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 15, 2013

June 11, 2013

July 17, 2013

Actual Record Closed Date: August 14, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 15, 2013

Gregory Cagiano Attorney — Parents

Teacher (via telephone) — DOE

Chairperson’s Designee, CSE, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 11, 2013

Gregory Cagiano Attorney — Parents

Mother — Parents

Principal of — Parents

Chairperson’s Designee, CSE, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 17, 2013

Gregory Cagiano Attorney — Parents

Father — Parents

Legal Intern — Parents

Administrator of — Parents

Chairperson’s Designee, CSE, District — DOE

On January 8, 2013, I was appointed as impartial hearing officer in the matter of (hereinafter the student) the date of my designation as impartial hearing officer, pursuant to the Individuals with Act (IDEA), 20 U.S.C. §1415(f)(1). On March 23, 2013, a prehearing conference was held and this hearing was scheduled to commence on April 15, 2013. The hearing continued on June 11, 2013 and concluded on July 17, 2013. The parties moved to extend the compliance dates during the course of the hearing. 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 accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exhs, I-VI). The current record close date is August 14, 2013 and the compliance date for issuing a decision is August 28, 2013. This hearing was convened at the request of the parents through their attorney. The request was received on January 7, 2013. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

The hearing was requested by the parents to challenge the February 16, 2012 review and the May 20, 2012 review and recommendation of the Committee on Special Education (CSE) and to obtain funding for a unilateral placement at School. The School is a private entity lacking State Education Department approval. The parents brought the hearing seeking direct funding of the tuition of $ , for the the program at the School and $ for related services for the 2012-2013 school year. (Exhs. B at 1; VII at 10) I note the related service cost reflected in the (Exh. E,M) of conflicted with the related service cost reflected in the enrollment contract (Exh. B) and testimony adduced at the hearing (Tr. at 245).

BACKGROUND

The student is a year old boy who was classified as The CSE developed an Individualized Education Program (IEP) on February 16, 2012. The Final Notice of Recommendation (FNR) dated February 16, 2012, recommended the a special class at in the Program in the School with a staffing ratio of class or students and 1 special

THE DOE’S CASE

the CSE District representative, was present on behalf of the Dept. of Education. maintained that the student was appropriately placed in the special class with a staffing ratio of at with appropriate related services and behavioral support and differentiated instruction. (Exh. VIII at 1) Dr. maintained that a was offered for the 2012-2013 school year. (Exh VIII at 1) maintained that February 16, 2012 IEP and the June 20, 2012 was appropriately drafted and reasonably calculated to meet the educational needs of the student and was procedurally and substantively valid. Dr. maintained that although was a month school, the parent agreed to the 10-month program as she signed the FNR (Exh.

2) dated February 16, 2012. The parent requested 2 months of summer services and the student attended , a NYCDOE funded special education summer camp. (Exh. VIII at 2) Dr. asserted that the parent failed to provide timely notice to the DOE of their dissatisfaction of the special class as she signed the FNR (Exh. 5) dated June 20, 2012 indicating she intended accepted the placement. (Exh VIII at 2)

Ms. testified that she held of a in special education and was employed by the DOE for 20 years. She stated that she was the (Tr. 11) She recalled that she knew the student since he was as he attended in a program for children from to grade and for grade (Tr. at 12) She stressed that the student’s parent did not inform her that the student was not attending for grade (Tr. at 13). She described as a self-contained program within a general education public school with children placed in classes (Tr. at 16) She related that the student was able to follow directions and the . (Tr. at 17, 19) She further related that the proposed class at utilized a safety system to teach the children how to safely exit the . (Tr. at 22) She described the adaptive physical education available to the children and noted that the curriculum in the proposed class included in self-care as well as including and were . (Tr. 26-34) She testified that the ID students received

On cross Ms. stated that she was present for the February 16, 2012 IEP meeting and subsequent to the February 12, 2012 IEP meeting the parent sent her a written request for a summer program. (Tr. 64) (Tr. at 66) She could not explain why the June 20, 2012 IEP (Exh. 3) indicated the length of of services nor could she explain why the same members who participated in the February 16, 2012 IEP also participated in the June 202, 2012 IEP meeting and the contents and the goals on the February 16, 2012 IEP were the same as the contents and goals of the June 20, 2012 IEP. (Exh. 70)

THE PARENTS’ CASE

Mrs. the student’s mother; the student’s father and the principal of the School, Mr. testified in support of the parents' claim for direct funding for the tuition for the secular portion of the unilateral placement at . The parents contend that CSE's June 20, 2012 recommendation which placed in special class in a community school with related services of was inadequate as there were (Exh. VII at 3-5). The parents maintained the district failed to offer for the 2012-2013 are seeking approximately The parent believed that the School placement is appropriate because the School provided with mainstreaming opportunities to meet the student’s unique needs. (Exh. VII at 7) The parents believed that the School placement is appropriate and the equities favor them. (Exh. VII at 9) The parents further asserted the June 20, 2012 recommendation of a special class in a community . (Exh. 1 at 1-4) The parents contended that the June 20, 2012 IEP contained insufficient and vague management needs and did not confer educational benefit. (Exh. 1 at 5)

The School principal, Mr. testified that he had a Master’s Degree (Tr. at 106-

107) He stated that he worked at for 13 years and noted that the School had population of (Tr. at 111) He stressed that he and used the Brigance Evaluation and he personally developed goals for each student at as well as . (Tr. at 110) He stated that the School contained classes with a with students on the and (Tr. at 108;113) He described the School which was a school housed in a general education school. (Tr. at 131) He explained there was inclusion because the had contact with the general education children in the student’s class in the the day. (Tr. at 137) He maintained that the student progressed in the 2012-2013 school year and opined that the . (Tr. at 119)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with “ (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). consists of and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

For tuition reimbursement/direct funding cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The district representative witness acknowledged that the June 20, 2012 IEP recommended a program; however, the June 20, 2012 recommended a 12-month school year. This inconsistency was never resolved. I find that there was insufficient evidence presented by the district representative to establish how the 10month placement at IS 71 with a month summer program met the unique needs of the student for months. I find it was uncontested that the student required a -month program and there was insufficient testimony as to the student’s program over the summer of 2012. The SRO had held the a -program is not sufficient if the student required a -month program in Application of the New York City Dept. of Educ., Appeal No. 11-057. The parents asserted that they were entitled to direct funding for the costs incurred for their unilateral placement of the student at the School. The Second Circuit held that a school district fulfills its obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and if the student’s IEP affords him an opportunity greater than mere “trivial” advancement. (Cerra v. Pawling CSD , 427 F.3d 186, 195, [2d Cir. 2005]) and that the student’s IEP is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 485 U.S. 176, 206-207 [1982] Cerra v. Pawling CSD, 427 F. 3d 186, 192 [2d Cir. 2005]) and the IEP is likely to provide some “meaningful” benefit to the student. (Mrs. B. v. Milford BOE, 103 F.3d 1114, 1120 [2d Cir. 1997]).

The parents asserted that the June 20, 2012 IEP was procedurally invalid and the procedural deficiencies seriously infringed on the parents participation in the IEP and resulted in a denial of . The parents asserted the June 20, 2012 IEP failed to include adequate levels regarding the student’s academic and social/emotional functioning. (Exhs. VII at 2; 1 at 2) The parents argued that the June 20, 2012 did not contain a or a despite the oppositional and interfering behaviors listed in the IEP. (Id.) The parents asserted that there were no formal assessments to measure the student’s academic skills or . (Exhs. VII The parents asserted that the June 20, 2012 IEP did not contain sufficient management needs and that the annual goals and short term objectives were vague and deficient and they were denied meaningful participation in the June 20, 2012 IEP. The parents asserted the proposed placement was not appropriate as the student was placed in the same program and placement since and did not progress. Further, the parents noted that had no opportunity for mainstreaming and that the student was not educated in the least restrictive environment at but was placed in the in the School.

While school districts are required to comply with all procedures not all procedural errors render an egally inadequate under IDEA. (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 [2d Cir. 2003]) A procedural violation has occurred relief is warranted only if it affected the student's right to a ( J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y. 2005]). The district representative asserted that the classroom at the was appropriate and that was provided as the IEP developed by CSE was appropriate. (Exh. VIII at 2)

The parents’ attorney argued there that the lack of an to address maladaptive and interfering behaviors resulted in a denial of . “(see P.K. v. New York City Dep’t of Educ., 2011 WL 1121492, at 18-19 [E.D.N.Y. Jan. 21, 2011)”(Exh. VII at 5) I find that the June 20, 2012 IEP team did not conduct the necessary assessments including a or a as required under 8 N.Y.C.R.R. § 200.4[b][1][v] as the The team was required to conduct the and then design a to manage the as required under 8 N.Y.C.R.R. § 200.22[b]. The Second Circuit differentiated between serious and minor (parent counseling) procedural violations based on state standards for analysis and found the “failure to conduct an FBA will not always rise to the level of a denial of , but when an is not conducted, the court must take to care to ensure that the IEP adequately addresses the behaviors.” (R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 59 IDELR ¶ 241 (2d Cir. 2012) I find the June 1, 2012 CSE team was aware of the oppositional behavior as documented in the February 16, 2012 IEP and the June 20, 2012 IEP. I find the IEP did not adequately address the student’s defiant and oppositional behaviors and in these circumstances, I find the lack of a was a denial of .

I find that the district failed to establish that the parent meaningfully participated in the decision making process in the June 20, 2012 IEP. I credit the parent’s testimony that there was no discussion of goals and in fact the meeting only occurred because she requested summer services for 2012. Moreover, I find the lack of to support the program in a community school significantly impeded the parent’s opportunity to participate in the decision making process as the student required a month program.

Therefore, I find the district failed to establish that was provided during the 2012-2013 school year.

The parent has the burden to and that the services they obtained for the student is appropriate to meet his needs. The fact that the facility selected by the parent to provide services to the child is not State-approved as a school for children with is not dispositive of the parent’s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The private school need not employ certified teachers, nor have its own IEP for the student. (Application of a Child with a Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the .” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]).

To meet the second prong, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs. However, parents are not barred from reimbursement if their program does not meet the definition of a 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 Carter, 510 U.S. at 10). The student need not be 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). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a 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 parent must prove that the student will receive an appropriate educational benefit from the program at the School and the parents offered substantial evidence to meet their burden. The evidence presented demonstrated that the classroom environment supports . I find that the School principal communicated with the related service providers. I credit the principal’s testimony regarding the appropriateness of . I find the mainstreaming opportunity improved the student’s participation and confidence in the community. I find the use of to met the student’s unique needs and I find that the student progressed in the 2012-2013 school year. I find the School principal provided clear and uncontested testimony of the student’s progress and submitted formal assessments to document the progress. (Exhs. K-L) Therefore, I find that the parents have met their burden regarding the unilateral placement of the student at for the 2012-2013 school year.

Equity may only favor a school district if the parents failed to cooperate with the CSE process or frustrated the placement by the school district (N.R. v. Department of Education of the City of New York, 2009 WL 874061 [S.D.N.Y. March 31, 2009]). I note that the parent established full cooperation by her participation in the June 20, 2012 IEP meeting and her August 22, 2012 letter (Exh. A) to CSE alert CSE that she intended to place her son at the School. Tuition reimbursement/direct funding may be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to continue to enroll the student at the School for the 2012-2013 school year when no appropriate placement was offered after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for direct funding and I find the parents made the student available for evaluations.

ORDER

I order that the DOE shall be directed to remit payment to the School in the amount of $ for related services within thirty days of the submission of proof of attendance. Dated: August 22, 2013

_____________________________

LINDA AGOSTON, 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 APRIL 15, 2013

A Notice of Placement to the District, 8/22/12, 3 pp. Parent

B Omitted

1 Hearing Request dated, 1/7/13, 6 pp. District

2 Final Notice of Recommendation, 2/16/12, 1 p. District

3 IEP, 7/20/12, 12 pp. District

4 Letter for re-evaluation, 6/4/12, 1 p. District

5 Final Notice of Recommendation, 6/20/12, 1 p. District

6 , 2/17/11, 2 pp. District

7 , 1/24/12, 1 p. District

8 , 10/10/11, 8 pp. District

I IHO Written decision granting extension of time, 3/21/13, 1 p. IHO

II IHO Written decision granting extension of time, 4/15/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD JUNE 11, 2013

B Enrollment Contract, 8/27/12, 3 pp. Parent

C US Income Tax Return, 2/9/13, 3 pp. Parent

D Class schedule for 2012/2013 school year, 1 p. Parent

E for 2012/2013 school year, 1 p. Parent

F Teacher’s/Provider’s certificates, various dates, 8 pp. Parent

G Progress Checklist, 1/28/13, 9 pp. Parent

H Report, 4/19/13, 1 p. Parent

I Report, 4/18/13, 1 p. Parent

J Parent’s version of IEP, 6/19/12, 15 pp. Parent

9 IEP, 2/16/12, 18 pp. District

III Decision on Extension, 5/24/13, 1 p. IH O

IV Decision on Extension,6/11/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD JULY 17, 2013

K , 9/5/12, 10 pp. Parent

L , 1/28/13, 5 pp. Parent

M 2012/2013 , undated, 1 p. Parent

V Decision on Extension, 7/17/13, 1 p IHO

POST HEARING SUBMISSIONS

VI Decision on Extension, 8/9/13, 1 p. IHO

VII Closing Statement, 8/14/13 10 pp. Parent

VIII Closing Statement, 8/14/13, 6 pp. DOE