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: January 22, 2013

March 6, 2013

April 24, 2013

June 5, 2013

June 12, 2013

Actual Record Closed Date: June 26, 2013

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 22, 2013

Attorney — Student

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2013

Attorney — Student

Parents

Director, (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2013

Attorney — Student

Parents

Teacher (Via telephone) — Student

Speech language pathologist (Via telephone) — Student

ELSIE GRANDOIT, CSE-8 Representative — DOE

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

Attorney — Student

Parents

Psychologist (Via Telephone) — Student

Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2013

Attorney — Student

Parent/Mother — Student

CSE Representative — DOE

By Complaint dated October 31, 2012, the matter of Olivia W. came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

This is a matter involving various FAPE denial claims stemming from an Individualized Education Program (IEP) meeting dated June 19, 2012. The parent is seeking reimbursement/payment of tuition at for 2012-2013. The parent is also seeking reimbursement/payment for the assessments of Drs. .

The matter did not resolve through resolution. On January 7, 2013, a prehearing conference was held. There were no issues raised between the parties. A hearing was scheduled for January 22, 2013. Other hearing dates were set for March 6, 2013, April 24, 2013, June 5, 2013, and June 12, 2013. Six timelines extensions were granted in this matter. The parties were provided with written notice of these timelines extensions, which were for witness availability by parents (on 1/13, 2/10), witness availability by both parties (on 3/11), due process considerations by parent (on 4/7, 5/6) and to allow the parties to present closing statements (on 6/10). (IHO Exh. 1) For each extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. There was no opposition from the District or parent in regard to these extensions.

FINDINGS OF FACT

The Student is girl who is eligible for services as a Student with a (Exh. B)

The Student . (Exh. K) The Student has and often . (Exh. E, 74) The Student’s Full Scale . (Exh. E) The Student , has functions, and the borderline range. Overall testing on the WIAT-III indicated that the Student was functioning at the

The Student’s reading . (Exh. E) The Student also when together. (Exh. G) She has . (Exh. E)

She requires more successful in small groups. (50) She is distractable. (85)

The Student previously . (Exh. J)

A was conducted of the Student by Dr. in April-May, 2012. (Exh. E) Dr. Alter administered a general , including the WISC-III, the NEPSY, WIAT. (179-182) The Student indicated a consistent issue with respect performed of verbal comprehension, and was particularly . (181) On the WIAT, the Student scored on the in reading, in reading fluency. (183)

She had difficulty with .” (189) Dr. Alter diagnosed the Student as having a language based learning disability, that she holds onto visual elements better. (187-188) He recommended that the Student be in a small classroom for children with language based disorders that uses “language based models” such as Orton-Gillingham. (190) Multi-sensory instruction is recommended. (190)

A evaluation was conducted by Nancy Eng, a pathologist, on December 4, 2012. (Exh. K) Dr. Eng tested the Student on the Illinois Test of Psycholinguistic Abilities, the Comprehensive Assessment of Spoken Language, and Receptive One Word Picture Vocabulary Test, the Expressive One Word Picture Vocabulary Test, the Test of Articulation Skills. The assessment was conducted in Cantonese and English. The Student showed mild to moderate receptive comprehension conversational skills, a poor ability to convey ideas to listeners. are recommended for the Student.

At , the Student is in a class with ten students and two teachers. (Exh. J) She receives language therapy two times a week with one other child, and occupational therapy one time a week with another child. (Exh. J) The Student receives OrtonGillingham instruction or reading with four other children. (Exh. J) The school provides the Student with repetition, cueing, modeling, and 1-1 support. (Exh. J) support is provided through the additional teacher in the classroom, who is a “floater.” (88)

The School provides the Student with a Saxon math program in a small group. A SMART board is used. (Exh. J) FM amplification is used in the classroom.

The school teaches writing through the Teaching Basic Reading Skills program.

(42) The Student’s teachers are certified. (45-47)

Students in the classes are students with special education needs, largely students with learning disabilities. (45-48)

The Student has made progress at . (Exh. J) The Student benefits from small group instruction and is benefitting from instruction. (58) She has made progress in decoding, encoding, building vocabulary. (Exh. J, 108) She can now understand improved, her awareness , she can understand the calendar and the date better. (108)

The parents signed an enrollment contract for the Student to on July 3, 2012. (Exh. H)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The District concedes on the first criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record indicates that the Student’s special education needs relate to . The record indicates that the Student requires instruction, individual instruction. The record indicates that all these interventions are provided , where the Student has progressed in progress in decoding, encoding, building vocabulary, understanding sentences better, addition and subtraction, awareness of coins, understanding of the calendar.

The District contends that the is not the Student’s LRE. However, parents do not have the same burden as the District in terms of least restrictive environment, though restrictiveness can be considered in deeming whether an award is appropriate. M.S. v. Yonkers, 231 F.3d 96 (2d Cir. 2000). However, the District has conceded that it did not provide an appropriate placement here, and there is no evidence or testimony in the record to the effect that the parent could have sent the Student to another school that would have provided the Student with less restrictiveness that would also have provided the Student with the necessary special education accommodations. Moreover, the neuropsychological assessment by Dr. specifically recommends a classroom like that at , and indicates that the Student needs to be with similar peers.

The District also protests that the Student did not require but points to no authority to the effect that the provision of a service that is not absolutely required for a Student is a grounds for denying reimbursement. Moreover, there is testimony in the record that the Student’s visual-perceptual skills are weak, and that the occupational therapy is helpful to the Student. (54)

Under the circumstances, the parent prevails on the second criterion.

On the third criterion, the IDEA allows 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, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.

There is no suggestion that the parent failed to allowed the District to observe the child, to assess the child, or to conduct an IEP meeting. It should be noted that, where a District fails to defend its offer, equitable considerations should ordinarily not bar reimbursement. N.R. on behalf of T.R. v. Department of Education of the City School Dist. of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). As Judge Barbara Jones put it:

the Department's “abdication of its responsibility to provide ... FAPE is so clear from the record—and the law's imposition of this duty on the [Department] is so well-settled—that ... the equities favor the parents.”

Gabel v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F.Supp.2d 313, 329 (S.D.N.Y.2005) (granting tuition reimbursement claim). Indeed, Defendants have not cited, and the Court is unaware of, any case in which equitable considerations favored a school district that failed to offer a disabled child a school placement prior to the commencement of the school year.

N.R. ex rel. T.R. v. Dep't of Educ. of City Sch. Dist. of City of New York, 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) at *7; cf. R.B. and H.Z. v. New York City Dep’t of Educ., 713 F. Supp.2d 235 (S.D.N.Y. 2010)(District did not provide final notice; parent not required to provide notice under third criterion). As a result, the parent prevails on equities and is awarded tuition reimbursement for Mary McDowell School for 20122013.

In regard to the parent’s request for reimbursement for the cost of the two assessments, ordinarily such assessments should be requested by the parent prior to hearing. When a parent requests an independent educational evaluation, a school district must, without unnecessary delay, either ensure that an independent educational evaluation is provided at public expense, or initiate an impartial hearing to show that its evaluation is appropriate. 34 C.F.R. § 300.502[b][2]; 8 NYCRR 200.5[g][1][iv]).

Here, the parent requested the cost of the assessment through an impartial hearing without going through the steps outlined above. However, it has been held that a parent is entitled to an independent evaluation at District expense through a Due Process Complaint if the parent can show that the parent’s evaluation identified needs and programs that were not previously identified by District evaluations. Hyde Park Central Sch. Dist. v. Peter C., 21 IDELR 354 (S.D.N.Y. 1994).

On this record, there is no evidence that the District or the parents had any assessments relating to the Student’s issues prior to the assessments in question. The District’s CSE conducted a review of the Student, but apparently did not conduct a speech and language assessment and did not conduct a psychological assessment of the Student. The IEP specifically references the assessment by Dr. Alter. Under the circumstances, this IHO is of the view that the parent’s assessments were reasonable and necessary.

The District argues that both evaluations are flawed, but did not present any testimony or evidence to support thesed contentions.

It is noted that, where there is FAPE denial, a hearing officer has the discretion to order whatever relief he deems appropriate under the circumstances. Application of the New York City Department of Education, Appeal No. 05-113. As the U.S. Supreme Court stated in Burlington: “The statute directs the court to "grant such relief as [it] determines is appropriate." The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be "appropriate."”

Accordingly, I will order reimbursement of both the Eng and Alter assessments. Dated: July 10, 2013

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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

PARENT

A Complaint, dated 10/31/12, 8 pages B IEP, dated 6/19/12, 9 pages C Final Notice of Recommendation, dated 7/12/12, 1 page D Parent Correspondence with proof of delivery, dated 9/7/12, 13 pages E Neuro-psychological Evaluation by Dr. Alter, dated 2/12, 17 pages F 2010 Speech and Language Progress Report, 1 page G Teacher Report, dated 11/26/12, 1 page H Contract with Cancelled Checks,

2012/2013, 10 pages I Cancelled Checks for Payment to Dr. 5 pages J Friends School Progress Report, dated 9/12-2/13, 25 pages K Bilingual Speech Evaluation, 7 pages L Bilingual Speech and Language Evaluation Addendum dated 12/4/2012, 1 page

DEPARTMENT OF EDUCATION

1 Declination Letter of Parent Member, dated 6/19/12, 1 page 2 Progress Report, dated 5/3/12, 1 page

IMPARTIAL HEARING OFFICER

1 Timelines Emails, 6 pages