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 12, 2013

April 26, 2013

Actual Record Closed Date: March 3, 2013

Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2013

Attorney — Student

Parents

Interpreter — Student

Attorney — DOE

DR, School Psychologist — DOE

(Via Telephone) — DOE

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

Attorney — Student

Sister — Student

Director — Student

Teacher (Via Telephone) — Student

Attorney — DOE

Mr. and Mrs. ., the parents of requested an impartial hearing on December 24, 2012 for the purpose of seeking funding for their unilateral placement of for the 2012/2013 school year. I was designated to hear this matter on December 26, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing was held on March 12 and April 26, 2013. The compliance date was extended on three occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is May 15, 2013. (Impartial Hearing Officer (IHO) Ex. I, III, IV).

year old man with a classification . (Department of Education (DOE) Ex. 3). His classification is not in dispute. (DOE Ex. 1; Tr. p. 77). He has attended the since September 2006. (Tr. p. 138).

A evaluation was conducted on October 27, 2010. ’s nonverbal IQ was in the range, his verbal IQ was and his full scale IQ was in the range. He was able to read at grade level; however his comprehension skills were at a grade level. In math, he was functioning at a grade level. His written language skills were also at a level. On the Vineland II, he obtained an overall composite score indicating functioning. He was described as a friendly and cooperative youngster, who may be somewhat easily at times, and who has , . (Doe Ex. 6).

On March 1, 2012, the Committee on Special Education (“CSE”) met to recommend a program for for the 2012/2013 school year. Dr. , a school psychologist who also served as the District Representative, the parents, , a special education teacher, Ms. , a school social worker, , and a parent member participated in the meeting. was also invited to participate; however he did not come to the meeting. (DOE Ex 3, p. 16; DOE Ex. 4; Tr. pp. 25-26). The CSE had a comprehensive report from , a copy of his CSE file, the testing performed on behalf of the DOE, and input from his teacher, school staff and the parent. (Tr. pp. 29-30, 32-33).

According to Dr. , it was reported that was functioning several years below grade level in terms of his literacy and mathematics reasoning skill; and that he was working on more functional math skills. (Tr. p. 30). The Individualized Education Program (IEP) notes that is working hard to develop gray area and abstract thinking; that he enjoys reading non-fiction articles and newspapers; and that he needs to increase his reading comprehension, fluency and higher level thinking skills. Socially, it was noted that socializes by sending e-mails, talking on the phone and participating in activities outside of school. It was noted that he will initiate conversations, but that he may ask too many questions or invade the personal space of a peer. (DOE Ex. 3, p. 1). He testified that the CSE had sufficient information to understand ’s functioning, at the time of the meeting. (Tr. p. 34). According to the IEP, ’s functional reading level was fifth grade and his functional math level was eighth grade. (DOE Ex. 3, p. 13). This was based upon the report of ’s teacher, Mr. (Tr. pp. 73-74).

Goals were developed, based upon materials from the school and in conversation with s’ teacher, about his progress toward those goals. (Tr. p .34). The IEP incorporates the literacy and math goals set forth in an Interdisciplinary Transition Program Report from the , dated December 2011. (DOE Ex. 5, p. 3; DOE Ex. 3 pp. 36). Dr. testified that in discussions with the teacher, it was determined that should continue to work on those goals, but with a higher threshold, to determine if the goal had been achieved (4 out of 5 and opposed to 3 out of 5). (Tr. p. 48). The IEP includes goals for planning and participating in four community trips with limited staff support; for increasing ’s math skills by estimating how long it will take him to achieve long term goals such as college or working on a job; budgeting his money and developing a plan to save for a desired object. (Id. at 5-6). The IEP also includes goals for developing social skills, and improving motor planning and postural control. (DOE Ex. 3, pp. 7-8). It was recommended that participate in state and district-wide assessments, with testing accommodations. (Id. at 10-11).

There is no indication that any assessments were performed to plan for ’s transition needs. Dr. testified that it was discussed that the family was hoping would attend college and hold a job in a career of his choice; that the school was working with him on transition issues, including some type of internship; and that he was showing more independence in traveling. (Tr. p. 38). Dr. testified that it was his understanding that public secondary placements have individuals on staff work with the students and families in their transition, including applying for postsecondary school and to relevant agencies that work with adults; and that this would be part of the services at the recommended program. (Tr. p. 40).

’s IEP describes the following activities, which are needed to facilitate the student’s transition:

“Instruction. will participate in appropriate educational opportunities.

Related Services: will participate in all mandated related services.

Community Experiences. will participate in community experiences.

Development of Employment and Post-school adult Living Objectives: will explore areas of career/vocational interest.

Acquisition of Daily Living Skills: This area was left blank

Functional Vocation Assessment: This area was left blank. According to the IEP the parties responsible for these activities are school and student. (DOE Ex. 3, p. 11). Dr.

testified that the outside agency involved in creating the transition plan was School, but there was no outside service agency involved. (Tr. p. 72).

The CSE recommended placement in a special class in a specialized school ( ), with related services of Therapy (“SLT”) (2 x 45 individually, and once in a group for forty-five minutes); and Occupational Therapy (“OT”) (2 x 45 individually; and 1 x 45 in a group); and Physical Therapy (“PT”) (2 x 45 individually). Twelve month programming was recommended. (DOE Ex. 3, p. 9-10). Dr. described the recommended program as structured and supportive in terms of developing the students’ cognitive, academic, communication and socialization skills, and felt it would address ’s needs. (Tr. p. 92). Placement in a community school was considered but rejected as not providing sufficient support. ’s school staff felt he should be in a program with the staffing ratio provided at his current school (which was ). (Tr. pp. 48-50).

Mr. , ’s father, testified that he attended the March 1, 2012 CSE review. He testified that there was no discussion regarding transition activities. (Tr. p. 81). He informed the CSE that transportation training was important to him, and that he wanted to receive a (Tr. pp. 91-92). The CSE was informed that was participating in a class with eight students. (Tr. p. 93). He does not recall saying anything to the CSE about the recommended program. He testified that the same program was also recommended in the prior school year .(Tr. pp. 96-97).

He received a final notice recommending a site in June, and went to visit the recommended site on June 26. (Tr. p. 83, 90). He felt that the recommended school was inappropriate because there were metal detectors, and because there was no air-conditioning. (Tr. p. 84). Although school was still in session, there were no children in the class, when he made his visit. (Tr. p. 85). He testified that when he explained ’s math skills to the teacher, he was told that they don’t have classes like that; and that could be tutor for the other students. (Tr. p. 86).

Mr. testified that at , works in the library for compensation. (T pr. 86) He also volunteers in the New York Public Library, and has learned to use the subway by himself. (Tr. pp. 86-87). He testified that he described these programs to the teacher at the recommended site and was told “we don’t have, but maybe, we will have”. (Tr. p.

88). He testified that he continued ’s enrollment at the because he is doing well there.

(Tr. p. 89).

On June 15, 2012, the parent, through their attorneys, wrote a letter to the CSE rejecting the recommended program as inappropriate, as it would not provide a suitable and functional grouping. They stated their intent to place him at and seek tuition reimbursement. (Par. Ex. A). On June 6, 2012, the parents signed a contract enrolling at for the 2012-2013 school year, with tuition of $97,700.00. (Par. Ex. G). On June 8, 2012, they made a non-refundable deposit of $1,000 (Par. Ex. H; Tr. p. 94). As of the date of hearing, they paid a total of $6,000.00 toward ’s tuition. (Par. Ex. K). They presented proof that their 2011 adjusted gross income is $99,821. (Par. Ex. J). Mr. .

testified that he is seeking prospective funding because he cannot afford the School tuition. (Tr. p. 90).

, the director of , testified that the school serves students on , aged four though twenty. The school currently has 121 students. philosophy operates on the DIR model, developed by Dr. which educates students based upon their progress through basic developmental levels. (Tr. pp. 109, 113).

participates in the “transitions program”. His class consists of eight students, a head teacher, and four assistants who are called transition facilitators. (Tr. pp. 115-116).

, ’s head teacher, has a master’s degree in special education and is a certified special education teacher. (Tr. p. 149). The transition facilitators have at least a bachelor’s degree. (Tr. pp. 123). The school is supporting as he works toward his and learns to travel independently on the subway, while minimizing the amount of adult support he requires. (Tr. pp. 129-131). receives related services of PT twice per week; OT twice per week, SLT three times per week and counseling, twice each week. (Tr. p. 135). His class goes out into the community at least three times per week, including visits to museums and community service. participates in his internship at the public library once each week. (Tr. pp. 142-143).

testified that this is his second year as ’s teacher. He participated in the March 2, 2012 CSE review. (Tr. p. 151). He testified that the CSE reviewed the goals contained in his December 2011 progress report. He testified that these were goals proposed to be achieved as of June 2012. He acknowledged, however, that as of the CSE review, the goals had not been consistently achieved. (Tr. pp. 153, 190). He does not recall any discussion of a transition plan at the CSE review. He testified that he provided his progress report to the CSE, which included ’s transition activities. (Tr. p. 155).^[1] Mr.

disagreed with the recommended program, because he felt that benefited from instruction with a staffing ratio. (Tr. p. 156). He testified that requires this level of support to help him navigate conversations, stay on task and to stay regulated. (Tr. p

.189). is supervised with an adult for his internship at the New York Public Library.

(Tr. p. 158).

Mr. testified that he is assisting in preparing for the math and literacy portions of the GED. (Tr. p. 161). He testified that for math, functions between a grade level. His reading comprehension is at a late level. His decoding skills are at a grade level. (Tr. p. 12).

DOE POSITION

The DOE’s position is that its IEP provided with a free and appropriate public education (FAPE). Specifically, the DOE argues that the IEP was procedurally and substantively appropriate. With respect to the challenged transition plan, the DOE argues that the IEP incorporates the skills relative to the student’s transition in the goals for budgeting, participating in community trips and planning for long term objectives. It argues that the CSE also relied upon the transition plan included in Report which was discussed at the meeting, and that it was aware of the student’s desire to take and continue his education in a post-secondary school. (IHO Ex. V, p. 12).

The DOE argues that the parents rejected the recommended placement on June 15, 2012, solely based upon the IEP, even before they visited the recommended site; and that there can be no denial of FAPE due to the failure to implement it. (Id. at 14-15).

The DOE further argues that the parents failed to prove that the unilateral placement is appropriate and that equitable considerations do not support their claim. (Id. at 17-20).

PARENT’S POSITION

The parents’ position is that the March 1, 2012 IEP is inappropriate because (1) it fails to provide with an adequate transition plan (2) the CSE failed to properly assess ’s skills; (3) because does not fit the description of students serviced in the District 75 programs, as described in a DOE document; (4) and because the DOE failed to present evidence to show that the recommended site was capable of satisfying the IEP requirements. (IHO Ex. VI at 5-9). The parents argue that is an appropriate placement, and that equitable considerations support the parents’ request for funding. (Id. at 10-14).

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).

An appropriate educational program begins with an IEP that 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 Student with a Disability, Appeal No. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997).

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200.4[d][2][iii]). I find that the goals contained in ’s IEP are comprehensive, and consistent with the information from the evaluation and ’s teacher.

TRANSITION PLANNING/SERVICES

8 NYCRR 200.1(fff) defines transition services as “a coordinated set of activities for a student with a disability, designed with a result-oriented process.” These activities must be based upon “the student’s strengths, preferences and interests.” The record indicates that the CSE did not discuss or create a transition plan for . Although the IEP includes goals related to transition plan (budgeting, going into the community), the IEP does not include a coordinated set of activities with a result-oriented process. The IEP does not provide for travel training, internship opportunities, or for preparation for the although the CSE was informed that these were all part of the transition plan desired by and his family; and which were part of the Rebecca School Report.

Dr. ’s testimony that public secondary placements work with the students and families in their transition, and that this would be part of the services at his program, does not satisfy this requirement, as these services were not part of the IEP. R.E. v. New York City Department of Education, 694 F. 3d 167 (2d Cir. 2012). I further find that the transition plan was a major component of ’s educational program; and that the deficiency in that plan caused a deprivation of educational benefits and a denial of FAPE. See 20 U.S.C. Sec. 1415(f) (3) (e) (ii).

Finally, the DOE failed to present any evidence that the recommended program could be implemented at the recommended site. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).

APPROPRIATENESS OF PARENTAL PLACEMENT

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parent demonstrated that the is an appropriate educational program designed to meet ’s needs. is educated in a small class, with support from a special education teacher, and transition facilitators. receives support as he prepared to take the He also receives travel training, and support at his internship site. His program also includes related services of ; as well as a great deal of support for development of social skills.

EQUITABLE CONSIDERATIONS

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].

The record indicates that the parents cooperated with CSE by participating in the CSE review and expressing their specific concerns that receive support in preparing for the and travel training. The parents have demonstrated that they were unable to pay the entire tuition tuition, and seek reimbursement. Their adjusted gross income in 2011 was $99,821, which is $2,000.00 more than ’s tuition for the 2012-2013 school year. They had paid $6000.00 of the total tuition amount as of the conclusion of the hearing.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall fund ’s tuition at for the 2012-2013 school year, by reimbursing the parents for the amounts they have paid, upon presentation of proof of payment thereof; and by paying the balance of the tuition directly to . Dated: May 13, 2013

______________________

DORA LASSINGER,ESQ.

Impartial Hearing Officer DL;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

PARENT

A Notice dated 6/15/12, 3 pgs. B ***Withdrawn - Duplicate*** C Excerpt From Continuum of Services, undated, 2 pgs. D Interdisciplinary Report, 12/2012, 9 pgs. E Schedule, 2012- 2013, 1 pg. F Brochure, undated, 8 pgs. G Enrollment Contract, 6/2012- 7/2013, 4 pgs. H Payment Schedule, 2012-2013, 2 pgs. I Proof of Deposit, Cancelled Check, dated 6/6/12, 1 pg. J Parents' Tax Return, 2011, 2 pgs. K Payment affidavit, 4/19/13, 2 pages L School attendance 2012/13, 2 pages M curriculum, undated 3 pages

IHO

I Case Follow-Up Sheet With Attachment dated 1/25/13,2 pgs. II Prehearing Conference Summary dated 1/25/13, 1 pg., Case Follow-Up Sheet dated 3/12/13,1 pg. III Case file worksheet, 3/12/13, 1 page 147 147 IV Case file worksheet, 4/26/13, 1 page 147 147

DEPARTMENT OF EDUCATION

1 Due Process Complaint With Fax Confirmation dated 12/24/12,6 pgs. 2 Due Process Response dated 1/22/13, 3 pgs. 3 IEP dated 3/1/12, 16 pgs. 4 CSE Invitation Letter dated 2/17/12, 3 pgs. 5 Interdisciplinary Report, 12/2011, 19 pgs. 6 Evaluation dated 10/27/10, 7 pgs.

Footnotes

[1] In a discussion with the parents, it was determined that should pass and attend an adapted college program. It was determined that the transitions program will focus on working with to use public transportation independently, to work on building abstract thinking capacities and flexibility and to work toward passing the GED. (Par. Ex. D, 3-4).