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: January 4, 2013

February 12, 2013

Actual Record Closed Date: March 2, 2013

Hearing Officer: Leah Botwinik Almeleh, Esq.

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

ESQ., Attorney, Law Offices of — Student

LLP (Via Telephone) — Student

DR., Committee on Special Education — DOE

Chairperson's Designee (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12,

2013

Attorney — Student

Parents

Director Learning Support (Via Telephone) — Student

Special Education Teacher (Via Telephone) — Student

Occupational Therapist (Via Telephone) — Student

DR , CHAIRPERSON DESIGNEE, CSE

PROCEDURAL CONTEXT

On November 30, 2012 I was appointed to hear the matter of . versus the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Improvement Act (IDEAI), 20 U.S.C. Section 1415 (f)(1). On January 4, 2013 a pre-hearing conference was held on the record and, in furtherance thereof, a hearing on the merits was scheduled for February 2, 2012. On this day, the Department conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] and, 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) as well as Burlington Sch. Comm., supra, the Parents maintain that the School (hereinafter “IDEAL”), 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.

. is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified as “speech and language impaired” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. On February 2, 2013 the proceedings were concluded and the timeline duly extended. A list of persons in attendance and of evidence is appended hereto.

THE SCHOOL DISTRICT’S CASE

No witnesses appeared on behalf of the Department nor was any evidence admitted into the record.

THE PARENT’S CASE

is currently the Director of Learning at the . His background includes extensive credentials in special education, assessment, advocacy and training. Tr. at 18-20. Mr. noted that IDEAL is a small private school offering special education services within an inclusive environment. Its curriculum is multi-sensory and integrated across all educational disciplines. Each classroom is staffed by a full-time general educator as well as a learning specialist at a minimum. Tr. at 23. .’s classroom has 18 students, four of whom participate in the program, the special education component at . The classroom is staffed by two full-time certified teachers (general and special education), one teaching associate and an additional full-time teacher who provides dedicated mobility support for a student in the room. Related services are provided on site. Tr. at 37.

During the 2012-2013 school year, approximately 106 students were enrolled at . Of these, an estimated one third had special needs and received services through ’s program. No more than four children are assigned to each mainstream classroom. Mr. described as a small, nurturing environment in which a great deal of individual attention, academic and emotional, is offered to its students in the form of educational tutorials, individualized attention, related services, testing modifications and accommodations. Personnel receive weekly in-service training in addition to peer mentoring and professional development offered through outside consultants and workshops. Most of ’s teachers hold or are in the process of obtaining their Master’s degrees in education. Tr. at 23. The witness noted that the school has also retained the services of an inclusion expert who has observed ’s classrooms and conducted workshops on the integrated model in education.

The witness indicated that, as an administrator, he sees . daily and has a special relationship with the student. He noted that . is to take on new challenges. As such, he is able to serve as a peer model for the school’s typically developing students. In contrast, benefits from their as the typically developing students may generate more sophisticated ideas, engage in appropriate conversations and demonstrate when negotiating their environment. Mr. noted that . is very motivated to succeed and takes great pride in his accomplishments, often sharing his work with others. The student additionally exhibits strong text skills and has developed a repertoire of sight words which enable him to read leveled materials. Tr. at 32-33. .’s use of sight words is additionally facilitating the development of phonetic skills in reading. The witness noted that although the child is generally very social, he requires assistance remaining on-topic and sustaining a reciprocal conversation. Tr. at 35. In math, . continues to correspondence. To facilitate greater skill in this area ’s teachers provide individualized assistance, differentiating the curriculum and implementing skip counting exercises to reinforce his recall of numbers. Nevertheless, math remains one of .’s weaknesses. The witness noted that the child additionally continues to demonstrate deficits in fine motor strength and coordination. As a result, and remains

Although . participates in a homogeneous reading group of two, the school’s ability to group students “fluidly” enables . to participate in educational strategy sub-groups which may offer skill reinforcement, differentiated instruction or enrichment. Tr. at 38. During these times, may move easily between whole group, small group and individualized instruction depending upon his strengths and weaknesses. The assistance during class presentations is particularly valuable as this immediacy enables staff to monitor ’s understanding of core content areas. In this manner, issues related to comprehension can be identified and addressed before they become overwhelming. Tr. at 39-40.

The witness further described the emphasis places upon routine, visual schedules and consistency. By reinforcing predictable practices within the school, Mr. testified that the children feel more secure and comfortable with the frequent transitions incorporated into the school day. Tr. at 40-41. Significantly, the witness described ’s use of a Carry-Over Matrix which ensures that skills targeted in one subject area are generalized and reinforced in another. Progress is measured by both on-going teacher assessment and monthly team conferences.

In sum, the witness opined that s small school size, use of positive peer models and nurturing environment contributed to its appropriateness as an education setting for Tr. at

54. He further added, “. . . because the low student-teacher ratio, with the positive peer models, with also the model of the electives where he is not missing any whole class instruction, the academic instruction and the differentiation we had determined that since E.B. had last year, that he was moving forward.” Tr. at 46. Beyond this, . benefits from the school’s ability to accommodate his need for sensory breaks, instructional modifications, repetition, consistent school-wide classroom management techniques and supports such as graphic organizers and “tens frames.” Tr. at 47-48.

is licensed by New York State as a special education teacher. Tr. at 56-57. She presently serves as ’s first grade special education teacher. Ms. has generally know since his enrollment at but was specifically responsible for him during the 2012-2013 school year as one of her special education students in the program.

The witness noted that . is able to manage a general education curriculum if instructional accommodations and modifications are implemented. As such, material must be presented in small bits so that he can access it more readily. Tr. at 72. additionally benefits from the use of therapy aides such as a slant board for writing and a “hippity hop” which enables to refocus during sensory breaks. Tr. at 105.

. utilizes a guided reading program published by in which leveled reading materials are offered. In this manner, the entire class is able to cover the same material which is tailored to each child’s individual abilities. She testified that . is able to follow the mainstream curriculum and is an eager participant in classroom discussion. He does, however, require a high pupil: personnel ratio as, “ . is someone who can work independently for a short period of time, but also needs someone to start the lesson with him and then move away perhaps to help someone else, and then come back to check in . . . It also provides us the ability to break down the curriculum so that . is able to access all of the materials and produce the work as anyone else would.” Tr. at 75-76; Exh. H.

The witness further noted that . is responsive to the various visual supports which facilitate his understanding of educational concepts, particularly in the area of math calculations. This has to meet the same New York State benchmarks set for his peers. The child participates in the curriculum which is modified for . with the use of tens frames, dimensional pattern blocks, sequenced repetition and modified goals for time measurement. Tr. at 93. Similarly, Ms. has been able to modify the reading curriculum for the child. Although his peers utilize the Recipe for Reading curriculum, Ms observed that . was initially unable to learn phonetically. As a result, and two other children with special needs received the Matching, Selecting and Naming program, a protocol which furnishes non-readers with fifty sight words as a predicate to their participation in the Recipe for Reading phonetically-based program. The witness noted that although has not quite mastered all fifty sight words, he is beginning to demonstrate emergent phonetic skills by recognizing and identifying sounds within larger words, a skill he had not exhibited previously. Tr. at 80. Nevertheless, .’s mastery of approximately 40 sight words has enhanced his ability to access the program by sequencing, planning and actually building sentences with the words he has learned. As a result, Ms. opined that has improved as he is more conscious of grammatical structure and sentence completion. His ability to generate ideas has similarly accelerated as his reading vocabulary has grown. Tr. at 87-88.

Ms. additionally testified that has made “incredible” progress with his handwriting. He is now able to write 90 % of his words using lower case letters. Although many of .’s skills remain at a kindergarten level, they have progressed several months within the year. He is, however, more independent and creative with his written expression. Tr. at 89. On a social level, the witness observed that the student is “definitely a leader,” has many friends in class and approaches his work with enthusiasm. He responds well to the peer model and is able to benefit from the educational example set by his typically developing classmates during class instruction, recess and group projects. Tr. at 74-76. Significantly, Ms. opined that ’s skills are generalized and reinforced through the school’s use of the Carry-Over Matrix. Tr. at 103-

104. Lastly, the child participates in a class-wide behavior plan as well as an individualized behavior plan directed towards maintaining postural control. Tr. at 109.

Ms. additionally participated in the development of .’s goals for the 2012-2013 school year. She noted that these goals were prepared collaboratively with the child’s related service providers in consideration of the benchmarks promulgated by New York State and individual assessments. Extensive progress reports are developed semi-annually based upon several standardized measures as well as teacher report. Each child is discussed weekly by the immediate classroom team and monthly with all educational and related service providers.

is the child’s . She is presently employed in the program and has provided services to . for four years. Tr. at 116-117. The witness indicated that she is working with . on various handwriting goals, including pencil grip, finger spacing and endurance. She additionally addresses the child’s . As ’s upper body strength has improved and he , the child is able to attend to class more productively. Moreover, .’s handwriting is now at grade level with his peers, an achievement which was not an expectation for him this year. Tr. at 120. At times, . additionally works in dyad. In this manner, Ms. has worked collaboratively with the child’s to reinforce emergent , enhance articulation goals and develop m ore sophisticated . Tr. at 122-125. Although the child has exceeded many goal expectations, he exhibits and . In sum, Ms. opined that the program and its peer modeling opportunities through integrated instruction were appropriate for E.B. Tr. at 132-133.

Finally, Ms. . testified. She provided a brief educational history of her son, a child diagnosed with . . began services at three months of age and subsequently transitioned to the ”) at age two. The child remained at until , at which time he transferred to . She noted that, although he was an , he nevertheless demonstrated deficits in all functional areas. , but is assigned to an integrated class in which he struggles. Although his are relatively strong, he continues to exhibit global delays, academically, physically and socially. Nevertheless, she testified that benefits from the inclusion model and with appropriate educational supports, he is able to thrive with a mainstream program. Tr. at 145-146. She specifically noted that as her son’s literacy skills have progressed dramatically, this has had a positive impact upon his selfesteem and confidence. . is now able to marginalize his differences by reinforcing his similarities (i.e. reading books, having play dates, using technology, doing homework) with typically developing peers, including his sister. In sum, she testified that she is very pleased by .’s academic progress and opined was ” for her son. Tr. at 153.

In January 2012, . was invited to return to . At this time, the Parent testified that she executed an enrollment contract for $55, 000 to ensure that . would have an academic placement during the 2012-2013 school year. Ms. . noted that this was particularly important as, during the previous school year, the Department had not furnished a placement. Tr. at 154.

THE DEPARTMENT OF EDUCATION’S POSITION

Notwithstanding its concession of prong one of Burlington, supra, the Department of Education maintains that the Parents’ educational program at IDEAL is inappropriate. Tr. at 12.

THE PARENT’S 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 E.B. with a free and appropriate public education. Consistent with their argument, the Parents contend that IDEAL constituted an appropriate placement for their son during the 2012-2013 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

DISCUSSION

The matter sub judice presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). As the Department has conceded Burlington’s prong one, the only issue at bar is the appropriateness of IDEAL. Was IDEAL an appropriate educational placement for . during the 2012-2013 school year?

Specifically, 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 academic program offered correlates well with the student’s academic needs, as identified by the testimony and evidence submitted. Clearly, the school offers a small, structured program in which E.B. can participate with similarly profiled students while benefitting from an integrated environment. Director of Learning, testified that students receive a great deal of individualized attention in the form of educational tutorials, individualized attention, related services, testing modifications and accommodations. The student additionally receives a modified curriculum with differentiated instruction, enabling him to access a standardized first grade core curriculum and to achieve benchmarks promulgated by New York State.

It is clear that ’s small school size, availability of positive typically developing peer models and nurturing environment have contributed to its appropriateness as an educational setting for E.B. Tr. at 54. Beyond this, the use of an enriched student-teacher ratio along with an integrated environment in which the child can serve as a positive peer model as well as benefit from the positive modeling of others, is a strong factor successful performance at school. The use of schedule blocks which offer related services during “electives” ensures does not miss any whole class instruction and remains a fully incorporated member of the class. . benefits from the school’s ability to accommodate his need for sensory breaks, instructional modifications, repetition, consistent school-wide classroom management techniques and educational supports.

.’s experience with occupational therapy and the Carry-Over protocol underscores the importance of inter-disciplinary collaboration toward the goals of generalizing and reinforcing skills in all environments. In this manner, occupational therapy sessions have been used to reinforce speech and language skills previously acquired in speech therapy. Consequently, Ms. s occupational therapy dyads additionally support and reinforce emergent pragmatic speech, articulation goals and greater conversational reciprocity. Tr. at 122-125. Given all of the above, I find that the program at is reasonably calculated to ensure .’s educational progress and, indeed, under the school’s guidance, . has even surpassed expectations in terms of handwriting and literacy goals. The student has made significant and meaningful improvement at an opinion expressed by both school personnel and the Parent, in the absence of any controverting Department of Education testimony. Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2012-2013 school year?

There is no evidence to suggest that the Parent has not met her prong three burden and, to the contrary, the undisputed testimony indicates that the Parent participated cooperatively in Committees on Special Education (CSE) meetings and duly placed the CSE on notice that she wished to seek reimbursement. Under these circumstances, I do not believe there are any equitable considerations which militate against supporting the Parent’s claim to reimbursement.

CONCLUSION

The Parents’ request for relief is granted in full for the 2012-2013 school year. Wherefore, it is hereby ordered that:

Upon due submission of proof of payment along with an affidavit from memorializing the Parent’s contractual obligations .’s continued attendance at , the Department of Education shall reimburse the Parent for tuition expenses at for the 2012-2013 school year. Dated: March 4, 2013

___________________________

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer LBA;mv

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

A Notice of Unilateral Placement, Dated 8/22/12, 2 pages

B Exhibit B, Impartial Hearing Request, dated 11/29/12, 6 pages

C School Description, undated, 5 pages

D 2012-2013 Class Scheduled, undated, 1 page document

E School Enrollment Contract, dated 4/25/12, 1 page

F End of Year 2011-2012 Progress Report, dated 2011-2012, 22pages

G Mid-Year 2012-2013 Progress Report, dated 2012-2013, 24 pages

H Learning Specialist Report, dated January 13, 2 pages

I Goal Carryover Matrix, dated 2/6/13, 1 page