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 11, 2013

April 9, 2013

April 24, 2013

May 21, 2013

Actual Record Closed Date: August 8, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

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

Esq. Attorney — Parents

Mother — Parents

Teacher (via telephone) School — Parents

District Representative Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2013

Esq. Attorney — Parents

Mother — Parents

District Representative Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2013

Esq. Attorney — Parents

District Representative Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

Esq. Attorney — Parents

District Representative Region — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of . for the 2012-2013 school year. The hearing was convened at the written request of ’s parent (the “Parent”) by letter dated December 7, 2012. (Exhibit A) Hearings were held on March 11, 2013, April 9, 2013, April 24, 2013, and May 21, 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 45-day timeline 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

is a -year-old girl who has been classified by the DOE’s (“ ”) as a student with a . The convened on February 7, 2012, to develop an Individualized Education Plan (“IEP”) for for the 2012-2013 school year. In the IEP created on that date, the recommended placement in a “ ” with a staffing ratio, along with the related service of and in a group per week. (Exhibit B) A “Final Notice of Recommendation: Annual Review or Reevaluation,” dated June 8, 2012, was sent to the Parent designating the placement for the 2012-2013 school year as “ .” (Exhibit C)

By letter dated August 22, 2012, the Parent, through her attorney, notified the DOE of her disagreement with the program and placement offered to , her assertion that the DOE failed to offer a Free and Appropriate Public Education (“FAPE”), and her intention to unilaterally place at School (“ ”) and to seek tuition reimbursement from the DOE. (Exhibit I) By letter dated October 28, 2012, the Parent provided a detailed explanation of the basis for the rejection of the recommended program, reiterated her assertion that the DOE failed to offer a FAPE to for the 2012-2013 school year, and confirmed placement at . (Exhibit J) Finally, by letter dated December 7, 2012, the Parent requested this impartial hearing. (Exhibit A)

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. 4) Therefore, the DOE did not call any witnesses to offer direct testimony. Additionally, the DOE did not call any witnesses to rebut any of the testimony presented to support the Parent’s case. (Tr. 8)

THE PARENTS’ CASE

has worked at since its inception approximately years ago. He is certified by New York State as a school and a teacher. At , Mr. teaches several courses. In addition, he serves as a in the school’s Program, teaching various courses to students in the school’s - program. For the 2012-2013 school year, those courses include and . Mr. is also a part of the school’s School-Based Support Team. In that role, he coordinates with other support staff including and school . He conducts observations, consults with teachers, and modifies methods and goals as needed. (Tr. 12-14)

Mr. explained that the school has approximately students. The school’s Program is the program with - classes that are very and have a modified curriculum. Multi-modal approaches are used, including , , , and , as well as . The classes are taught at a pace and are tailored to each individual student’s needs. (Tr. 16) The tools used include and down tasks into goals. (Tr. 28) Mr. described as a school focused on the individual needs of the students and the goals of the family and the child. The curriculum is tailored to the state education requirements, along with an “ ” which encourages crossover between disciplines and subject areas. The students have input into the process, and their , , and can impact the focus of the course. If a student in the Program demonstrates strength in a particular subject, they may be for that subject for , , - , and - . If in particular areas, those students continue to have the full support of the Program and any accommodations or modifications they may need. (Tr. 14-16)

uses continual curriculum assessments to and measure progress. There are also teacher-based used. has passed several New York State which is also indicative of her progress. (Tr. 30-31)

Mr. testified that is in classes as well as - classes. He reviewed her class schedule and explained that her classes include , , , and “Shakespeare and Playwrights.” (Tr. 22-25; Exhibit F)) History is her class, with approximately students. There is a lot of group work in the class. In addition to other supports receives, she can work on her writing assignments for history class with her writing teacher as well. Although ’s “Shakespeare and Playwrights” class is a class, the teacher is a teacher and a school . He makes all the appropriate accommodations for The scientific research course is a class of less than students. (Tr. 32-34) ’s classes range from class sizes of students (art) to students (writing) to students (math-finance). ’s strong work ethic, desire to move ahead, and growth, have allowed her to go into the courses with supports. It is a constantly evolving process. (Tr. 19- 21) In addition to the in-class supports she receives in all classes; as a student, has a “Planning and Organization” period at the end of every day, which is with her teacher. During that period, the focus is on , , and , as well as the books they need for the next day. often stays after school and seeks out her teachers and school for additional help. (Tr. 25- 26; 35)

The school has full faculty meetings every week which begin with a Program component. Teachers can express concerns about a particular project, social interaction, or behavior. After the general meeting, there is time allotted to further discuss particular students in a more in depth discussion among those involved. Many faculty members have lunch together and regularly discuss their students. They are always talking about the students, both formally and informally. There is a lot of communication and coordination among the faculty. (Tr. 31-32)

Mr. explained that continues to with , although she is making . Expressive writing and organization are for her. She has learned approaches to compensate for her in those areas. He described some of the techniques she has been taught which have allowed her to progress in those areas, which affect all subjects. (Tr. 22-24)

In Mr. ’s opinion, ’s peer group for the 2012-2013 school year is appropriate for her. (Tr. 26) Mr. confirmed that, in his opinion, and from meeting with ’s teachers, she is absolutely making progress and is on track for graduation. She was to go into the classes and is excited to make her plans for . (Tr. 27-28) ’s first demonstrates that she is doing well and has absolutely made growth during the 2012-2013 school year thus far. Her indicates grades of a “ ” in two courses, an “ ” in one course, an “ ” in three courses, and an “ ” in two courses. (Tr. 36-37; Exhibit G)

is ’s mother. She described ’s with herself, , and . She has some with as well. Ms. . chose based on the environment, class sizes, and accessibility of the teachers, who mostly have degrees in school and as . Therefore, they are trained to work with students who have learning differences. The teachers are also available to provide with extra help before and after school. (Tr. 54-55) Ms . explained that attended school from the through grades. Ms. felt that was “ ” but was not at the level where she should be. After visiting ’s zoned school prior to enrolling, Ms. determined that it was not appropriate for began attending in grade and has attended through the current school year for grade. In the 2012-2013 school year, has achieved a GPA of . and has been to all of the to which she . She has also been awarded merit scholarships. She now in herself, has become more , and, according to her teachers, she is one of the hardest working students they have seen. She received an award from a for her academic performance despite her learning differences. She has learned to for herself. She has taken courses that are not required for students and done well. is respected by her peers and teachers. She has done very well overall. (Tr. 56-59)

Ms. confirmed that the total tuition amount for for the 2012-2013 school year is $39,025. She also confirmed that, as of the date of her testimony, April 9, 2013, $32,200 had already been paid and that the remaining balance of $6,825 would be paid. (Exhibit K, pages 1, 3, 4) She explained that her home, in , , was badly damaged in the fall of 2012 by Hurricane Sandy. Therefore, she had not yet paid the tuition in full yet, but has a commitment to do so. Ms. explained that she signed a letter dated September 6, 2012, regarding the manner in which any payment from the DOE would be paid directly to . (Exhibit K, page 2) (Tr. 62-63)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities 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 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 Parent’s case.

The Parent has the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, 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 special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, 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 Parent met ’s needs for the 20122013 school year. It has been persuasively established by Mr. and Ms. , as the testimony cited herein documents, that placement at , with the support of the Program and the mainstreaming opportunities, is 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 her individual needs. In fact, made meaningful progress through her participation in the program. ’s class environment provided opportunities for the tailoring of material and strategies to meet ’s individual needs. The subject classes, both the - classes and the classes, allow for advancement based on progress. Even when participating in the classes, has the support of the Program and the modifications and accommodations she requires. The faculty is trained and experienced as educators of students with . In addition, the support of the and period, and constant availability of the teachers and other support staff to , provided her with the assistance and reinforcement she needs in her . All of the faculty and staff coordinated their efforts to support

The DOE has not presented any argument challenging the appropriateness of the Parent’s unilateral placement of at for the 2012-2013 school year. I find that the Parent has 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 Parent. The record reflects the Parent’s cooperation with the , and in the IEP process. It further reflects the Parent’s repeated notifications to the DOE that it failed to offer a FAPE to There is no evidence of any response by the DOE. The DOE failed in its obligations to and concedes such failure.

There was much discussion during the course of the impartial hearing regarding the documentation submitted as evidence of tuition payment on behalf of to for the 2012-2013 school year.^[1] Exhibit K, page 1, shows that two payments were made for the 2012-2013 tuition as of the date of the affidavit, March 5, 2013. Those two payments, attached as Exhibit K, pages 3 and 4, were for $26,000 and $6,000, paid by the Law Offices of , on September 18, 2012 (check number 2369), and October 17, 2012 (check number 2395), respectively.

The payments made by the Law Offices of were taken from funds paid to Mr. , as counsel for Ms. , by the DOE, representing settlements of impartial hearings from previous school years. Therefore, the $26,000, paid to for the 2012-2013 school year, as noted above, was paid out of funds received by the DOE, as documented in Exhibits M, O, and P. Exhibit P is a Stipulation of Settlement and Discontinuance for Case No. 136273 related to the 2011-2012 school year, signed on July 13, 2012. The total payment pursuant to the Stipulation is $31,000. Exhibit O is a City of New York Itemized Payment Statement showing a payment made to the Law Offices of in the total amount of $40,000 on August 28, 2012, and referencing that, of the total amount, $31,000 was for Case No. . Exhibit M is a letter dated September 18, 2012, to the Parent from Mr. , notifying the Parent that the reimbursement amount of $31,000 had been received by Mr. from the DOE pursuant to the Stipulation for the 2011-2012 school year. He explained that, after deducting for outstanding legal fees, the balance of $26,000 was then paid by him to with check number 2369, dated September 18, 2012. Again, that is the first check noted in the affidavit for the 2012-2013 school year.

Exhibit X is a City of New York Itemized Payment Statement showing a payment made to the Law Offices of on October 9, 2012, and referencing that, of the total amount, which is illegible, $6,200 was for Case No. 125165. The parties stipulated that the case number is related to the 2009-2010 school year. (Tr. 122) Exhibit L, page 4, is a letter dated October 19, 2012, to the Parent from Mr. , notifying the Parent that the reimbursement amount of $6,200 had been received by Mr. from the DOE pursuant to the settlement of the case involving the 2009-2010 school year. He explained that the $6,200 was then paid by him to with check number 2395, dated October 17, 2012. Again, that is the second check noted in the affidavit for the 2012-2013 school year.

The DOE acknowledged that the manner in which payments were made on behalf of the Parent by Mr. ’s office for the 2012-2013 school year was “definitely substantiated.” (Tr. 127-128)

The unpaid balance of $6,825, reflected in the affidavit remains unpaid.

The DOE shall reimburse the Parent for the tuition paid on behalf of to , for the 2012-2013 school year, in the total amount of $32,200. Reimbursement shall be made to the Law Offices of . The documentation in evidence has demonstrated that the DOE has historically had a practice of making payments in this manner to Mr. ’s law offices, as counsel for the Parent. The remaining amount of tuition, of $6,825, shall be either reimbursed upon proof of payment, or paid directly to School if it remains unpaid as of the date of this order. Dated: August 23, 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 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 Exhibits

A. , 12/7/12, 3 pages

B. , 2/7/12, 14 pages

C. , 6/8/12, 1 page

D. , 9/23/12, 1 page

E. , undated, 1 page

F. , 2012-2013, 1 page

G. , 2012-2013, 1 page

H. , 2012-2013, 1 page

I. , 8/22/12, 4 pages

J. , 10/28/12, 1 page

K. , and , various dates,

5 pages

L. between Mr. and Parent, various dates, 5 pages

M. , 9/18/12, 1 page

N. , 9/6/12, 1 page

O. , 8/28/12, 1 page

P. 2011-2012 , 7/13/12, 5 pages

Q. 2011-2012 , 5/21/12, 1 page

R. 2011-2012 , various dates, 3 pages

S. , 9/21/12, 2 pages

T. , 9/4/12, 1 page

U. 2010-2011 , 7/13/12, 5 pages

V. 2010-2011 , 5/21/12, 1 page

W. 2010-2011 , various dates, 11 pages

X. , 10/9/12, 1 page

Footnotes

[1] During the course of this impartial hearing, the DOE did not object to the admission of any documents offered by the Parent into evidence.