program was unchanged from the prior year but for the addition of counseling. (Ex. 3)

By letter dated June 11, 2011, the CSE recommended class Y23 at . (Ex. C) That was the school recommended for the 2011-2012 school year which the parent had previously rejected. (Ex. 2)

By contract executed June 20, 2011, the parent enrolled the student in in the high school program for which tuition was $49,160. The contract specified that by September a payment plan must be agreed to and either post-dated checks o credit card arrangements must be in place. It also stated that in the event the student was withdrawn before the school year is completed, the deposit and tuition will not be refunded. (Ex. F)

The parent visited the recommended school on July 6, 2011. (Ex. 1) By letter dated July 6, 2011, the parent informed the CSE that she had visited the recommended school, that it was not appropriate, and that the student would be attending . (Ex. C)

By letter dated August 22, 2011a “10 day notice” was sent to the CSE. (Ex. B)

The instant impartial hearing request was filed by letter dated May 4, 2012. (Ex. B)

Positions of the Parties

The parent asserts that the March 30, 2011 IEP is substantively invalid and specifically claims a lack of measureable, individualized information concerning his needs resulting from his disabilities, deficient and inappropriate math and reading goals and incorrect long term goals. Further, the parent asserts that the placement recommended was not appropriate. The parent claims that her unilaterally selected program at was appropriate and that equitable considerations do not warrant reduction or denial of DOE funding for the placement. She seeks prospective funding of tuition based upon her inability to pay and seek reimbursement. (T. 148-152)

The DOE asserts that the it offered a FAPE for the 2011-2012 school year through the provision of an IEP that was procedurally and substantively sound and a placement that could implement the IEP. Further, with regard to the equities, the DOE asserts that the parent has not been forthcoming with regard to financial arrangements with the regard to tuition requirements. (T. 147-148) Cases Presented

A list of documents in evidence is appended.

A) DOE

The DOE presented the testimony of (“ ”), a school psychologist who observed the student at on March 16, 2010 (Ex. 8) and also conducted a evaluation on April 12, 2010 (Ex. 6). (T. 28, 32) had no recollection of this student but relied upon review of the documents. (T. 50) With regard to the observation, he stated that during free time the student appeared isolated and his vocalizations were garbled. (T. 29-30) During a subsequent class, in which there were four students, he required prompting to respond, was very , demonstrated some and used very basic and difficult to understand language and sometimes . (T. 30, 41) The teacher reported that the student was but did have .

(T. 31) Cardone describe the student’s behaviors as impairments in socialization and communication as well as . (T. 48) For the psychoeducational evaluation used the WISC 4 for cognitive testing and the student scored at a FSIQ of 50, extremely low range, but it was noted that the result was negatively influenced by characteristics of . (T. 33-34 Ex. 6) Cardone believed that the student was higher functioning than he tested and that, based upon matrix reasoning results, he may be in the low average range. (T. 39-40) The WIAT 2 was also administered and the student achieved grades very substantially below grade level, from grade equivalent 1.2 to 2.8 with the reading comprehension subtest attempted but not completed. (T. 34, Ex. 8)

has visited District sites catering to students with and testified that based upon his observations they provided a program appropriate for this student. (T. 35-37, 50) He testified that it was his understanding that a higher functioning student would get a different class than a lower functioning student. (T. 47) With regard to , he testified that it has a very strong vocational component and he believed that the student was of an age at which he could participate in it. (T. 45)

B) Parent

The parent presented the testimony of (“ ”), the director of , and (“ ”), Coordinator of , as well as that of the student’s mother (“the parent”).

testified that ’s students are mostly between 12 and 21 with various disability classifications and the program is “pretty much” a secondary program and that functional academics and vocational programs are offered. (T. 67-68) The school has seven special education teachers, teaching assistants , a vocational coordinator and job coaches and related service providers ( ) and a school psychologist. (T. 69, 89). Staff development activities are provided. (T. 69) The student is in a class of 10 (three girls and seven boys) with one special education teacher and two teaching assistants who have at least high school degrees. (T. 71-72, 93) The students fall within a three year age range and this student is in the middle with regard to functioning levels and social skills and students are grouped according to ability levels. ( T. 72-73) In the beginning of the 20112012 school year a Career Inventory was done and the student then worked at CVS with a job coach. (T. 73-74) The curriculum was created by teachers supervised by and the school psychologist and based upon state standards and modified based upon the needs of the students. (T. 89-90)

An occupational therapist “pushes in” twice a week during the computer /technology class and works with various students. (T. 79) The speech/language provider pushes in during Physical Education and English and plans an activity with the teacher that works on speaking with various students. (T. 80) Some students in the class receive services from persons provided by other counties and do not receive those services from . (T. 94) The school psychologist pushes in and provides a social skills class once a week. (T. 81) General education students from a school across the street take him to lunch and provide mainstream opportunities. (T. 82, 91)

Wolfson stated that the student entered in September 2011. (T. 100) She describes the student as at the beginning of the 2011-2012 school year and participate but then improving academically, participating in class, making friends and being able to advocate for himself. (T. 71. 86-87) Progress is measured by informal testing and the creation of individual portfolios. (T. 87-88) The student does not have or and no has been developed for him. (T. 95)

testified that a career level one assessment was done with the student during which staff discussed various career clusters with the student. (T. 108) He worked in and also in projects at the school and in the community. (T. 108-109) has a job coaches and one of them accompanied the student to his assignment at CVS, about two periods a week. (T. 109, 116, 118) Reports from the coaches stated that the student was diligent and motivated and that for a first exploration. (T. 110) stated that this student learned by doing and the aim was to have him be more independent. (T. 113)

The parent testified that the student received what she was informed was the maximum in after a . (T. 120-121) Through the CPSE, he attended center based programs at and subsequently, through the CSE, attended a public school. (T. 121-122) After public school he attend a different program for two years, then spent a year at and then was enrolled to this program which had a different program, building and teachers.

(T. 133-134)

The parent attended the March 30, 2011 CSE review. (T. 123) She stated that she did not disagree with the classification, program recommendation or goals. (T. 124-125) When she received the FNR, she visited the school and brought the IEP. (T. 125) When she arrived, she met a Ms. whom she had met the prior year and who had told her then that the student was too high functioning for the school. (T. 125) Ms. showed her around again although she said she did not know why the DOE was recommending that school for this student. (T, 125) She showed the parent the recommended class but stated that no class in the school was appropriate. (T. 126, 145) The parent formed the impression upon her observation of the recommended class that the students were functioning at a much lower level. ( T. 127-129)

With regard to , she stated that the student had made a great deal of progress socially and with regard to being able to express himself and communicating as well as in academics. (T. 128-131) She stated that although she had paid the registration fee, she is unable to pay the tuition although she know it to be her obligation. (T. 135-137, 142143)

Findings of Fact and Conclusions of Law

The information stated in the “Background” section above is specifically included herein as factual findings.

Transcript and Exhibit references not specified below are set forth above.

*****************

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which 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 a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act 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]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). In the instant matter, the DOE has presented no witnesses who participated in the development of the IEP. Instead the DOE relies principally upon various documents created for the 2010-2012 school year review and the testimony of a school psychologist who did not participate in the 2011 review and did not provide any information as to what occurred did not review the IEP that resulted and was not asked to opine on it or on its appropriateness for this student in the next year. The sole document submitted that was created for the school year in question is the unverified and unauthenticated “minutes.” Further, although the 2010-2011 documents were submitted there is no basis for a conclusion that the CSE considered anything other than the prior year IEP and input from participants. The parent has asserted that the CSE lacked adequate information to make a recommendation. The DOE has, in the circumstances here, not met its burden to establish that this IEP was reasonably calculated by the CSE to enable the student to make meaningful education gains. Accordingly, the DOE has failed to establish that it provided a FAPE.

However, with regard to the parent’s claim that the goals were insufficiently specific, I note that the parent testified that she agreed with the goals. Moreover, I find that to the extent that the parent claims procedural defects with regard to the goals, I concluded that they were not such as to result in a loss of educational opportunity, seriously infringe on the parent’s opportunity to participate in the IEP formulation process or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP.

Although unnecessary in view of the foregoing finding, I note that I find that the credible and unrebutted testimony of the parent establishes that the DOE representative charged with showing parents the school and the program was aware of the student’s strengths and deficits and told the parent that the student was too high functioning for any class in the school to be appropriate.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

In the instant matter, I find credible the testimony concerning the program provided by and that progress in Academic and social areas has been made. I conclude that addresses academic deficits and provides a vocational training appropriate to the student’s needs. (Ex. K) Further, I note that strong vocational component. The evidence shows that related services are provided and that the student has progressed. (Exs. L, M, N) Further, parent’s claims with regard to the program and its effectiveness have not been contested or rebutted.

In the foregoing circumstances, I conclude that the parent has established that the program she unilaterally selected was reasonably calculated to enable the student to make meaningful educational gains.

Prong 3

In the instant matter, the DOE does not assert that the parent failed to cooperate with the CSE in the development of the IEP and I find that there is no evidence to support such a claim. Further, it is well established that a parent’s preference for a private school and even the signing of a contract prior to a visit to the proposed school is not dispositive of a claim for DOE payment. See Appeal No. 05-087. The evidence shows that the parent participated in the IEP review and promptly communicated her objections to the school. (Exs. C, B) There is no claim or evidence that there was any CSE response.

The parent has provided credible evidence concerning her inability to pay. The DOE’s sole assertion with regard to the equities in this matter is that the parent could not possible pay the tuition at Kulanu and therefore she has not been forthcoming about financial arrangements. (T. 148) However, although the parent may be unrealistic, that does not establish ban faith. See also Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011).

I find no basis for denying or limiting direct payment on equitable grounds.

Order

The DOE shall directly pay $49, 610 for tuition for the 2011-2012 school year upon submission of proof of attendance. Dated: January 12, 2013

______________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 Impartial Hearing Request Letter, 5/4/12, 3 pgs. Department of Education

2 FNR, 4/20/10, 1 pg. Department of Education

3 IEP, 4/20/10, 12 pgs. Department of Education

4 IEP, 3/30/11, 16 pgs. Department of Education

5 Confidential Voc. Assess,, 3/16/10, 2 pgs. Department of Education

6 Confid. Eval., 4/12/10. 3 pgs. Department of Education

7 Social History, 3/22/10, 3 pgs. Department of Education

8 Student Observation, 3/16/10, 3 pgs. Department of Education

9 CSE Minutes, 3/30/11, 1 pg. Department of Education

10 CSE 3 Minutes, 4/20/10, 2 pgs. Department of Education

A OMITTED

B 10 Day Notice Let. & Fax Confirm., 8/22/11, 2 pgs. Parent

C FNR and Fax Confirm., 6/11/11, 2 pgs. Parent

D High School Program, 2011-2012, 1 pg. Parent

E Vocational Ed. Program Outline, 2011-2012, 6 pgs. Parent

F Enrollment Contract 2011-2012, 2 pgs. Parent

G School Affidavit, 6/13/12, 1 pg. Parent

H Daily Class Schedule, 2011-2012, 1 pg. Parent

I Class Profile, 2011-2012, 1 pg. Parent

J Attendance Record, 6/20/12, 1 pg. Parent

K 2nd Trimester Report Card, 2011-2012, 4 pgs. Parent L Progr. Note, 12/10/11, 1 pg. Parent M OT Progress Report, 2011-2012, 1 pg. Parent

N Progress Report, 3/15/12, 1 pg. Parent

O OMITTED

P 1040 U.S. Income Tax Return, 3/20/13, 2 pgs. Parent

I Prehearing Conf. Memorandum, 1 pg. Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer