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 5, 2013

April 17, 2013

April 30, 2013

May 8, 2013

Actual Record Closed Date: May 29, 2013

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2013

Attorney — Student

Attorney — DOE

Attorney — DOE

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

Attorney (Via Telephone) — Student

DOE Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2013

Attorney — Student

Parents

Psychologist (Via Telephone) — Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2013

Attorney — Student

Parents

DR., Psychologist (Via Telephone) — Student

Attorney — DOE

Attorney — DOE

By Complaint dated December 11, 2012, the matter of Saman R. came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The matter did not resolve through resolution. On January 25, 2013, a prehearing conference was held. There was no appearance by the parent, and the District represented that the case “would settle.” (IHO Exh. 1)

A hearing date was scheduled for January 30, 2013. An adjournment was requested by the District because of witness availability. There was no objection from the District. This application was granted.

Upon the application of the parent on the 25th of February, 2013, the decision date in this matter was ordered to be reset to June 21, 2012. The reason given was witness availability and due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. The parties were provided notice of this decision through email on February 25, 2013. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 2)

A new hearing date was held for March 5, 2013. The parties appeared at this date.

Upon the application of both parties on the 23th of March, 2013, the decision date in this matter was ordered to be reset to April 25, 2013. The reason given was witness availability and due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. The parties were provided notice of this decision through email on March 23, 2013. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 3)

Another hearing date was set for April 22, 2013. The District moved to adjourn because of witness availability. This application was granted.

Another hearing date was held on April 17, 2013.

Upon the application of both parties on the 25th of April, 2013, the decision date in this matter was ordered to be reset to May 24, 2013. The reason given was witness availability and due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. The parties were provided notice of this decision through email on April 25, 2013. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 4)

Another hearing date was held on April 30, 2013. A final hearing date was held on May 8, 2013.

Upon the application of both parties on the 22nd of May, 2013, the decision date in this matter was ordered to be reset to June 21, 2013. The reason given was the need for the IHO to review the briefs. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. The parties were provided notice of this decision through email on May 22, 2013. There was also no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District.(IHO Exh. 5)

The parties submitted briefs to this IHO after the close of business on May 28, 2013. (IHO Exhs. 6, 7)

FINDINGS OF FACT

The Student is a boy who is eligible to receive services as a student with a . (Exh. B)

The Student is estimated to be at the level in decoding and comprehension. (Exh. B) In terms of written expression, the Student is estimated to be at the grade level. (Exh. B) He has a particularly with writing. (53, 56-57, 59) He has a difficult time with , , . (Exh. B) He has a difficult time . (Exh. B) He . (Exh. B)

Testing as of September 2, 2012 revealed that the Student’s full scale IQ is (Exh.

C) are noted in reading fluency, coding. On the Woodcock-Johnson III, based on grade , the Student was at the percentile in broad reading, and his academic fluency was at the percentile. On the WRAML-2, the Student’s memory was at the percentile, and his visual memory was at the percentile. The evaluation indicates that the Student tends to work in a slow, deliberate manner. It indicates that the Student has difficult with writing. The assessment indicated that the Student has a significant language-based learning disability. It recommends extended time on tests and exams.

In terms of language difficulties, the Student has to work on word finding skills, needs verbal cues, graphic organizers, memory strategies. (Exh. D) He has difficulty . (56)

The Student also tends to .” (57)

The Student attended a private school in Manhattan for kindergarten and first grade. (Exh. C) Thereafter, the parents sought the , which the Student has attended since. (Exh. C)

At the for 2011-2012, the Student’s grades ranged from “ ,” with his best grades (“ ”) coming in effort in science, certain computer work. (Exh. F)

For the current school year, the parent signed a tuition contract with on February 8, 2012. (Exh. G)

The parent visited the placement and rejected the placement by letter dated September 14, 2012. (Exh. O)

The Student’s grades for 2012-2013 indicate satisfactory work either “consistently,” “frequently” or “sometimes.” (Exh. Q) The Student was consistent with homework and had good preparation for class, was well motivated. He did better in Math and Science than he did in Social Studies or Reading.

, the school provides classes with 12 or fewer students. (Exh. K) There are two teachers in the classroom. ( 125-126) Students receive small group instruction and direct instruction. (Exh. K) There are three periods of language arts a day, including reading, writing, language skills, and study skills. (Exh. K) Listening, speaking, reading and writing are all emphasized. (Exh. K) The staff is Orton-Gillingham trained and provides with “Preventing Academic Failure” program and the “Basic Writing Skills” program. (Exh. K) Students receive math daily, there is a science lab, social studies, physical education, library, art and gym. (Exh. K)

The school offers a multi-sensory, highly structured and sequenced program that is based on the Orton-Gillingham methodology. (Exh. R) Reading, writing and spelling are taught in the same lesson. Classes are grouped by grade level. (106) The Students are grouped homogeneously. (125) The school provides modeling, direct instruction, repetition. (96) Instructions are broken down. (181-182) The classrooms do not have distractions. (182) There is very little on the walls, and students are not allowed to wear striped shirts because it is distracting. (126)

In reading, they can work in a framework called “story grammar” and a framework called “story frames.” (85) In writing, there is a lot of use of graphic organizers. (86)

The Student made progress in reading more complex books, writing, his anxiety has lessened. (122) The Student benefitted from direct instruction and modeling at the school. (89) Writing has improved “quite a bit” though his writing will tend to deteriorate as the work becomes longer. (90-91)

Testing at the in terms of reading, math, wide range achievement (WRAT-IV) indicate that the Student has made significant progress at the school. (Exh. S; 99-103) Standard reading scores in vocabulary jumped from grade equivalent in 2008 to grade equivalent in 2012. In terms of comprehension, scores jumped from grade equivalent in 2008 to grade equivalent in 2012. Math scores have jumped from grade equivalent in 2008 to grade equivalent in 2012.

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The District concedes that it denied the Student a FAPE. (5) As a result, I turn to the second criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record indicates that the Student has particular needs in terms of reading and writing. The Student is at the mid fourth grade level in decoding and comprehension, and at the third grade level in terms of written expression. He has a difficult time with , . He has a difficult time . He uses .

The record shows that is dedicated to addressing issues like these. The school offers a multi-sensory, highly structured and sequenced program that is based on the Orton-Gillingham methodology. Classes are small, with at most 12 students and two teachers. Students receive small group instruction and direct instruction. The students use graphic organizers at the school for writing. The school provides modeling, direct instruction, repetition. Instructions are broken down for students. The classrooms have minimal distractions. There are three periods of language arts a day, including reading, writing, language skills, and study skills. Listening, speaking, reading and writing are all emphasized. The Staff is Orton-Gillingham trained and provides with “Preventing Academic Failure” program and the “Basic Writing Skills” program. Students also receive math daily, there is a science lab, social studies, physical education, library, art and gym.

The record also shows that the Student has made significant progress at the school. The District protests that the measures are not objective, but the school has conducted regular standardized assessments of the Student over the years. Standard reading scores in vocabulary jumped from grade equivalent in 2008 to grade equivalent in 2012. In terms of reading comprehension, scores jumped from grade equivalent in 2008 to grade equivalent in 2012. Math scores have jumped from grade equivalent in 2008 to grade equivalent in 2012.

The District also contends that the did not put on any witnesses at the hearing, and therefore the parent could not meet her burden of proof. However, I agree with the position of many SRO decisions, which indicate that parents need not present a witness from the school to be awarded tuition. Application of the Board of Educ. of the Hastingson-Hudson School District, Appeal No. 05-092 (2005)( at issue); see also Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, 97-02; Application of a Child with a Disability, Appeal No. 96-09

The District also argues that did not meet the Student’s needs insofar as related services are concerned, in particular therapy and . However, the record reflects that the Student is functioning well in speech and that “many of his skills were falling in the range.” (Exh. D-2) In regard , the record does not show that the Student has benefitted from is material to the Student’s special education needs. G.R. v. New York City Department of Education, 53 IDELR 9 (S.D.N.Y. 2009)(school did not provide child with therapy, which would have been appropriate for student; reimbursement ordered, reversing SRO; speech was only one area where the student had deficiencies); Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, and District had recommended speech therapy; parental placement deemed appropriate). As the Circuit indicated in Frank G.:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, 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.

Frank G., 459 F.3d at 364-365 (emphasis in original); see also M.F. v. New York City Board of Educ., 113 LRP 24114 (S.D.N.Y. 2013)(to employ a “more rigorous standard” than is required for the second criterion of Carter is required is error).

In sum, I agree with the parent that the was an appropriate placement for 2012- 2013. The parent prevails on the second criterion.

On the third criterion, the IDEA allows that tuition 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. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.

Courts indicate that, where a District fails to offer a placement for a particular school year, equitable considerations should not bar reimbursement. N.R. on behalf of T.R. v. Department of Education of the City School Dist. of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). As Judge Barbara Jones put it:

the Department's “abdication of its responsibility to provide. FAPE is so clear from the record—and the law's imposition of this duty on the [Department] is so well-settled—that ... the equities favor the parents.”

Gabel v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F.Supp.2d 313, 329 (S.D.N.Y.2005) (granting tuition reimbursement claim). Indeed, Defendants have not cited, and the Court is unaware of, any case in which equitable considerations favored a school district that failed to offer a disabled child a school placement prior to the commencement of the school year.

N.R. ex rel. T.R. v. Dep't of Educ. of City Sch. Dist. of City of New York, 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) at *7; cf. R.B. and H.Z. v. New York City Dep’t of Educ., 713 F. Supp.2d 235 (S.D.N.Y. 2010)(District did not provide final notice; parent not required to provide notice under third criterion).

Here, the District did not present a case in regard to its program and has conceded that it denied the Student a FAPE for 2012-2013. The District argues that the parent did not consider the District placement, but an appropriate placement was not available to the parent. Moreover, there is testimony in the record from the parent that she did visit the placement and did consider the placement. The parent then wrote a highly detailed letter explaining why she though the placement was inappropriate. Moreover, the record indicates that the parent complied with all District demands and requests and provided the District with appropriate notices here. N.R, 2009 WL 874061 at *6-*9. The District does not contend otherwise.

Accordingly, I find that the parent prevails on the third criterion and is awarded tuition reimbursement for 2012-2013 . Dated: May 12, 2013

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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

A Complaint dated 12/11/2012, 9 pages B IEP, dated 5/11/2012, 12 pages C Evaluation dated 9/2/2012, 17 pages D Evaluation by , 10 pages E 2010-2011 Testing Scores , 1 page F 2011-2012 Report Card , 1 page G Enrollment Contract dated 2/8/2012, 1 page H Affidavit of Tuition dated 2/14/2013, 1 page I Proofs of Tuition Payment dated 2/13/2012 and 5/4/2012

2 pages J Parent Affidavit dated 2/13/2013, 1 page K Program Description, 2 pages L 2012-2013 Class Schedule, 1 page M Parent Correspondence dated 6/2/2012, 1 page N Parent Correspondence dated 6/18/2012, 1 page O Parent Correspondence dated 9/14/2012, 1 page P 2012-2013 Report Card , undated, 1 page Q 2013 Progress Report , undated, 14 pages R Program Description, undated, 13 pages S Standardized Testing Scores from Windward School, undated, 1 page

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

1 Prehearing Conference Summary, 1 page 2 Timelines Notice, 1 page 3 Timelines Notice, 1 page 4 Timelines Notice, 1 page 5 Timelines Notice, 1 page 6 Parent Brief, 5/28/13, 12 pages 7 District Brief, 5/29/12, 15 pages