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: April 18, 2013

May 21, 2013

June 4, 2013

July 9, 2013

Actual Record Closed Date: July 23, 2013

Hearing Officer: Michael Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2013

SCOTT COHEN, Attorney — Student

Mother — Student

Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

SCOTT COHEN, ESQ., Attorney, Law Offices of Lauren Baum — Student

Representative — DOE

and — DOE

Placement Officer, Committee on (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2013

SCOTT COHEN, ESQ., Attorney, Law Offices of Lauren — Student

Baum — Student

Parent/Mother — Student

(Via Telephone) — Student

(DID NOT TESTIFY)

For the Department of Education: , Committee on Special Education Four, Representative (Via Telephone)

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

SCOTT COHEN, ESQ., Attorney for Parents — Student

Parents

Educational Dir. (Via Telephone) — Student

Director, (Via Telephone) — Student

By Amended Complaint dated January 9, 2013, the matter of 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.

The Complaint alleges that the District’s Individualized Education Program (IEP) dated May 9, 2012 recommended an inappropriate program for the Student. The parent contended, inter alia, that the IEP did not reflect the Student’s present levels of performance, that the team did not rely on sufficient data, that the management needs do not provide the individual attention that the Student requires, that the goals in the IEP are inappropriate, that the promotional criteria in the IEP are inappropriate, that the IEP does not address the Student’s instruction outside of the setting, and that there are no transitional supports in the program. The parent also alleges a variety of claims relating to the placement in this matter. As relief, the parent seeks reimbursement for the for 2012-2013.

A prehearing conference was held on January 10, 2013 to discuss the amendment.

The matter did not resolve during the resolution period. A hearing date was scheduled on March 29, 2013. The District moved to adjourn this hearing date. There was no opposition from the parent. This application was granted.

On March 30, 2013, the parent sought to extend the decisional timelines. The reason given was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was May 1, 2013. 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 objection by the District. The parties were provided with written notice of this extension. (Impartial Hearing Officer (IHO) Exh. 1)

A hearing date was scheduled for April 18, 2013. On April 18, 2013, both sides sought to extend the decisional timelines. The reason given was due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was May 31, 2013. 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. The parties were provided with written notice of this extension. (IHO Exh. 1)

A hearing date was held on May 21, 2013. On May 31, 2013, the parent sought to extend the decisional timelines. The reason given was due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was June 30, 2013. 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 objection by the District. The parties were provided with written notice of this extension. (IHO Exh. 1)

A hearing date was held on June 4, 2013. A hearing date was scheduled for June 11, 2013. The parent moved to adjourn this date. This adjournment request was granted.

On July 1, 2013, the parent sought to extend the decisional timelines. The reason given was extensive testimony and issues. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was July 31, 2013. 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 objection by the District. The parties were provided with written notice of this extension. (IHO Exh. 1)

The hearing concluded on July 9, 2013. The parties submitted briefs on July 23, 2013. (IHO Exhs. 2, 3)

FINDINGS OF FACT

The Student is a old who is eligible for services as a Student with a

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 A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Education Act (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. 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 Second Circuit has recently underscored the importance of writing detailed IEPs that address all of the Student’s academic and social issues. The court indicated that “parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) cert. denied, 2013 WL 1418840 (U.S. June 10, 2013)

A recent Court has stressed the importance of reassuring parents that their child’s reactions are addressed by a school district’s program and placement. Judge Koeltl, in D.C. ex rel E.B. v. New York City Dep’t of Educ., 113 LRP 12931 (S.D.N.Y. 2013), held that a placement offer denied the Student a FAPE because an employee of the school during the parent visit indicated to the parent that that the school could not address student’s seafood allergy as per IEP requirements.

Here, the record establishes that the Student has , and that the parent and his teacher mentioned this fact at the CSE meeting. While the IEP team did indicate that the Student had a in the IEP, the reference is in passing, in combination with a reference to a . There are no interventions suggested in the IEP to address this and the management needs section of the IEP does not reference this allergy. It is noted that the school employed a specific protocol in connection to the , including an at the school, a , and a rule prohibiting . No such protocol is indicated on th IEP. It is also noted that, when the parent visited the school, the school did not provide the parent with any reassurances that the school would address the While testimony during the hearing did indicate that the proposed school may employ certain measures to address the parent could not know of these statements at the time of the placement decision. Accordingly, this testimony should not be considered in connection to this analysis. R.E., 694 F.3d at 186.

However, there is nothing in the IEP that actually recommends that the Student receive instruction. The management needs section of the IEP is written to address “the nature (type) and degree (extent) to which environmental and human or material resources are needed to address needs above.” There is nothing in the management needs section . Nor is there anything in the management needs section about instruction. Moreover, in the section of the IEP entitled “Recommended Special Education Programs and Services,” there are no services dedicated to the instructional needs. Finally, and most importantly, the testimony of the IEP witness makes no reference at all to or small that would be provided to this Student per this IEP.

In regard to the goals in the IEP, the Circuit recently underscored the importance of having appropriate goals and objectives in a Student’s IEP. M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(where goals not measurable and too advanced for Student, FAPE denial resulted). Here, as in M.H., the parent points out that the goals are unrealistic. In particular, the parent points to the fact that the reading goal in the IEP anticipates the Student improving his ELA abilities to meet the ELA standards for although the Student would not receive adequate instruction. The record indicates that the Student was reading at at the start of the school year. I agree with the parent that this goal is unrealistic for the Student, particularly in view of the fact that the Student would not receive appropriately intense reading instruction that was recommended in the teacher report. Similarly, the writing goal indicates that the Student is to “develop and improve his written expression abilities on grade level.” However, the Student’s writing level level at the start of the school year, making “ old student unattainable given this Student’s history and background.

As a result of the foregoing, I need not address the parent’s other contentions in this regard. The parent prevails 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 program provides the Student with a large range of interventions to address his special education needs, including with focus. The Student is provided with modified instruction to address his issues, particularly in . is provided to students throughout the day. The program provides classes for students.

The District argues that the school did not do any formal assessment of the Student. However, courts have held that parental placements needs not conduct assessment of particular students to satisfy the requirements for reimbursement or payment pursuant to Burlington. In A.D. and M.V. on behalf of E.D. v. New York City Dep’t of Educ., 690 F. Supp.2d 193 (S.D.N.Y. 2010), Judge Denise Cote was presented with a tuition case involving the Rebecca School. The IHO had found for the parent, and the SRO had reversed in part on the grounds that the school did not conduct certain testing of the student. Judge Cote reversed, citing to Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364-365 (2d Cir. N.Y. 2006):

Because "a private placement need not provide . . . an IEP for the student," Frank G., 459 F.3d at 364,

Rebecca had no duty to conduct the tests which underlie a successful IEP. Rather, Rebecca's appropriateness as a unilateral placement is determined by whether Rebecca

"provide[d] education instruction specifically designed to meet the unique needs" of the student. Gagliardo, 489 F.3d at 115 (citation omitted).

The District also indicates that the parental placement is inappropriate because it is and is religious in nature for a significant portion of the day. The District therefore suggests that any award should be reduced accordingly. However, the District presents no authority for this argument. My independent research indicates that SROs have awarded full tuition payment or reimbursement for such schools in the past. Application of the, Appeal No. 11-037 (Sinai program); Application of a Student with a Appeal No. 07-098 ( ).

The District also argues that the Student’s related services were not provided by

However, the parent did arrange for the Student to receive appropriate related services. To this IHO, the fact that the particular school did not provide the services is not material to an award of tuition payment as long as the parent was able to cobble together an appropriate program for the Student. The District also argues that the classroom at the was not appropriately grouped, but there is nothing in the record to suggest that the grouping had any adverse impact on the Student. 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 y 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.

The District argues that the parent signed a contract prior to the IEP meeting, but there is nothing in the record to suggest that the parent did not consider the District placement. In most of the reported cases where reimbursement or payment is ordered, courts understand that a parent must secure a spot at a parental placement to to secure a space for the child should the District not provide an appropriate IEP and placement.

The District also argues that the IDEA does not contemplate an award of prospective funding to a school. This IHO disagrees. Where Districts have failed to offer students a FAPE, courts have ordered that schools be paid for education that was previously provided. This argument was squarely addressed by Judge Paul Gardephe in a case which involved a parent with who was seeking funding to attend . Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011). Judge Gardephe explained that parents of modest means must have the same options under the IDEA as more wealthy parents. Judge Gardephe indicated that a contrary ruling would be “entirely inconsistent with IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of children in our nation.” Id. at 428. Judge Gardephe stated:

Presumably, nearly all parents who make a unilateral placement under the IDEA and then seek tuition reimbursement act at least in part out of a hope, belief or expectation that the school district will ultimately be forced to fund their placement. The only difference in this case is that the absorbed some of that risk, by agreeing with a needy family to a permissive payment schedule. That agreement does not change the fact that Defendants denied the student a FAPE, that the School was an appropriate placement, and that equities favor the payment of tuition, and that Sect. 1415(i)(2)(C)(iii)

is sufficiently broad to encompass the retroactive direct payment relief Plaintiffs seek.

Id. at 430; see also P.K. v. New York City Dep’t of Educ., 819 F.Supp.2d 90, 117 (S.D.N.Y. 2011), aff’d, 2013 WL 2158587 (2d Cir. May 21, 2013); Connors v. Mills, 34

F. Supp.2d 795 (N.D.N.Y. 1998) It is noted that a student does not even have to attend a school for a hearing officer to order payment or tuition to that school. A hearing officer or a court may simply order a student to attend a particular private placement in the future if it is appropriate to insure that a Student receives a FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a , Appeal No. 08-103 n.9. As the 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.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 471 U.S. at 369.

It is noted that the parent complied with all District demands and requests and provided the District with appropriate notices here. N.R. v. New York City Dep’t of Educ., 2009 WL 874061 (S.D.N.Y. 2009) at *6-*9. The District does not contend otherwise.

Accordingly, I find that the parent prevails on the third criterion and is awarded tuition payment to for 2012-2013. Dated: July 31, 2013

______________________

MICHAEL LAZAN, ESQ. ML;mv Impartial Hearing Officer

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 Amended Complaint, 1/9/13, 7 Pages B Original Complaint, 11/6/12, 5 Pages C Letter to , 8/15/12, 2 Pages D Letter to , 1/15/12, 2 Pages E Letter to , 1/15/12, 5 Pages F Letter to 2/19/13, 3 Pages G Letter to , 3/15/13, 3 Pages H 2011/12 School Survey Report , 19 Pages I 2011/12 1 Page J 2011/12 Progress Review Overview for , 1 Page K 2011/12 Progress Report for 8 Pages L Affidavit of , 11/21/12, 1 Page L Update Exhibit L with new document M Tuition Contract and Fees, 4/17/12, 2 Pages N Description, Undated, 1 Page O 2012/13 Class Schedule, 1 Page P September 2012 to March 31, 2013 Attendance Record, 1 Page Q Tax Return from 2011, 3 Pages R document, list of events, Undated, one page R Report, miscellaneous dates, One page S Dated 4/4/13, Teacher Report, five pages T Dated 9/5/12 to 5/5/13, Proof of Payment, 14 pages

DEPARTMENT OF EDUCATION

1 Notice of Resolution Meeting, 1/14/13, 3 Pages 2 Resolution Response Form, 11/21/12, 1 Page 3 Notice of Scheduled Resolution Meeting, 11/8/12, 3 Pages 4 Response, 11/13/12, 3 Pages 5 Final Notice of Recommendation, 5/9/12, 1 Page 6 IEP, 5/9/12, 16 Pages 7 Conference Agenda Sheet, 5/9/12, 3 Pages 8 Review Meeting Questions, 5/9/12, 4 Pages 9 Teacher Report, 5/1/12, 6 Pages 10 , 3/13/12, 1 Page 11 Update, 5/7/12,1 Page 12 Report, 5/19/12, 2 Pages 13 , 3/14/12, 4 Pages 14 , 4/20/12, 2 Pages 15 Documents from , 4/20/12 through 8/3/12 18 -- 16 Class Schedule for 2012/13, 1 Page

IHO

I Timeline Notices, 4 pp II District Brief, 7/23/2013, 13 pp. III Parent Brief, 7/23/13, 32 pp.