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: April 26, 2013

Actual Record Closed Date: May 10, 2012

Hearing Officer: Michael Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2013

ESQ., Attorney, Law Offices of — Student

Parent/Father — Student

Director of the Elementary School, (Via Telephone) — Student

Teacher, (Via Telephone) — Student

Committee on Special Education Eight Representative — DOE

By Complaint dated December 18, 2011, the matter of 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. This hearing was requested to and placement for 2012-2013, and to request tuition reimbursement for for 2012-2013.

The District conceded that it had offered the Student an inappropriate program and placement. (6)

The matter proceeded without an agreement during the resolution process. A prehearing conference was held on February 27, 2013. (IHO Exh. 1)

Upon the application of the parent on the 4th day of March, 2013, the decision date in this matter was ordered to be reset to April 3, 2013. The reason provided was the need for additional time to prepare the case. The parties were provided notice through email and written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. 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. There was no objection from the District. (IHO Exh. 2)

A hearing date was scheduled for March 18, 2013, but was adjourned with the consent of the parties. Upon the application of the parent on the 30th day of March, 2013, the decision date in this matter was ordered to be reset to May 2, 2013. The reason provided was due process considerations. The parties were previously provided notice through email and are being provided with this notice through email. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was 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. There was no objection from the District. (IHO Exh. 3)

A hearing date was held on April 29, 2013, wherein testimony and evidence were completed. Upon the application of the parent on the 1st day of May, 2013, the decision date in this matter was ordered to be reset to June 2, 2013. The reason provided was the need for the IHO to review the transcript and render a decision. The parties were provided notice through email and written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. 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. There was no objection from the District. (IHO Exh. 4)

FINDINGS OF FACT

The student is classified as eligible for special education services. (6) The Student’s special education needs involve . (41) She has an and challenges. (41)

There are issues with . (41-42) There are difficulties with and . (42)

She reads independently on the (49) Her math is on . (50)

At , the Student gets work in small groups, instruction is broken down into manageable chunks. (14) There is a multi-sensory approach to teaching. (14) Related services are offered in speech and language therapy and occupational therapy. (15, 53-54) The class uses largely teacher created materials. (39) Curriculum is modified. (40) She gets movement breaks after 15 minutes. (43) They use theraputty to (43) She uses a cushion or a standing desk, which allows her . (43-44) The school provides movement breaks, FM speakers in every room. (98)

There are 12 students in the class with two teachers. (44-46) There is small group instruction for reading and math. (47, 49)

The Student is progressing in terms of language arts, writing, social and emotional issues. (57-58) She completes her homework, and is happy at the school. (97) She is more interested in reading, and is proud of her ability in math. (99) She is better able to . (100)

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 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 ("prong one,") the services selected by the parent are appropriate ("prong two"), and equitable considerations support the parent's claim ("prong three"), 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).

To meet the burden on the first prong, the District must show that it has offered a Free Appropriate Public Education, the District must show that it complied with the procedural requirements in the Individuals with Disabilities Education Act (IDEA), and that the Individualized Education Program (IEP) is reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982) 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 free appropriate public education (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 on the first prong.

On the second prong, 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 Richard’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record shows that the program provides the Student with a variety of special education services to meet the Student’s special education needs. The program provides the Student with small class size, small group instruction. Instruction is broken down into manageable chunks. There is a multi-sensory approach to teaching. Related services are offered in speech and language therapy and occupational therapy. Curriculum is modified for the Student. The Student receives interventions to such as movement .

The District contends that the school does not provide access to an education with typically developing peers, but the record indicates that the Student had previously been in an ICT class without success. (95) The District contends that the school does not provide ongoing assessment of the Student, but this is not the standard for a parental placement. The standard is that the placement should provide special education services to meet the Student’s special education needs. The District contends that there were insufficient specifics with respect to counseling and the functional grouping in the classroom, but I have reviewed the record and am satisfied that the parent has provided sufficient information in this connection. The District indicates that the Student’s teachers are not all certified, but this is not a requirement for a parental placement. Under the circumstances, I agree with the parent that the parental placement is appropriate. The parent prevails on prong two.

On the third prong, 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 parent’s 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. Application of a Child with a Disability, Appeal No. 04-071.

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, 52 IDELR 92 (S.D.N.Y. 2009). Moreover, the record indicates that the parents complied with all District demands and requests and provided the District with appropriate notices here. The District makes no argument on equities. The parents prevail on the third criterion and are awarded reimbursement for services provided for 2012-2013. Dated: May 22, 2013

MICHAEL S. LAZAN, 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

A Ten Day Notice, dated 8/22/12, 2 pages B Due Process Complaint dated, 12/18/12, 5 pages C Enrollment Contract 2012-2013, 2/7/12 2 pages D Room Schedule 2012-2013, undated, 1 page E Attendance Report from 9/12 to 2/13, dated 3/5/13, 1 page F Tuition Affidavit dated 1/10/13, 1 page G Mid-Year Progress Report from 2012-2013, undated, 23 pages H Educational Update dated 9/26/11, 7 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

1. Summary, 1 page 2 Timelines Notice, 1 page 3 Timelines Notice, 1 page 4 Timelines Notice, 1 page