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 4, 2013

May 23, 2013

Actual Record Closed Date: September 11, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

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

ABBIE SMITH, Attorney — Student

Rep — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2013

ABBIE SMITH, Attorney — Student

Parents

Summer Associate — Student

Director of, — Student

School (Via Telephone) — Student

School (Via Telephone) — Student

Representative — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of for the 20122013 school year. The hearing was convened at the written request of parents (the “Parents”) by letter dated November 26, 2012. (Exhibit B) Hearings were held on April 4, 2013, and May 23, 2013, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.

In scheduling the various hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

-old boy who attended n in his , during the 2011-2012 school year as a general education student. During that school year, following a , the Parents requested that the DOE’s Committee on convene a review to determine whether . should be classified as a student with a . The CSE convened on June 13, 2012, and again on July 18, 2012.1 The CSE classified . as a student with a and developed an Individualized Education Plan (“IEP”) for M.R. for the 2012-2013 school year. In the IEP created by the CSE, it

The second meeting resulted in the addition of speech and language therapy. recommended placement in a general education class with the following education services: Education Teacher Support Services (“SETSS”) for

By letter dated July 29, 2012, the Parents described their attempt to visit the proposed program, stated their disagreement with the CSE’s recommendation and belief that requires placement in a full-time education program, and enclosed the report of an educational consultant who accompanied the Parents to the site visit. (Exhibit F) By letter dated August 22, 2012, the Parents, through their attorney, notified the DOE of their intention to place at the Friends School for the 2012-2013 school year and to seek tuition reimbursement from the DOE, if the DOE failed to create a new IEP and recommend an appropriate program. (Exhibit A) By letter dated November 26, 2012, the Parents, through their attorney, asserted that the DOE failed to offer a Free and Appropriate Public Education (“FAPE”), confirmed the Parents’ unilateral placement of and intention to seek tuition reimbursement from the DOE, and requested an impartial hearing. (Exhibit B)

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

The DOE concedes that it failed to offer a FAPE to for the 2012-2013 school year. (Tr. 5, 9)

The DOE argued that, although it failed to offer a FAPE to the Parents’ unilateral placement at is not appropriate. This argument was presented during the DOE’s opening statement as follows:

However, we do disagree with the Parents’ unilateral placement of at the School on the basis that would not have any access to any typically developing peers. In addition, would not receive the full breadth of his related services as they were mandated on his IEP. So for those reasons, we do ask that the IHO deny the Parents’ request for a tuition reimbursement at this time. Thank you. (Tr. 9)

This was the extent of the DOE’s challenge to the Parents’ placement. The DOE did not call any witnesses to offer direct testimony to support its case or to rebut any of the testimony supporting the Parents’ case. In addition, the DOE chose not to present a closing argument following the presentation of the Parents’ case.

Finally, the DOE did not raise any equitable considerations that would serve to diminish or bar the Parents’ tuition reimbursement request.

THE PARENTS’ CASE

is the Director of the Elementary Division . She previously worked at the school as a teacher, worked as a consultant in general and education, maintained a private practice, and worked at the school as a . She holds Masters Degrees in general and education as well as in work. In her current position at Ms. oversees the daily operation of the school, supervises the teachers, oversees curriculum development, manages classroom budgets, works with students and parents, and runs faculty meetings. Ms. explained that is a school for children with learning that strives to create a nurturing and comfortable environment in which students can be best educated to their full potential. There is no religious instruction provided in the school. The range of the students’ learning includes: impairments; specific . There are 129 students in the elementary division for the 2012-2013 school year. Students’ needs are addressed by using small classes, high teacher to student , using in the classroom, and utilizing a . The school’s head teachers have Masters Degrees in education. Many assistant teachers also have a Masters Degree, although one is not required. All teachers who join receive training in the approach to teaching reading and writing. They are also trained in the Program. Professional development programs are provided throughout the school year as well. The school’s curriculum is a modified curriculum developed by reviewing the common core standards and curricula of other independent schools. (Tr. 23-28)

Ms. explained that is an ungraded school where students are grouped by their age, grade in the previous year, and learning and needs. Within the student’s class, they are broken into smaller groups for reading and math which are determined by each child’s specific instructional and functional levels. Ms. described the methods used to assess each child’s performance and instructional levels. She also explained the manner in which progress is measured and the creation of two extensive progress reports each year. The school offers the related services of (Tr. 28-29) does not have any typically developing children in attendance and, other than trips outside of the school, there is no access to typically developing children. (Tr. 40)

has been the head teacher in the for the past three years. She has a Masters Degree in education and is certified by New York State in general and education. The is made up of first and aged students. There is an age range among the students. The assistant teacher in the classroom for the 2012-2013 school year has a Bachelors Degree in and has almost completed her Masters Degree program in general and education. has been in Ms. class since the beginning of the 2012-2013 school year. (Tr. 47-52; 70)

Ms. explained that is in his homeroom class most of the day. Ms. is the lead teacher for studies, - , and writing, which are taught in the larger group of ten students with the assistance of the assistant teacher as well. Ms. is also the teacher for small math group. is in a science class .

The Parents received a placement notice indicating that . was being placed at PS the school he had already been attending. Although Mr. was familiar with the school, he wanted to visit to see the program and learn more about it. He took an education expert with him for the visit. Following the visit, the Parents communicated to the DOE that they did not believe it was an appropriate program for M.R. The Parents sent a letter dated July 29, 2012, to the Principal of PS (Tr. 117-119; Exhibit F) The letter included a report of the educational consultant who observed in his current program at PS and also visited the proposed placement with Mr. (Tr. 119; Exhibit B, pages 6-15) The Parents did not receive a response to their letter. (Tr. 119)

Mr. confirmed that the Parents signed an enrollment contract with for the 20122013 school year on May 30, 2012. The Parents signed the contract to secure a seat for but remained open to considering a public school program for him. The total tuition for for the 2012-2013 school year was $49,177, which the Parents have paid in full. (Tr. 119-120; Exhibits G and J)

Mr. believes that is an appropriate setting for for the 2012-2013 school year. He stated that it has been “an excellent place . to be.” He also stated that “the fact that he can read and write, I think is demonstrative of its appropriateness.” The faculty and staff at are very warm people and are well-credentialed. has also made some good friends at the school. Mr. has observed a decrease in (Tr. 121-122)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has conceded its failure to offer a FAPE to for the 2012-2013 school year. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.

The Parents have the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a , Appeal No. 95-57; Application of a Child with a , Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s education needs. (Burlington, 471 U.S. at 370; Application of a Child with a , Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the unilateral placement by the Parents met education needs for the 2012-2013 school year. It has been persuasively established by Ms. , Ms. , and Mr. as the testimony cited herein documents, that placement at was appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The program was reasonably calculated to allow to make meaningful progress and to address individual needs. In fact, made meaningful progress through his reading and math provided opportunities for the tailoring of material and strategies to meet individual needs.

The DOE offered no testimony or other evidence to challenge the appropriateness of the program. I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

Finally, the DOE does not offer any equitable consideration that would preclude an order in favor of the Parents. The record reflects the Parents’ request for the DOE to classify as a student with a and to provide . with education services. Additionally, the Parents shared the privately obtained and classroom observation with the DOE. The Parents consented to the DOE conducting a of The Parents attended two CSE meetings to address the 2012-2013 school year. Although the Parents communicated their concerns, in writing, to the DOE, the DOE failed to respond to the Parents. Despite the Parents’ efforts, DOE failed in its obligations to and concedes such failure.

The DOE shall reimburse the Parents for the $49,177 tuition they paid for to attend for the 2012-2013 school year. Dated: September 27, 2013

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

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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 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.

DOCUMENTS ENTERED INTO THE RECORD

PARENT

A. Notice, 8/22/12, 2 pages

B. Request for Impartial Hearing, 11/26/12, 15 pages

C. , 4/24/12, 2 pages

D. , 4/29/12, 7 pages

E. Student Report, 9/11-6/12, 4 pages

F. Parent Letter to , 7/29/12, 2 pages

G. 2012-2013 Enrollment Contract, 5/30/12,^[2] pages

H. , 2012-2013, 1 page

I. Attendance Report: 9/12-2/13, 3/5/13, 1 page

J. Tuition Affidavit, 4/2/13,^[1] page

K. Mid-Year Report 2012-2013, undated, 26 pages

DEPARTMENT OF EDUCATION

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Footnotes

[1] , 5/7/12, 1 page

[2] Individualized Education Plan, 7/18/12, 13 pages