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 4, 2013

April 22, 2013

Actual Record Closed Date: May 8, 2013

Hearing Officer: Lynn Almeleh, Esq.

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

Attorney — Student

Parents

Teacher (Via Telephone) — Student

DR., CSE Chairperson's Designee — DOE

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

Attorney — Student

Parent/Mother — Student

DR., CSE Chairperson’s Designee — DOE

PROCEDURAL CONTEXT

By letter dated November 29, 2012, I was appointed to hear the matter of Stella H. versus the New York City Department of Education (hereinafter the “Department”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). On January 4, 2013 a pre-hearing conference was conducted on the record and, as a result thereof, hearing on the merits was set for March 4, 2013. On this day and immediately prior to the commencement of the within action, the Department of Education conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As a result, the Parents maintained the burden of proof in the matter, sub judice, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. On April 22, 2012, hearings were concluded and the timeline duly extended.

The Parents maintain that the (hereinafter “ ”), a non-public school placement, is both suitable and appropriate for their child. Exh. A. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief. A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

No witnesses appeared. Other than one joint exhibit, no evidence was entered on behalf of the Department of Education.

THE PARENTS’ CASE

testified as lead witness on behalf of the Parents. Ms. .’s general education teacher at . The witness holds a Master’s degree in first through sixth grade special and general education and is certified to teach both in New York State. Ms. currently teaches and, as such, is responsible for implementing and differentiating the curriculum for in math, reading, writing and social studies. She additionally coordinates ’s academic instruction with other specialists who interface with the child in school and communicates with parents on an on-going basis. She is additionally trained in the Orton-Gillingham methodology. She noted is a school for bright children who required individualized instruction due to . Tr. at 18-19. Classes are ungraded and mainstreaming opportunities are afforded through field trips and after-school programming.

Ms. noted that each homeroom class has eleven children and is staffed by one head teacher and an assistant teacher. Notwithstanding this, classes in core content areas such as reading and math are much smaller. There are five children .’s math class and six in her reading class. Tr. at 20. Students are grouped according to “their needs, specifically in terms of their abilities, if there are any gaps in their understanding or any particular strengths. They are also grouped with regard to the pace. Some groups move more quickly than others. Some groups spend more time on different concepts, and also the children's learning styles are considered.” Tr. at 20-21. In this manner, a child with but high comprehension would be paired with similar children. has been placed in a class with other year olds.

The witness described as a sweet girl who is well-liked by her peers and who is motivated to succeed. Nevertheless, she requires a due to her and review. She noted that the student instruction in which material can be broken down and even further. is a concrete learner and requires the use of visuals such as manipulatives, hands-on experiences, role-playing and multi-sensory projects to acquire new information. When necessary, Orton Gillingham techniques are implemented.

. is assessed daily through class work, homework and class participation. At the beginning of the year, a QRI assessment is done in order to more accurately facilitate academic groupings. Tr. at 24. She receives related services through a language specialist who pushes into the classroom four times a week and additionally receives language therapy once per week within the context of a conversational dyad of two.

Although . had been assigned to a small reading class of six, Ms. noted that the child frequently required individual instruction, adding that even within the context of a small class, the student needed additional chunking of academic materials and slower pacing. Nevertheless, the witness opined that . had made slow but steady progress during the year, particularly in the abstract concepts of perspective and character assessment. Tr. at 30. Nevertheless, although . has demonstrated greater facility with higher order concepts, her reading fluency remains delayed. . continues to exhibit significant deficits in decoding and spelling multisyllabic words. Although daily dictation drills take place, this remains an area of significant deficit . who requires individualized instruction in this area. Tr. at 34. She continues to require a reading tracker for fluency and exhibits ongoing deficits in decoding. In writing, the student is receiving instruction in the use of conjunctions as a means of developing a clearer, more expository writing style.

Although Ms. Brandeis observed that the child had made progress, she could not ascribe any grade levels to this, adding .’s performance is highly variable within every subject area. Tr. at 45-47. Moreover, as does not follow the New York State curriculum, she could not measure the student’s success along these parameters, a situation exacerbated non-grading policy. Nevertheless, within the student’s profile of abilities, her work product, class participation, current and prior homework, and conversations with other teachers, Ms. indicated that . had demonstrated progress. Tr. at 56.

In math, has demonstrated significantly greater ability and confidence in skipcounting. In furtherance thereof, she has learned fact strategies for addition and subtraction which have facilitated her ability to work with multi-digit problems and regrouping. The witness added that math program and noted that this has facilitated her understanding of mathematical concepts. She testified, “She's learning mental math, adding decades, which is something that she was not able to do earlier in the year. She's also beginning to learn the concept of multiplication and she's understanding that because of the materials, the concrete materials . . .” Tr. at 32-33; Joint Exh. 1.

Lastly, the Parent testified. She noted . has a which is expressed through . Because she becomes , Ms. opined that her daughter required a small classroom with an enriched staffing ratio, precisely the environment in which . participates. In furtherance thereof, she testified that receives considerable individualized attention for all core subjects at She noted, in particular, that . receives speech therapy and has begun to apply the strategies she is being taught in order to access information. Similarly, . is more confident in her ability to succeed academically. As a result, . has been able to develop social relationships more easily. Tr. at 80. Although grade levels are not utilized , Ms. described her daughter’s progress, both emotionally and educationally, from last year stating, “. . . from last year to this year, it’s night and day. She’s just doing incredibly well.” Tr. at 67.

Finally, the Parent testified that, upon receiving a Final Notice of Recommendation, she immediately attempted to visit , the recommended site. Exh. C. After several unanswered phone calls, Ms went directly to the site. Upon her arrival, she was advised by both the Parent Coordinator and Principal that the school did not have such a program. Tr. at 68-69. On April 4, 2012, she wrote to the CSE advising them that the recommended program did not exist at the recommended site. Exh. J. When the Department did not respond to her concerns, Ms. . advised the CSE that she would be placing . in a non-public school setting. Exh. I.

THE PARENTS’ POSITION

The parent, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] asserts that the Department of Education stands in abrogation of its duty to provide . with a free and appropriate public education. In furtherance thereof, counsel maintains that the educational program at is appropriate for the child.

THE DEPARTMENT OF EDUCATION’S POSITION

Notwithstanding its concession of prong one of Burlington, supra, the Department of Education maintains that the Parent’s educational program at is inappropriate.

DISCUSSION

As the Department has conceded prong one of Burlington, supra, there is no need to address the Department’s burden of proof with regard to its placement. Therefore, I will immediately consider appropriateness. In furtherance thereof, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (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; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the program offered correlates well with the student’s functional needs, as identified by ’s teacher, an individual who works with her daily and is intimately familiar with her needs. The program provides opportunities for intense intervention so that materials may be differentiated substantively and presented in smaller “chunks” at a slower pace. Materials are constantly repeated, reviewed and previewed so that ability to absorb and retain new materials is facilitated. Similarly, academic groupings are created fluidly so . may be placed more appropriately within core content areas depending upon her need. As the School focuses upon meeting the needs of students who exhibit and . is able to benefit from the intense push-in services offered as well as its use of conversational dyads for appropriately matched students. Teacher noted that had additionally benefitted from the use of in math as well as to decoding, reading comprehension, spelling and writing. This includes the use of Orton-Gillingham and Preventing Academic Failure when necessary. Finally, the student participates with peers whose functional profiles are consistent with her own although mainstreaming opportunities are available.

“[U]ltimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In this respect, Ms. testimony regarding the student’s progress is credible and uncontroverted. Tr. at 56. Ultimately, I find that the student made significant and meaningful improvement , an opinion expressed by school personnel, in the absence of any controverting Department of Education testimony.

Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2012- 2013 School Year?

When asked to visit the recommended placement, Ms. . did so, promptly advising the Department as to the absence of programming at the recommended site. In the absence of any response from the CSE, the Parent duly placed the CSE on notice that she wished to seek reimbursement. The record is silent regarding any lack of cooperation on behalf of Ms. Parent. Under these circumstances, I do not believe there are any equitable considerations which militate against supporting the Parent’s claim to reimbursement.

Finally, a review of the Parent’s income tax returns and social security benefit statements for 2010 clearly establish the level of financial need contemplated by Connors

v. Mills, 34 F.Supp 2d 795, (N.D. N.Y. 1998), supra, and the Parent is entitled to this remedy.

CONCLUSION

The Parent’s request for relief is granted in full for the 2012-2013 school year.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the Department of Education shall reimburse the Parent, upon due proof of payment, for the cost of tuition at the for the 2012-2013 school year.

The parent shall be deemed the prevailing party. Dated: May 9, 2013

LYNN BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA: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 THE RECORD

Parent Exhibits

A Parent’s IHR, 11/26/12, 3 pages

B IEP, 2/14/12, 13 pages

C Final Notice of Recommendation, 3/5/12, 2 pages

D Contract, 2/27/12, 4 pages

E School Program Description, N/A, 1 page

F Student’s Class Schedule, N/A, 1 page

G Students’ Attendance Record, N/A, 1 page

H Affidavit, 2/8/12, 1 page

I FAPE Letter, 8/22/12, 3 pages

J Parent’s Rejection Letter, 4/4/12,^[1] page

Joint Exhibits

Footnotes

[1] Progress Report, 2012-2013, 13 pages