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: June 13, 2013

September 13, 2013

October 16, 2013

October 28, 2013

Actual Record Closed Date: November 25, 2013

Hearing Officer: Judith Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013

ESQ., Attorney (Via Telephone) — Student

Chairperson's Designee, — DOE

Committee (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13,

2013

Attorney — Student

Mother — Student

District Representative — DOE

(Via telephone) — DOE

(Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2013

Attorney — Student

Mother — Student

(Via telephone) — Student

DOE Representative — DOE

(Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2013

Attorney — Student

Parents

(Via Telephone) — Student

(Via Telephone) — Student

DOE Representative — DOE

INTRODUCTION

On September 13, 2013 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free and appropriate public education (FAPE) to . (“the student “) for the 2012-2013 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. At the request of both parties, the hearing was continued on October 16, 2013 and October 28, 2013 and the requests for 30- day extensions made by both parties were granted based upon witness availability.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On November 14, 2013.the parent filed a request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2012-2013 school year. Thus, the student, who had been attending the () for the 2011-2012 school was unilaterally placed by his parents at for the 2012-2013 school year. The parents seek tuition reimbursement in part and direct payment in part.

THE PARENT’S POSITION

THE DOE’S POSITION

The DOE contends that its recommended program provided the student with a FAPE. It further contends that the CBST is an independent body that can reverse or modify the CSE recommendations. It contends that in any event, is not an appropriate placement for the student and that the equities tip in the DOE’s favor.

THE EVIDENCE PRESENTED

The student was classified as . (Ex. 1, 2, 3, 4, A, B, P). He has I)

Conclusions of Law

Under the IDEA, a child with a is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a , and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a , Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). The DOE has the burden of proof regarding both of these issues which it did not meet.

Procedural inadequacies that result in the loss or denial of educational opportunity, impede a child’s right to a FAPE, or seriously infringe the parents' opportunity to participate in the individualized educational program formulation process, constitute in the denial of a FAPE. 20 U.S.C. 1415(f)(3)(E)(ii); Werner v. Clarkstown Cent.

Sch. Dist., 363 F.Supp.2d 656, 659 (S.D.N.Y. 2005) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 (6th Cir. 2001).

There is no authority cited by the DOE for the CBST to reverse the recommendations made by the CSE. Indeed, in November 2013, the New York State Education Department (NYSED) issued a non-published decision in which it found that CBST may not reject IEP recommendations for deferrals to CBST or for a nonpublic school.^[1] NYSED has ordered the DOE to direct the CBST to cease this practice immediately and cited to 8 NYCRR §200.4(e)(2) to support its holdings. Moreover, in this case, the record itself demonstrates that the DOE failed to meet its burden to show that the ICT recommendations made at the July meeting would have offered the student a

FAPE.

The DOE did not present any evidence the hearing to show any of the circumstances changed since the IEP meetings held in March and June, both if which resulted in a recommendation of an The June IEP team wrote a rationale for why its deferral to CBST was appropriate. (Ex. Q). The CSE specifically noted that CBST rejected the case because the student’s reading . (Ex. Q-1). Yet, the CSE pointed out the student’s issues.

The evidence shows that the teams relied on the same information at each IEP meeting including the one held in July. There were no additional documents provided at the July meeting to support a different conclusion. (T. 151). The only reason given at the hearing for the change was because CBST had twice rejected the case for an . Thus, since the CSE had no new information at the July meeting, the team could not defer the case to CBST again and without justification, altered the recommendation. (T. 137).

Although the person at the CBST attempted to detail why the student would be appropriately placed in a less restrictive setting than an , she had no special education degree or experience and was unaware of why the CSE was recommending an . (T. 44-45, 93, 95). On the other hand, a member of the CSE who is a special education teacher, an and had more familiarity with the continuum of programs that the CSE had to offer a student (T. 183-186) agreed, together with the other members of the CSE team, that the student required a and a . (T. 204, 240, 242, 304-305). The documentation and information discussed and presented at the March and June IEP meetings fully support a nonpublic school recommendation. (T. 250).

The parents’ allegations regarding placement and implementation of the IEP were not addressed at the hearing. (Ex. 1; T. 180). A district provides a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). Subsequent to its development, an IEP must be properly implemented (8 NYCRR §200.4[e][7]; Application of a Child with a , Appeal No. 08-087). The DOE must demonstrate that it could implement this IEP, which includes offering a placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel E.B. v. New York City Dep’t of Educ., 12 Civ 1394 Opinion and Order at 33, citing O.O. v. District of Columbia, 573 F.Supp. 2d 41, 53 (D.D.C. 2008) (citing 20 U.S.C. § 1401(9) (“The term [FAPE] means special education and related services that . . . are provided in conformity with the [IEP].”)). The DOE did not do so at the hearing.

Based on the foregoing, the DOE has not complied with the procedural and substantive requirements of the IDEA and failed to show that the last IEP and recommended placement would have provided a FAPE.

The parents then have the burden to show that their unilateral placement was appropriate, not that it is perfect. Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); see also M.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). “The issue turns on whether that placement is ‘reasonably calculated to enable the child to receive educational benefits.’” Frank G. v. Bd. of Educ., 459 F.3d 356-365 (2d Cir. 2006). The evidence establishes the appropriateness of the parents’ unilateral placement of the student at .

Finally, the equities must support an award of tuition payment. A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” N.R., on behalf of T.R., v. The Dept. of Educ. Of the City Sch. Dist. Of the City of New York, 2009 WL 874061 (S.D.N.Y., March 2009). One must look at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. Id. at 16. “In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” SRO Decisions 05-030, 04-091, 04-049.

These parents cooperated throughout the IEP process. They informed the CSE of their concerns and never inhibited the IEP process. (Ex. C, D, E). Additionally, after the parent visited the proposed program, they wrote to the CSE again detailing their concerns and disagreement. (Ex. E). No one responded to the parents’ concerns or letters at any time. (T. 254-255). The parents sent these letters to the DOE putting it on notice of their concerns and informing the CSE that if the ICT recommendations were inappropriate, they would have no choice but to pursue placement at . (Ex. D, E). The parents had every right to be concerned about the ICT recommendation because on two prior occasions with the same documentation, the CSE recommended a completely different type of program and had concluded that the student could not be educated in the setting being recommended at the July meeting.

Although the parents signed a tuition contract at prior to the July meeting, they only signed this contract to reserve a space. (T. 259-260, 287-288). The parent explained based upon her past experience, she had not received a placement recommendation of any kind from the DOE in 2011 and was fearful that could happen again. (T. 287-288). She was prepared to lose her deposit if the DOE had offered her son an appropriate placement and she understood that if she in fact accepted a DOE placement, she would only be responsible for the initial $5,000 deposit and not the entire tuition payment. (T. 288, 260, 434-435, 440-441). Since the DOE failed to offer the student a FAPE and the student remained at , the parents remain liable for the entire tuition costs. The parents have paid $30,000 (Ex. I) and still owe and additional $21,000 to . They have had financial difficulties due to and have been unable to make all of the payments. (Ex. H; T. 431432, 261-262). The parent testified that although she is unable to pay the balance of tuition, they remain liable for it. (T. 261). Accordingly, equitable considerations favor the parent.

It is Ordered that the DOE: 1) reimburse the parent in the amount of $30,000.00; and 2) make direct payment to in the amount of $21,000.00 for the 2012-2013 school year. Dated: December 10, 2013 _______________________

JUDITH KRAMER, ESQ.

Impartial Hearing Officer JK:mv Attachment Allegation Required The NYCDOE must cease its practice of allowing the CBST to remand the IEPs of students recommended for separate school placements back to the CSE for reconsideration. By November 30, 2013 the NYCDOE must issue a directive to CBST to immediately cease this practice. A copy of the directive must be sent to NYSED no later than November 30, 2013, Evidence to Verify Compliance By December 20, 2013, the Regional Associate will determine compliance by reviewing the documentation submitted.

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’s List

Letter Date Name of Document # of Pages

5/24/12 &

A IEP 23

6/6/12

B 7/30/12 IEP 24

C 5/25/12 Parent Letter 2

D 8/14/12 Parent Letter 3

E 9/13/12 Parent Letter 3

F 3/2012 Attendance 1

G 6/1/12 Contract 1

H 12/6/12 Affidavit 1

Various I Proof of Payment 2

dates

J 2012-2013 Class Schedule 1

November K 5

2012

January L 5

2013

M April 2013 5

N June 2013 5

O 6/2013 Final Attendance 1

P 3/21/2012 IEP with mailing envelope from May 2, 2012 22

Q 6/6/12 CSE Review Rationale 6

R 7/30/12 CSE Review Rationale 1

S 6/6/12 CBST Response 1

DOE Exhibits 1 11/14/12 Due process Complaint, 3pp. 2 12/4/12 Due Process Response, 4pp. 3 7/30/12 IEP, 23 pp. 4 5/24/12 IEP, 21 pp. 5 5/24/12 Update, 3pp.\ 6 7/15/11 , 6pp. 7 5/25/11 cki, 15 pp. 8 7/15/11 , 2pp. 9 7/28/11 Treatment Summary and Recommendations, 4pp. 10 7/18/11 Letter from 3pp. 11 1/10/12 Request for , 4pp. 12 11/9/11 , 2pp. 13 3/21/12 CSE Review Rationale, 6pp. 14 5/8/12 Central Response for Consideration of a State Approved , 1p.

Footnotes

[1] This decision has not been published and while portions of the findings are available through Advocates for Children’s website, the CBST language is not available through their website. However, attached at the end of this decision is the language sent to parents’ counsel from Advocates for Children where the NYSED cites to the regulation and orders to the DOE to cease this practice.