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: March 1, 2013

April 17, 2013

Actual Record Closed Date: August 1, 2013

Hearing Officer: Timothy Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2013

STEVEN GOLDSTEIN, ESQ., Attorney — Student

Father — Student

Mother — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2013

STEVEN GOLDSTEIN, ESQ., Attorney — Student

Parents

Parents

(Via Telephone) — Student

School (Via Telephone) — Student

Representative — DOE

On January 3, 2013, I was appointed to conduct an impartial hearing pursuant to the Individuals with Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, (“student” or “”) seeking an appropriate education placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year. My appointment was made following the recusal of the previously-appointed hearing officer.

BACKGROUND

At the time of the hearing,. was a classified with a . The student attended a general education program at during the 2010-2011 and 2011-2012 schools, . See P-D at 2. The student received beginning over the summer of 2011 with a focus on the methodology. Notwithstanding the extra support, skills and she was recommended for during her , also known as the . See P-A1; see also P-F.

parents referred for a private in January 2012 on suspicion she might be exhibiting a , specifically due to her as well as and her notwithstanding the . See P-D at 2. and her with without and as exhibiting a . Id. at 13. noted that demonstrated on her , but exhibited .” Id. He also indicated her . Id. In his report, made a number of program recommendations. On or about April 3, 2012, ’s parents forwarded to the Committee on (“ ”). See P-D at 1.

On or about April 22, 2012, the parents signed an Enrollment Contract for to attend the , and making an $ nonrefundable deposit payment to the school. See P-N; P-V at 1.

The met on or about June 5, 2012, then later again on June 21, 2012 to develop an for the student. See P-A. Soon thereafter, the family provided the with a . See P-E.

On or about August 16, 2012, the parents wrote to the , through their attorney, rejecting the DOE’s program and placement offer, and notifying the DOE they intended to unilaterally place at the . See P-B. Thereafter, began attending the for the 2012-2013 school year. See P-K, P-O.

This case was initiated as a result of a November 20, 2012 demand for due process (“Demand,” see P-A) filed by the student’s Parent through her attorney, Stephen

L. Goldstein, Esq., and received by the Department of Education Impartial Hearing Office (DOE-IHO) soon thereafter, and identified as NYC Case No. 142531.

In their due process complaint, the parents raised the following issues to be decided at hearing, including:

1) The DOE failed identify as a student with for the 2010-2011 and 2011- 2012 school years;

2) In failing to meet its child find duties, the DOE failed to offer for the 2010- 2011 and 2011-2012 school years;

3) The DOE failed to consider the full continuum of placements in refusing to consider a non-public school placement;

4) The meetings convened on June 5 and 21 the student by:

a) being ,

b) failing to levels of performance,

c) recommending objectives,

d) failing to address all of the

e) failing to provide for the student,

f) predetermining the student’s placement, and thereby denying the parents the ability to participate in program and placement determinations,

g) failing to conduct a ”), and

h) failing to consider whether to include a for the student;

5) The DOE failed to provide prior written notice to the student’s family of its intent to place the student in a new placement;

6) The DOE offered an inappropriate program and placement to the student by failing to offer a placement consisting of a functional grouping, and otherwise was unable to meet the student’s unique needs;

7) That in light of the DOE’s failure to offer , the parents’ unilaterally placed in a private setting – the and seek reimbursement of their tuition expenses and/or direct funding;

8) That in light of the DOE’s failure to timely identify as a student with a , seek an order awarding compensatory education for the 2010-2011 and 2011- 2012 time period; and

9) Allege that the equities support the parents’ claim. See P-A.

The DOE conceded it failed to offer the student Tr. 24. The parents presented their witnesses on April 17, 2013. The DOE declined to offer rebuttal witnesses. Thereafter the parties submitted closing briefs. A full list of hearing participants precedes this decision; a list of exhibits accepted into the record follows2.

In light of the DOE’s concession, my decision addresses the appropriateness of the parents’ unilateral placement, i.e the equities of the parties, and whether the DOE’s failure to offer requires the relief of compensatory education.

STANDARD

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012).

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a . 20 U.S.C. § 415(f)(3)(i). In the instant matter, the DOE conceded it failed to offer the student under See Tr. 24.

In conceding a failure to offer the student , the DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). 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. 471 U.S. at 370-71. "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 offered the student a . Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148.

A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to . Frank G., 459 F.3d at 364-65. When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" Frank G., 459 F.3d at 364.

PRONG II

As stated above, parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112. Here, the student was unilaterally placed by his parents in the , and the parents seek the remedy of tuition reimbursement in this action.

is an for students with . See P-J. The lower

Two witnesses testified with particularity about the At the outset I found each of these witnesses to be reliable, and to have testified have clarity and directness. I accept their testimony.

Ms. currently serves as the . She previously as a teacher, spent as consultant for , and served .

curriculum is based on the New York Core standards, individually modified to each student’s needs. Each class in the division has a head teacher possessing a and an assistant teacher. ’s head , and her assistant teacher is . possesses a and is presently completing a . Each class contains an system.

Each teacher is trained in the method of , as well as in the method of teaching skills. Tr. 34. Under the method, information is delivered to students in a variety of ways, incorporating things like pictures, hands-on activities, . Tr. 37. It as "phoneticbased" and "very, very structured[.]" Tr. 35. Similarly, the is also a structured method aimed at producing clear and organized writing by working from the basics and building outwards. Tr. 37.

The students are taught in very depending on the subject in order to individualize and differentiate their instruction. Tr. 37-38. Each student is assigned to a based on age, social compatibility, and background. Tr. 40, 86. They are also grouped into different, according to their . Tr. 62, 86-87. Specifically, is grouped into , all functioning at approximately level. Tr. 72, 86-87, 116-11; See also P-S.

In addition to her classroom instruction, receives – twice weekly in a group – to address her Tr. 43, 64. also receives – to address . 43, 65. She is provided with Tr. 99; P-S. She also makes use of the school's " " to isolate the instructor’s voice amid background noise. Tr. 193, P-S. She may sit on to aid , uses lined nd at a time, and has access to breaks. Tr. 99-105; P-S. Lastly, she is permitted to help and . Tr. 105; P-S.

’s progress report through February 2013 was offered into evidence. See P-S. Ms. testified that the progress report was consistent with her understanding of ’s during the 2012-2013 school year. Overall, Ms. described as a very good , but who nonetheless with , , and . Ms. testified on cross examination that ’s social .

In the , is described as having transitioned well into demonstrating an ability to her morning . shows some , showing throughout the school day. See PS at 1. is described as benefiting from, and requiring, and , teacher modeling, in the classroom, and . Id.

I find that the program offered by is substantially similar to the recommendations made by . See P-D. Further, the record supports a finding that has made progress at her unilateral placement. is able to and to , more , which has helped her overall on her and given her the confidence to try level. Tr. 108-111, P-S.

In light of the above testimony, and after considering the evidence as a whole, I find that the parents has met their burden I find that the parents met their burden in showing provided their daughter individualized to her unique needs. I am similarly satisfied with the evidence presented herein that benefits from her instruction at , and, certainly while not required to be shown nor indicative of whether the parents met their burden, is making more within her unilateral placement.

EQUITIES BETWEEN THE PARTIES

The final consideration in determining whether reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations which apply to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; see Carter, 510 U.S. at 16 ("Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"). With respect to equitable considerations, the IDEA also provides that 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. § 1412(a)(10)(C)(iii).

Taking the above into consideration, as well as the record as a whole, I find no reason to reduce or modify the award herein. In reviewing the testimony offered at the hearing, I find no suggestion that the parents impeded the CSE’s process in any way, shape, or form. Regarding the cost at the , I can identify no credible evidence that the parents and the school have or that the tuition is unreasonable.

I accept ’s parent’s testimony regarding the desire to have educated in a public school. He testified to moving to their current neighborhood because of its school, P.S. 29, as well as their desire to have Tr. 184, 188, 225-229. ’s parent further testified that his younger child presently attends . Tr. 184.

Furthermore, I accept ’s parent’s testimony that, had the DOE been willing to work with the family to develop an appropriate IEP for , the parents would have abandoned their deposit for and placed in a public program. Tr. 218-223’ see also P-B and P-C.I note that the enrollment contract with explicitly provided that tuition payments were refundable if the student enrolled instead in public school. P-N. I also note that the parents purchased tuition insurance to entitle them to a refund under additional circumstances. Tr. 216-217; P-N.

I further note no evidence in the record that the DOE responded to any of the parents’ letters and requests to continue developing an appropriate IEP for Based on the above, I find that the equities support the parents’ claim.

COMPENSATORY EDUCATION

Within the Second Circuit, compensatory education has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the Individuals with Act (ID ) resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 2008 WL 3474735, at *1 (2d Cir. Aug. 14, 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Application of a Child with a , Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]; but see Mr. P. v. Newington Bd. of Educ., 2008 WL 4509089, at * 10 (2d. Cir. Oct. 9, 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE); Application of the Bd. of Educ., Appeal No. 08-060; Application of the Bd. of Educ., Appeal No. 06-074.

The parents seek an unspecified award of compensatory education services, specifically services, to address the DOE’s failure to timely identify as a students. The parents cited to a decision of the NYS Office of State Review upholding an Impartial Hearing Officer’s award of compensatory education absence proof in the record to a specific form of relief. See Application of the Bd. of Educ., Appeal No. 12-135, pgs. 21-

22. In the present matter, there is no evidence in the record supporting a specific level of compensatory education. However and as the DOE conceded it failed to offer the student I am constrained to find that the in this instance failed to timely evaluate and classify

Turning to March 9, 2012 status report, was recommended to receive one period a day of in addition to attending in a school instruction across the curriculum. See P-D at 27. This recommendation was made after Ms. , a , had been working with . See P-D at 26-27. Ms. described ’s progress at school over the period in which she received being greatly .

In comparison, ’s – wrote that had ” since she began working with a See P-D at 25. Ms. also noted ’s progress, the student continued and believed that would likely fail to meet appropriate without , both in and outside the classroom. Id.

By way of comparison, ’s most recent progress report describes the student as working at an level with support in as of February 2013. See P-S at 4. Additionally, her . Id. at 6. As discussed above, has in her unilateral setting. And while a failure of a district to timely identify a student may very well give rise to an education, I am similarly the hearing officer referred to in crafting an appropriate award, especially in light of the subsequent by ’s attendance at her unilateral placement.

Similarly, the CSE recommended the student receive the form of in its 20122013 IEP. See D-1. Had the timely classified the student, she would have received this service as well.

Had the DOE timely classified , she most certainly would have received during her year. And since the DOE declined to present any , . Therefore and using the CSE’s proposed 2012-2013 IEP as a guide, I award the student a consisting ,3 all of which is to be provided by the DOE by approved private provider either after school or

Now, therefore, it is hereby

ORDERED that the DOE conceded that it failed to offer the student for the 2012-2013 school year; and it is further

ORDERED that the DOE shall, within fifteen days of submission to the DOE by the parent of proof of actual payment of ’s tuition costs to the for the 2012-2013 school year, reimburse the parent for any tuition paid in a sum not to exceed ; and it is further

ORDERED that the DOE shall provide the student with compensatory education in the form of Dated: August 22, 2013

____________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TM:mv

Based on the CSE’s recommendation of five periods of small group ELA SETTS service. See D-1 at 6.

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

PARENTS

A Impartial Hearing Request and Proof of Service and Filing 11/20/2012 14 pgs. B Letter to and proof of transmission 8/16/2012 3 pgs. C Letter to and proof of transmission 7/11/2012 4 pgs. D Letter to requesting a CSE meeting and transmission , letter from , and letter from with proof of

Transmission 4/3/2012 28 pgs. E Letter to transmitting evaluation of visual and perceptual development with proof of transmission 7/11/2012 8 pgs. F 2011-12 Report Card --- 4 pgs. G 6/21/2012 6 pgs. H Classroom Observation 5/7/2012 2 pgs. I Vision Report 5/22/2012 3 pgs. J Information Materials undated 3 pgs. K Attendance Report 11/16/2012 1 pg. L Affidavit 11/9/2012 1 pg. M Weekly Schedule 2012-13 1 pg. N Enrollment Contract 2012-13 2 pgs. O Attendance Report 1/22/2013 1 pg. P Attendance Report 2/1/2013 1 pg. Q Affidavit 1/22/2013 1 pg. R informational package undated 16 pgs. S mid-year report 2012-13 24 pgs. T omit U omit V Cancelled Checks various 3 pgs.

DISTRICT

1 IEP 6/21/2012 12 pgs.

1 In that the DOE conceded Prong I in the instant hearing, I am treating those facts as alleged by the family in their demand for due process as true absent any testimony or evidence offered by the DOE to the contrary.

2 References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”.