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

Dates of Hearing: February 6, 2013

March 5, 2013

March 7, 2012

Actual Record Closed Date: April 15, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUAY 6, 2013

Esq. Attorney — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED

Esq. Attorney — Parents

Father — Parents

District Representative — DOE

Psychologist — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

Esq. Attorney — Parents

Father — Parents

Teacher- — Parents

(via telephone)

Headmaster- — Parents

(via telephone)

Psychologist — Parents

(via telephone)

Teacher- — Parents

(via telephone)

Teacher- — Parents

(via telephone)

District Representative — DOE

On February 6, 2013, March 5, 2013 and March 7, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The parent alleges that the DOE failed to provide a free appropriate public education of the 2012-2013 school year and seeks DOE funding for a unilaterally selected placement. (Ex. C)^[1]

Procedural History^[2]

The proceeding was initiated at the request of the parent by correspondence dated December 20, 2012. (Ex. B) I was appointed Impartial Hearing Officer on January 22, 2013, after one or more prior recusals. I was available to conduct a hearing within 14 days. (T. 3) At a telephone conference with the parties conducted on January 25, 2013, the hearing was scheduled for February 6, 2013 and March 7, 2013, the then first mutually available dates for the parties and the hearing officer. (Ex. I) Subsequently a hearing date of March 5, 2013 was added.

An uncontested Interim Order on Pendency was issued on February 11, 2013, permitting the student to (“York” ) and participate in its Jump Start program during the pendency of this action based upon a Findings of Fact and Decision dated March 16,

2012. (Ex. V)

By correspondence dated February 12, 2013, the parent sought to amend his complaint and permission to amend was granted. (T. , Ex. C )

The current compliance date is May 6, 2013.^[3] The record closed on April 15, 2013, upon my receipt of all post-closing memoranda.

Lists of the persons in attendance at the hearings and a list of the documents submitted are appended. See 8 NYCRR 200.5(j)(5)(v).

Factual Background4

The student was almost old at the commencement of her 2012-2013 school year in September 2012. (Ex. 5) From grade she attended the , a school for students with disabilities. (T. 125-126) For the 2011-2012 school year, year, she attended and participated in its program. (T.126-127) Tuition for the 2011-2012 year was paid by the DOE pursuant to an Impartial Hearing Officer order. (Ex. A) has not been approved by the Commissioner of Education as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR 200.1(d), 200.7.

The parent signed 2012-2013 enrollment contracts for York Prep (tuition $38,950) and the Jump Start program ($18,000) on February 1, 2012, made various payments and seeks reimbursement for the total tuition ($56,950). (Exs. M, N, O) The parent obtained tuition refund insurance in the event the student did not attend or withdrew from the programs. (T. 135-136, Ex. M)

By letters dated February 26, 2012 and June 1, 2012, the parent requested a CSE review the parent requested a CSE review. (Exs. I, J) He informed the CSE that enrollment was necessary to secure a place for the 2012-2013 school year in the event the DOE did not provided an appropriate placement. (Ex. I) By letter dated August 17, 2012, the parent asserted that no review had been held and that no placement had been offered and informed the CSE that the student would be sent and that he would seek reimbursement from the DOE for that unilateral placement. (Ex. K)

For the 2011-2012 school year the CSE had recommended a special class ( ), had classified the student as and had recommended therapy (“ ’) (two forty minute session per week in a group of four). (Ex. G-15)

The CSE convened on August 28, 2012 to develop a program for the 2012-2013 school year. (Ex. 5) The parent attended by telephone and a representative of the parent accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 433, Ex. II) was physically present. (Ex. 5-12) There were no participants from and the CSE did not have assessments, progress reports or report cards. (T. 76, Ex. 5-12) The CSE team included a school psychologist who also was the district representative, a DOE special education teacher, a DOE general education teacher and a parent member. (Ex. 5-12) The psychologist had no knowledge of this student and not knowledge concerning this review until she received the assignment that morning or the afternoon before. (T. 100-

101) There is no claim or indication that any of the other DOE participant were not in the same situation.

The CSE considered an evaluation conducted dated September 20, 2011 (“the Kenner evaluation”) and an evaluation dated June 28, 2012 (“the Newman evaluation”).

(T. 45, Exs. 8, 6) The team also considered input from the parent. (T. 49, 50, 76, 182)

For the 2012-2013 school year the CSE recommended a General Education program with SETSS (group) for ELA ( two periods a week), Social Studies (one period a week), Math (one period per week) and Sciences (one period per week), changed the student’s classification to and did not recommend . (Ex. 5-6) No other related services were provided. (Ex. 5-6)

By FNR dated August 30, 2012, the DOE offered a placement in a community school (“the public school”). (Ex. 7)

By letter dated September 14, 2012, the parent informed the CSE that he had visited the school on September 11, 2012, and had concluded that it was not appropriate. (Ex. L)

Positions of the Parties

The parent asserts that the IEP was procedurally and substantively defective, that the parent was denied a meaningful opportunity to participate in its development and that that there is no evidence that that proposed placement was appropriate. The parent claims that the DOE did not provide a FAPE. Further, the parent asserts that the unilateral

The specifications in the “Background” section are included herein as Findings of Fact. placement provided was appropriate for this student and that equitable considerations do not support denial or reduction of reimbursement for that program as sought by the parent.^[5] (Ex. III)

The DOE asserts that a FAPE was provided, that the program provided by the parent was not appropriate and that equitable considerations do not support reimbursement for all and/or any part of the program. (Ex. IV)

Cases Presented

A list of documents in evidence are appended.

The sole DOE witness was ”), school psychologist who was also the district representative at the review.

The parent presented the testimony of the following: ”), the student’s Remedial Writing teacher; ”), Headmaster; Dr. (“ ”), the psychologist who conducted the September 20, 2011 evaluation; ”), the student’s History teacher; ”), the student’s teacher; the student’s father (“the parent”).

Findings of Fact and Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. However, I note that could not confidently recall various matters and that her testimony at certain times was inconsistent. See for example T. 105, 109-110, 111, 112.

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n. 21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

This parent’s hearing request challenged both the program and the placement. (Ex. C) The DOE has the burden to establish that the program and placement offered are both appropriate. In this matter, the DOE presented no witnesses whatever with regard to the placement. The only document it submitted with regard to the issue is an FNR sent to the parent. (Ex. 7) However, the mere transmission of an FNR does not establish that there was in fact a placement for this student at the beginning of the school year and/or that the named school could provide this student with the mandated SETSS and otherwise implement the IEP.^[6] The DOE’s reliance on R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir. 2012) is misplaced. Although R.E. clearly limits the “retrospective” evidence a district may offer to demonstrate an IEP’s inadequacy, it does not relieve a district of its continuing burden to establish FAPE by demonstrating that its proposed placement conforms to its IEP. In fact, it unequivocally endorses the need for “implementation” evidence when it states that a school district “may select the specific school” provided “it conforms to the program offered in the IEP.” Id. at 191-192. Further, it notes that placement evidence can be cited “to show” that the child was denied a FAPE because necessary services were not provided in practice.” Id. at 187 n.3.

Post R.E. cases have also found that the burden remains on the district. See, B.R. v. N.Y.C. Dept. of Educ., 2012 U.S. Dist. LEXIS 182305 (S.D.N.Y. December 26, 2012) (the fact that the student did not attend the school does not relieve the DOE from its burden to establish that it provided an adequate placement) ; J.F. and L.V. v. N.Y.C. Dept. of Educ., 2012 U.S. Dist. LEXIS 170637 (S.D.N.Y. November 27, 2012) (the district must show it provided an environment reasonably calculated to enable the student to receive educational benefits); R.C. and L.C. v. Byram Hills Sch. Dist., 2012 U.S. Dist LEXIS 165878 (S.D.N.Y. November 16, 2012) (placement defects could constitute a material failure to implement an IEP); D.C. v. N.Y.C. Dept. of Educ., 2013 U.S. Dist.

LEXIS 42764 (S.D.N.Y. March 26, 2013) (FAPE found to be denied when the school district failed to show with permissible evidence in the record that the IEP could be appropriately implemented).

Accordingly, I find that the DOE has failed to establish that a FAPE was provided because it did not establish that it could be implemented appropriately.

However, although not necessary in view of the foregoing finding, I also consider the parent’s claim that the IEP was substantively defective.

asserted that a general education program for this student, a 10th grader, would have entailed a 10th grade curriculum, 10th grade textbooks and a class size of approximately 25-30 students. (T. 84-86) She opined that the student could function in a general education environment because she was not level. (T. 61) However, the sole evaluative material reviewed by the CSE team were the Newman and Kenner evaluations. (Exs. 6, 8) Those evaluations make clear that the student was substantially below grade level.

evaluated the student in the grade and determined testing scores mostly in the 4th and 5th grade range. (Ex. 6 at 4-5) The results, secured at CSE request, were “basically commensurate” with the “recent testing done by . (Ex. 6-7) Age equivalents specified largely placed the student, well below expectations, at the 11 year old level (i.e. grade). (Ex. 6-2,5) Newman himself discounted the “average” designation on some scores, noting that it was a function of the scoring on the test he used and that his results were consistent with Kenner’s. (Ex. 6-7) , testifying in this proceeding, stated that Newman’s results were consistent with hers. (T. 369-372) Further, this was not substantially disputed . (T. 82-83) Based upon her evaluation, concluded that the student was so far below grade level that she could not function in the general education program recommended by the DOE even with a daily SETSS pullout. (T. 377-378) opined that the student required a small classroom environment within a school that provides learning resource room support. (T. 379, Ex. 6-5) None of the student’s teachers participated in the review and there is no indication that any of the DOE participants in the review had any prior knowledge of the student.^[7] I conclude that the CSE lacked evaluative material necessary to support its recommendation. 8 NYCRR 200.4(d)(2)(i).

Further, the testimony of her teachers supports my conclusion that the program proposed was not appropriate. The student is in the lowest tracks in all her subjects at resulting in her being grouped with learners similarly significantly below grade. (T. 318, 327, 402) Her writing grade level was estimated to be without assistance and closer to 8th grade only with a lot of step by step prompting and support. (T. 212-213) She is able to comprehend an 8th grade level text book only with a great deal of scaffolding. (T 406,

430) Each of the teachers concurred that she would be unable to keep up in the grade general education program proposed by the CSE. (T. 219, 327-328, 424)

I conclude that the DOE has failed to establish that the program recommended was reasonably calculated to enable this student to make meaningful educational gains. Accordingly, I find that the DOE has failed to establish that it provided a FAPE for the 2012-2013 school year on this ground as well.

In view of the foregoing findings with regard to the program and placement, I do not consider the parent’s other claims.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

The evidence shows that the student has a reading disorder and on-going weaknesses in receptive and expressive language and requires small classes, exposure to typically developing students and extensive support from teachers familiar disabilities.

(T. 383-384, Exs. 6, 8) She comprehension, writing, spelling grammar, executive functioning, receptive and expressive language and has has some 360 students with 124 in the program and others with diagnosed who no longer participate because they have learned the techniques. (T. 260) The average class size is 15-16 students. (T. 253) There is tracking in each subject to enable grouping at appropriate instructional levels in each class. (T. 250-252)

Pursuant to the , certified special educators are assigned to no more than 11 students with learning challenges (T. 254-255) Students meet in group sessions twice a day which enables monitoring of academic work and executive functioning support and meet individually for twice weekly scheduled individual sessions when skills based instruction is provided in accordance with the student’s deficit areas. (T. 255, 256, 307) Students can also meet teachers on an as needed basis and ongoing support is provided by e-mail during the evening and weekends. (T. 308-309) In addition, teachers may push into classes. (T. 256-257) Classroom teachers, some of who are special educators and/or have experience working with students challenges also address students’ deficits in the classroom and receive support with regard to modification of instruction and the provision of accommodations. (T. 260-261, 264, 308, 323-324) Computer software is utilized to help the students with organization. (T. 265-266)

Parent support for the students is enhanced by a computer system which gives parents access to all relevant information concerning the student’s progress and assignments and the ability to assist them organizationally. (T. 265, 267)

This student is in the lowest track in each subject, one of which is a remedial writing class that is taught by a special education teacher. (T. 198) The tracking system has allowed instruction to be specifically tailored to the student’s needs. (T. 198-199, 321-322, 325-326) There are also push- education teachers assigned to her English, History and Math classes. (T. 322) A variety of strategies are utilized for this student including scaffolding, re-teaching, , chunking material, rewording directions, previewing and paraphrasing as well as visuals, the use of graphic organizers and other techniques including to enhance writing and vocabulary work. (T. 204, 206-207, 209211, 310-316, 407-411, 415-420)

The DOE asserts that the parent has failed to present reliable documentary evidence of progress. (Ex. IV) However, I find that the student’s teachers testified credibly as to her actual progress in all areas of deficit. (T. 217-218, 312-313, 314, 316, 317, 414, 420-421) Her report card also shows significant improvement. (T. 217-218, 325, 423-424, Ex. 9) Further, it is well established that the parent is required to demonstrate not actual progress but rather the potential for progress. See Gagliardo, supra at 112)

Based upon the foregoing, I conclude that the parent has met his burden to establish that the program he unilaterally selected addresses the student’s unique needs and is reasonably calculated to enable her to make meaningful educational gains.

Prong 3 The evidence shows that the parent did not obstruct but rather cooperated with the CSE in the development of an IEP. He early informed the CSE that he was required to sign a contract with York to secure a place and he requested a review. It is well established that the execution of a contract prior to a review does not establish a failure to cooperate. Appeal No. 05-087. Further, the parent purchased tuition refund insurance. He cooperated with another psychological evaluation despite his belief that it was undesirable. (T. 140) He promptly visited the public school when he received notice it and promptly informed the CSE as to his conclusion that it was not appropriate. Although the DOE asserts that his letter was insufficiently specific, it is undisputed that the CSE made no response. (Ex. IV) Further, there was no explanation profferred concerning the CSE’s extended delay in moving forward with a review until its last minute August 28, 2012 reconvene. I conclude that equitable considerations do not support denial or reduction of the reimbursement sought.

ORDER

The DOE shall immediately reimburse the parent for tuition , including the program, for a total amount not to exceed $56,950, upon the submission of satisfactory evidence of payment made by the parent.

Dated: April 18, 2013

_____________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 WITHDRAWN

2 WITHDRAWN

3 Due Process Cmplt. -No. , 1/22/2013, 7 pgs. Department of Education

4 Due Process Cmplt. - No. 8/16/12, 4 pgs. Department of Education

5 IEP for 2012-2013 school year, 8/28/12/, 12 pgs. Department of Education

6 Eval. (RCM), 6/28/12, 18 pgs. Department of Education

7 FNR, 8/30/12, 1 pg. Department of Education

8 Brief Academic Eval. (Dr. ), 9/20/11, 7 pgs. Department of Education

9 , 2nd Q Report Card, 1/8/13, 1 pg. Department of Education

A Findings of Fact and Decision, 3/16/12, 18 pgs. Parent

B Hearing Request with p.o.d., 12/20/12, 6 pgs. Parent

C Amended Hearing Req. with p.o.d., 2/12/13, 8 pgs. Parent

D WITHDRAWN

E WITHDRAWN

F Initial Eval, 6/28/12, 16 pgs. Parent

G IEP, 5/24/11, 17 pgs. Parent

H IEP, 8/28/12, 7 pgs. Parent

I Parent letter to CSE with p.o.d, 2/26/12, 2 pgs. Parent

J Parent letter to CSE with p.o.d. 6/1/12, 2 pgs. Parent

K Parent letter to CSE with p.o.d., 8/17/12, 3 pgs. Parent

L Parent letter to CSE with p.o.d., 9/14/12, 3 pgs. Parent

M Contract, 2/6/12, 3 pgs. Parent N Contract, 2/1/12, 1 pg. Parent

O Proof of Payment, various dates, 4 pgs. Parent

P CSE letter to parent, 8/17/12, 3 pgs. Parent

Q Parent E-mail to CSE and response, 8/23/12, 1 pg. Parent

I Prehearing Conference. Memo Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer

III Parent Post Hearing Memo Impartial Hearing Officer

IV DOE Post Hearing Memo Impartial Hearing Officer

V Interim Order on Pendency, 2/11/13 Impartial Hearing Officer

---

Footnotes

[1] References to the hearing transcript are noted as “T.”. References to exhibits admitted into evidence are noted as “Ex.”.

[2] The specifications in the “Procedural History” section are included herein as Findings of Fact.

[3] The initial compliance date in this matter was March 5, 2013. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the submission and consideration of closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in

[5] The parent made specified numerous claims in his amended hearing request but such claims as were not addressed in his closing memorandum have been waived. (T. 432-433, Ex. III)

[6] Similarly, the mere fact that the parent informed the CSE that he was given a tour of the school and certain information does not establish that the placement and services were available and/or that this student’s IEP could be implemented there. (Ex. L)

[7] Further, I conclude that the DOE has not demonstrated that there was any reasonable attempt to obtain their presence. The evidence shows, at best, no effort to secure teacher participation until the day before the CSE review, held at the end of summer when vacations and/or school trainings and preparations were to be expected. (T. 99-100)