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: February 5, 2013

April 9, 2013

Actual Record Closed Date: May 6, 2013

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2013

Attorney — Student

Mother — Student

Father — Student

CSE Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2013

Attorney — Student

DR., Psychologist (via telephone) — Student

DR., Psychologist (via telephone) — Student

Parents

Parents

CSE Chairperson's Designee — DOE

The parents of . requested an impartial hearing on October 31, 2012, for the purpose of seeking reimbursement for the tuition and transportation expenses arising from their unilateral placement of (hereinafter referred to ”) for the 2012-2013 school year. (Par. Ex. A; Tr. pp. 5-6). I was designated to hear this matter on November 1, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). A hearing took place on February 5, 2013 and April 9, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues, with a final compliance date of May 14, 2013. (IHO Ex. II, III, IV, and V).

DUE PROCESS COMPLAINT

The parents complained that the challenged (March 23, 2012) Individualized Education Program (“IEP”) is procedurally and substantively invalid including invalid goals; that the student’s needs were not appropriately described and that the IEP arrived six months after the meeting; that the recommended program was inappropriate and that the Committee on Special Education (“CSE”) failed to recommend special education busing. (Par. Ex. A).

DEPARTMENT OF EDUCATION (“DOE”) POSITION

The Department of Education (DOE) conceded that it was unable to meet its burden of proving the appropriateness of its recommendations. (Tr. p. 5). The DOE did not call any witnesses at the hearing. In its closing statement, the DOE argued that the parents had failed to provide evidence of s progress ; and that Windward was not the least environment for Ima. The DOE also argued that equities do not favor the parents, as they paid a non-refundable tuition deposit on February 14, 2012, prior to the CSE review; and because the parents agreed with the recommended Integrated co-teaching program at the CSE review. (IHO Ex. VI).

PARENTS’ POSITION

The parents’ position is that the is appropriate, as it is consistent with the recommendations of Dr. who evaluated , that the parents are also entitled to be reimbursed for their transportation expenses, as a related service, and that equities favor the parents’ requests. (IHO Ex. VII).

EVIDENCE AT HEARING

old young girl with a classification of . Her classification is not in dispute. (Par. Ex. A, B). Ms. mother, testified that and services through the Committee on Preschool Education (“CPSE”). She attended the , a regular school, from , and received supports through the CPSE; and then the CSE, which included physical therapy, occupational therapy (“OT”) and speech (“ST”). (Tr. pp. 11-12). At the was placed in a classroom with twelve students and two teachers, but was . Her and she was having great difficulty (Tr. p. 13).

At the end of her s s first grade year, Dr. , a licensed psychologist, conducted a neuropsychological evaluation . She testified that was a bright girl but had challenges which impacted her . (Tr. p. 69).^[1] At that time, Dr. recommended receive OrtonGillingham (“O-G”) multi-sensory reading instruction, in addition to and ST. (Tr. p. 71). Later that year (in December 2010), when it was felt that her improvement within the general education environment was not adequate, Dr. recommended a full-time special education program. (Tr. pp. 71-72).

Ima began to attend the for the 2011-2012 school year. (Tr. p. 13). On March 13, 2012, the CSE met to review Ima’s program. The CSE recommended placement in an Integrated Co-Teaching Services (“ICT”) class, with related services of ST three times per week individually and twice per week, individually. (Par Ex. B). Ms. mother, testified that she agreed with the CSE’s recommendation for a collaborative team teaching placement, because it was explained to her that due to , a smaller class would not be appropriate for her. (Tr. pp. 43, 48). The disputed IEP, however, notes that while the parents voiced agreement with the committee’s recommendation, they expressed their concerns regarding class size as they felt it was evident Ima benefits from a small class. (Par. Ex. B, pp. 12-13).

On August 22, 2012, after viewing the proposed placement, the parents wrote to the CSE rejecting it. In their letter, they described the environment as chaotic and disorganized, and stated that it is key to be in a small classroom with individualized teaching in a consistent, distraction free and structured environment with a minimal noise level. They indicated their intention to enroll for the 2012-2013 school year and seek tuition reimbursement and busing. (Par. Ex. C). They did not receive a response to their letter. (Tr. p. 14).

In February 2012, prior to the CSE review, the parents signed a contract enrolling for the 2012-2013 school year, with a tuition of $46,600, including a non-refundable registration deposit of $4,000. There were additional fees of $1,625.00; and the parents were awarded financial assistance in the amount of $20,000. They paid a total of $23,380.00 for ’s tuition for the 2012-2013 school year. (Par. Ex. E, R). The parents paid a total of $9,809.64 for ’s transportation for the 2012-2013 school year. ^[2]

Ms. testified that the parents chose because it provides a language based program in every class, with three periods per day of language arts. She testified that classes are small (from 10 to 13 students), and provide a great deal of one-to-one instruction. (Tr. p. 18). During her first year , the parents noted ’s progress in handwriting and reading, and her increased happiness and confidence. During the current school year, has continued to progress academically; and in her classroom participation. (Tr. p. 19) receives homework, and performs it independently. (Tr. p. 20). While she continues to , she has improved in her ability to have a conversation. (Tr. p. 23). does not receive traditional , but the parent testified that both of these needs are addressed through the school’s language program. (Tr. pp. 37-38).

For the current school year, Dr. continued to recommend that attend a private special education program. She testified that s progress was slow and she was not ready to return to a general education environment. (Tr. p. 73). In a report dated September 14, 2012, Dr. continued to recommend that receive intensive, full day, multisensory remediation in a specialized setting for ; and that she receive intensive intervention using an OG, or a similar educational program. She recommended receive multisensory instruction and assistance in developing her reading, spelling and writing skills. (Par. Ex. H). She testified that she is familiar , and that it is an appropriate setting , because the school uses a simplified language centered, multisensory approach to education throughout the school day, in a small classroom setting, can get the clarification she needs to process the information and learn. (Tr. p .74) She testified that O-G uses an approach where tasks and concepts are overlearned and frequently reviewed and presented in a multi-sensory manner, so that memory traces could be fully formed. She testified that it is critical to receive that type of instruction, and that it is offered at . (Tr. p. 78).

Dr. testified that her recent testing showed that after she completed her first year of instruction at Windward, Ima made progress across the board, most notably in reading comprehension. (Tr. p. 76). While her decoding and math skills were still delayed by two academic years, her reading comprehension was approaching grade level expectations. (Par. Ex. H). She demonstrated greater focus and confidence. (Tr. p. 77).

Dr. , a certified school psychologist, testified that she performed an observation on February 7, 2013, at the request of Dr. . (Tr. p. 94; Par. Ex. S). Dr. observed Ima for an hour and one-half during language arts/ writing instruction, which took place in a class with a staffing ratio of eight students one teacher and one assistant teacher. She wrote that Ima required one-to-one assistance throughout the duration of the observation. (Par. Ex. S). She testified and received a lot of immediate feedback from the classroom teacher. She described the classroom as large, clean, and with a minimum of visual distracters. The teacher gave very clear directives and repetition as needed. The environment was quiet, and the children were very easily able to focus on the teacher. (Tr. pp. 102-103). Dr. described as very internally distracted. She looked around the room frequently and , and . The teacher and assistant teacher kept on redirecting her to the exact page or the smart board. (Tr. pp. 105-106). She observed the students using skywriting, before they sat down to write a word. This type of instruction appeared to be beneficial to Ima, as she moves around a lot. (Tr. p. 108). Ima appeared to be appropriately grouped in her class. Dr. testified that in her opinion, is an appropriate educational environment for Ima, due to her academic needs and because . (Tr. p. 109).

Dr. the head of the school informed Dr. that all of the teachers at the school used the type of interventions used by the language arts teacher which Dr. observed. (Tr. pp. 110-111).

Dr. testified that attends the lower school , in grade, and that the school has a total of 209 students. (Tr. p. 95). uses the preventing academic failure model of instruction, based upon the O-G model, which is a multi-sensory approach, using movement and motor activities throughout the day. The head of the school informed Dr. that all of the teachers are certified, and receive extensive teacher training in O-G . (Tr. pp. 99, 114).

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998). In these proceedings, the DOE conceded that it was unable to meet its burden of proving the appropriateness of its recommendations.

APPROPRIATENESS OF PARENTAL PLACEMENT

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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 Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007). While the parents are not held as strictly to the standard of placement in the least restrictive environment as school district, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. M.S. v. Bd. Of Educ., 231 F. 3d 96 (2d Cir. 2000).

I find that the parents satisfied their burden of proving provides with educational instruction specially designed to meet her unique needs. I credit Dr. that is an appropriate setting , because the school uses a simplified, language centered, multisensory approach to education throughout the school day, in a small classroom setting, where Ima can get the clarification she needs to process the information and learn. Ima has made progress across the board, , most notably in reading comprehension. The record supports the parents’ decision to place in a specialized school, where she has no access to non-disabled peers. No evidence was presented that her needs could be met in a less restrictive setting.

EQUITABLE CONSIDERATIONS

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084

The record indicates that the parents participated in the CSE review, went to see the recommended site, and gave the required notice of their intent to place Ima unilaterally and seek reimbursement. While the parents stated they agreed with the recommended ICT program, the IEP notes that they expressed their concerns regarding class size and their opinion that Ima benefits from a small class. I find that overall, the parents were cooperative and reasonable in their dealings with the DOE.

The tuition charged is reasonable, taking into account the specialized nature of the instruction provided. Ima was awarded a $20,000.00 scholarship. The parents are also entitled to be reimbursed for their transportation expenses, of $9,809., which I also find to be reasonable.

ORDER

Therefore, it is hereby ordered that the DOE shall reimburse the parents for the amount they actually paid for Ima’s tuition and expenses for the 2012-2013 school year up to $28,225.00, (tuition and expenses of $48,225.00 less the $20,000. scholarship which was awarded to ); and for their transportation expenses, up to $9,809, upon presentation of proof of payment thereof. ^[3]

Dated: May 10, 2013

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer DML: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

PARENT

A Hearing Request, 10/31/12, 9 pp. B IEP, 3/23/12, 14 pp. C Correspondence to CSE with Proof of Mailing, 8/22/12, 3 pp. D 2012-13 Class Schedule, 1 pg. E Enrollment Contract, 2/13/12, 2 pp. F Proofs of Tuition Payment, various dates, 3 pp. G Invoices for Transportation to School, 1/29/13. 2 pp. H Numerous Psychological Evaluations Update by Dr.

, 9/14/12, 17 pp. I Neuropsychological Evaluation Update by Dr.

12-17-10, 17 pp. J Evaluation, July/August 2010, 35 pages K Letter from Dr. , February 2013, 2 pages L Progress Report, 2012-2013, 17 pages M School Description, undated, 2 pages N School Program Description, undated, 13 pages O Parent Affidavit re Loan, 2/25/13, 1 page P Proof of Payment for Transportation Expenses, 1/2/13 and 9/30/12,

4 page Q Parent Proof of Payment for Transportation Expenses, 1/1/13, 1 page R Tuition Affidavit, 10/9/12 1 page S Windward School Observation, 2/7/13, 2 pages T Proofs of Tuition Payment, various dates, 5 pages U Affidavit, 2/25/13, 1 page V Affidavit re Loan, 1/31/13, 1 page W Summary of School Tests, various dates, 2 pages X Letter from CSE, 8/15/12, 1 page

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

IV CFU dated 3/20/13, 1 page V CFU dated 4/9/13, 1 page VI DOE Closing Statement, undated, 6 pages VII Parent’s Closing Statement dated 4/30/13, 14 pages VIII Email Correspondence, 5/6/13, 3 pages

Footnotes

[1] On the WISC-IV, Ima achieved a full scale IQ of 119/120, on the cusp between the high average and superior ranges of intelligence. (Par. Ex. J-12).

[2] Of that amount, $3,693.04, was actually paid by the maternal grandfather, John P.; however the parents are obligated to repay that amount by June 30, 2018. (Par. Ex. O, P , Q).

[3] The parents are also entitled to be reimbursed for the portion of the transportation expenses paid by the grandfather, as they are obligated to repay that amount.