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: July 15, 2013

Actual Record Closed Date: September 1, 2013

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2013

Attorney — Parents

Dept. Designee — DOE

Father — Parents

Parents

INTRODUCTION

Pursuant to the Individuals Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a education program, Students with , New York City Impartial Hearing Case #143233. The Parent filed for an impartial hearing on January 8, 2013. At the hearing, the Department of Education hereinafter referred to as the “DOE” was by its designee, , and the Parents were represented by their attorney Esq. The hearing was conducted at the impartial hearing office, New York City Department of Education ,at 131 Livingston Street, Brooklyn, New York.

BACKGROUND

The student is currently a year old male who is classified as “ On February 2, 2012, the Committee on Education (CSE) met to discuss the educational needs to develop an individual educational program, (IEP) for the child, hereinafter referred to as The CSE team classified the child as stated above and recommended placement in an “

THE PARENT’S POSITION

The parent alleges that the annual goals as stated on the child’s IEP were not appropriate and that the Department of Education hereinafter referred to as the “DOE” failed to offer “” a free and appropriate public education (FAPE) in compliance with the Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983 and failed to recommend an appropriate placement.

The Parents maintain that ., hereinafter referred to as “ ”” is an appropriate placement for their child. It has classrooms and programs which provide support for children with learning and its teachers to address the need for the children.

Lastly, the Parents maintain that they attended all meetings, provided documents, viewed proposed placement and were cooperative; are seeking reimbursement for tuition at “ Prep”.

THE DEPARTMENT’S POSITION

Although the Department conceded that it failed to provide “” with a FAPE, it was their position that the Parent must establish that the educational program they selected was appropriate. The Department conceded Prong I of the Burlington/Carter Test and the only issues to be determined are whether or not “ ” was an appropriate placement and if equitable considerations favor the parent.

THE PARENT’S CASE

after being duly sworn stated that she has a bachelor's of . She is a licensed and has a certification as a educator. She currently works at as the and prior to that she was the director of the program. She is one of the founding members of Prep and has been with them for the . Over the years, she taught in the classroom and did a lot of the things that are involved in running the were to oversee the program. If a student is accepted into the program, she would help to determine what and to set their schedule; she consults with the teachers to communicate those needs to them and to make sure things are running smoothly with the students in terms of meeting their needs. Approximately once a month, she is in each of the classes to with students and runs necessary. . A big role for her “is being a liaison between the parents and the teacher. So, you know, if needs come up for the parents it's easier for them to reach me and then I can kind of communicate between them and the teachers when necessary” (T. page 8).

covers stated that the “

Regarding teachers assigned to each classroom the witness stated that it varies depending on the class. “So like I spoke about

The teachers all use Teachers and other staff to meet on a weekly basis; for the middle school, there is a meeting every it's important in order to maintain consistency among the classrooms.” We just talk a lot about what's going on with the students, how are the classrooms going. You know, if something is working well for one teacher everybody wants to know so they can employ it also. And it just allows things to run really smoothly” (T. page 12)

Dr. stated that was enrolled in our this year in the program at the school; he been a student at the school Upon further questioning of the witness she stated an IEP stands for an Individualized Education Plan; “It's a term set up by the DOE, created based on the CSE review or a mandated meeting that the Committee on Education has each year. Each student that has been classified as student is entitled to have that meeting every year to result in this collaborative document regarding the educational needs of that student” (T. page 13). Ms. stated that is classified as

In his (’s) program, there are seven “ students” and they all have IEPs. Their classifications range

Furthermore, the witness stated “that it was a mix of s signed a tuition contract with Prep for the 2012-2013 school year and identified Exhibit G; he signed the contract on June 15th, 2012.He testified that “he delayed as long as I could because I was waiting for the Board of Ed. placement. But I needed to get a--save a spot for him because, you know, Prep has other kids waiting for spots, so I needed to reserve a spot for him and make sure he had a place to go for the next school year” (T. page 60). He paid the full tuition for the 2012-2013 school year…”but not right then, but in installments over the year”…the total tuition was $25,400.00. Finally, if the DOE had offered an appropriate placement after he signed the contract with Prep, he would have accepted it.

Upon cross examination, the witness stated that “Ms. did not participate in the CSE review; she was called and she--they And I believe Ms. wrote a letter explaining that's not what happened” (T. page 61). Mr. did not recall if he requested the meeting to be rescheduled and reiterated that the CSE did not even reach ‘s mother during the meeting. The CSE just wanted him to participate right then on the phone, and he said that he couldn't do that.

Regarding the contract, the witness believed that there was a deposit due, and that it thereafter begins on a month to month basis. He believed that he paid the tuition deposit in June, and then the payments started either in July or August (T. page 64).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with have available to them a FAPE (20 USC. 1400 [d) [1]; Board of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes education and related services designed to meet the student's, unique, needs, provided in conformity with a comprehensive written IEP (20 U.S.C.1401 [9] [D]; 34, RCNY 300.17. A board of education may be required to (J Education, 471 U.S. 359 [1985]; Florence County School. District Four v, Carter, 510. D'S. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education if complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably caulated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is 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 FAPE, (b) significantly impede 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 1415 [f]

[3] [E] [iii]

An appropriate educational program begins with an IEP that accurately reflects the results of to identify the student's needs, establishes .annual goals related .to those needs. (Application of a Child with a , Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with to be educated to the maximum extent, appropriate with their non peers" See Wazak v. Union Free Sch. Dist142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent School. Dist, 2007 WL 465211, at 10* [SD.N.Y. Feb. 9, 2007], citing Wazak. 2 F.3d at 122).

In determining an appropriate placement in the LRE; the IDEA requires that .children with be educated to the maximum extent appropriate with children who are and ·that classes, -separate schooling or other removal of children" with. from the regular educational environment may occur only when the nature or severity of the is such that education in regular classes with the use of cannot be d satisfactorily (20 U.S.C.1412 [a] [5] [5J [AJ; 8 NYCRR 200.6 [a] [1]; see also Shore Union Free School. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate. or master as much of the regular education curriculum as his or her peers (Daniel R.R. v. State Bd. of Educ. 1036. 1044 [5th Cir, I].

The fact that a student with a might make greater academic progress in a education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ. 1204, 1213 [3rd Cir. 1993]).The Daniel R.R. Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the ; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a can be educated satisfactorily in a regular class with everal factors should be considered including: 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. with no peers (Geer v. Rome City School, Dist.. 950 F.2d 688 [11th Cir, 1991]).

In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended program was Application. of a Child with a . Appeal No. 01'096).

When the Department concedes prong one, that it well settled law that the Department should be precluded from asserting a defense that the Parent's claim should be barred if equitable considerations do not favor the Parent. (M.H. and E.K. v. NYC Department of Education, reported at 2010 U.S. LEXIS 45400, S.D. of New York.) However in this case if I was to make a determination as to whether the Parent was cooperated with the Department and if there were any equitable considerations that would be a bar to an award supporting the Parent, I find that the Parent was cooperative.

The Board of Education may be required to reimburse parents for their expenditures for private educational services, obtained for students by his or her parents, 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 (Florence County School District No 4 v. Carter, 510 U.S. 7 [1993]' School Commissioner of Burlington v. Department of Education, 471 U.S. 359, 369-70.

As principle relief, the parent is requesting an order, directing that the DOE pay for tuition and related services at the “ ”. After hearing all the evidence, including testimony from director and the Parent, I find that “ ” is an appropriate placement for the student.

As the DOE has failed to provide an appropriate recommendation for the school tear at issue, I find d that the Parent’s unilateral placement was appropriate and provided with a meaningful education, wherein he made progress. The school was aware of ’s and developed an educational program. The school addressed his education, . He was provided with to address his deficits and it uncontroverted that made progress in all areas. was provided with qualified who had common goals in life for him and adequately addressed ’s education needs during the 2012-2013 school year”.

As stated above, I agree with parent’s counsel the equities in the instant case favor the parent. The fathers testimony was credible to establish that the Parents provided requested information to the CSE and in the event that the DOE found a placement for their child, they were ready willing and able to send him to a public school if an appropriate program was offered. I find that the Parents made reasonable efforts to investigate the recommended placement.

Accordingly, based on the weight of the credible evidence, I find that the Parents have met their burden with respect to prong two and three of the Burlington/Carter analysis, that the program they have provided for was uniquely devised to address his need in the LRE and therefore appropriate under IDEA and that the Parent has cooperated with the Department . I award full reimbursement for tuition at “ ” and for related services. Dated: September 7, 2013

_________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer GP: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 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’S EVIDENCE

Exhibit Name of Document Date PAGES A Impartial Hearing Request 1/8/13 (corrected) 2

B IEP 2/2/12 10

C FNR 2/7/12 1

D Class schedule 2012-2013 1 E Affidavit of Payment 1/9/13 1 F Proof of payment 2012-2013 14 G Enrollment Contract 6/15/12 2 H Letter to CSE from Parent 3/19/12 2 I Letter to CSE from Parent 8/22/12 2 J . Undated 1 K 2012-2013 6 L Letter to CSE from Parent 10/19/12 3