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: February 8, 2013

February 13, 2013

March 13, 2013

Actual Record Closed Date: March 26, 2013

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRYARY 8, 2013

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRYARY 13, 2013

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2013

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Assistant Head of School (Via Telephone) — Student

Attorney — DOE

Special Education Teacher (Via Telephone) — DOE

INTRODUCTION

On January 10, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of Skyler W. (“SW”).

BACKGROUND

old student who has been unilaterally placed by his Parent at (“ ”) and has attended the private school since 2006 (Ex. 9) The student is classified as This classification is not in dispute. On 6/12/12 a meeting was held to develop an individualized education program (“IEP”) for SW for the 2012-13 school year. An IEP was developed which recommended a special class in a community school with related services of therapy (“ST”), counseling services and hearing education services as well as assistive technology in the form of an FM unit. (Ex. 7). The Parent received a placement recommendation for . (t. 137) On January 9, 2013 a due process complaint (“DPC”) (Ex. 9) was filed asserting that the student has not been provided with a free and appropriate public education (“FAPE”) in that the student was overdue for a triennial review; the IEP fails to set forth evaluative criteria, evaluation procedures and schedules to be used in measuring the student’s progress towards meeting his annual goals; the 15:1 recommendation is too large; and the goals and promotion criteria are not realistically attainable for the student. In addition the DPC asserts that the recommended placement is not appropriate. The Department of Education (“DOE”) maintains that the student was provided with FAPE for the 2012-13 school year.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An IEP meeting was held to create an IEP for the 2012-2013 school year. attended the meeting as related service provider/special education teacher. (Ex. 7) Ms. did not have an independent recollection of the IEP meeting even when she was shown the documents in evidence and asked if they refreshed her recollection. (t. 52 ) She later testified that she did have an independent recollection of the IEP meeting. (t. 71) She testified to each document she was asked about that if it was in the file that they reviewed it and that whatever was in the file they had access to that document but was never able to state that any one document was actually in the file. (t. 48-59). She was also unclear on what school year was at issue, sometimes stating 2011-12 and others 2012-13 (t. 47-48, 73, 94)

The goals are developed as they are most familiar with the student and they go through each goal to see if the student has progressed, if it needs to be modified and whether the Parent agrees with the goal. Ms. testified that the IEP is in fact developed by and that they bring a sample with them and the IEP team finalizes it (t. 61, 75) The criteria and accuracy were at 80% and that is a DOE and/or State requirement that it is inserted with the goals in the IEP. does not use the same criteria to assess their students. (t. 62) While Ms. testified that the Parent and the school agreed with the use of the criteria and with the goals (t. 63-64, 79-81) the Parent testified that the 80% criteria was too high and that she disagreed with it. (t. 140) Ms. further testified that the promotion criteria was attainable and that the school and the Parent developed it. Ms. refers to the fact that is not alternate assessment and has testing accommodations and that if the school felt that the student could not take a test he would have been alternate assessment and not taken standardized tests. (t. 67-68) At one point she testified that the student is not deaf in response to a question about a communication device (t. 88) despite the fact that the classification is hearing impairment and the student uses a communication device. When asked if there was discussion about the FM unit and whether she had independent recollection or was it from looking at the IEP Ms. testified that she had to look at the IEP but if it was in there it had to have been discussed. (t. 99) A program was recommended which Ms. testified was not that different from the size classes that the student was in at . She testified that in public high school is what is available and that would be able to do well in that setting. (t. 77-79) The Parent disagreed with the recommendation and stated at the IEP meeting that she believed that her son needs a lot of hands on attention. (t. 140, 144) The Parent testified that at the meeting she wanted to know what the educational goals were, whether they would be realistic and how her son could achieve those goals. She further stated that she wanted them to find an educational program that will work for . (t 146-47)

A letter was sent by , Esq. to Gerard Donegan dated 8/22/12 (Ex. E) stating that the parent did not believe that a 15:1 would be appropriate for but had received an FNR and would visit the school. The Parent attempted to visit the school and found it was closed and would visit the school in September when school reopens. In addition the Parent was planning to return to , however if the recommended program was appropriate she would withdraw from and send him to the recommended placement. The Parent visited the school, in September. The Parent went in September so that she would be able to speak to the staff and see and the student body. (t. 148) The Parent met with the Assistant Principal for special education, spoke to some teachers, and saw some classes. She states that she discussed the assistive technology that uses and was put off that they were unfamiliar with it. She felt that the acoustics of the building would be bad for her son because of his and hearing aids. She also felt that there was not enough structure. (t. 137-38) The Parent testified that even though she did not believe that a program was appropriate she visited the program in “compliance with the law”. She met with the principal and staff to see exactly how they would help and implement his IEP. It was after she had gone to the school that she really knew that it was not an appropriate placement. (t. 149-51) On 9/9/12 , Esq. sent a letter to CSE 9 and informed them that the Parent had visited the school and found that it was not an appropriate placement for the student and that would be returning to . (Ex. F)

On 4/16/12 the Parent signed an Enrollment contract for the 2012-13 school year. (Ex. B) The tuition is 48,500 per school year. The terms of the contract allow for payment to be deferred if the Parent were going to pursue her due process rights to seek direct or prospective tuition funding from the DOE. She testified that she did not mention that the IEP meeting that she had signed the enrollment contract because no one had asked her. (t. 147) The Parent stated that both she and receive Social Security Disability (Ex. C & D) and that she has no other sources of income. The Parent testified that she was aware that she was responsible for the tuition if she loses an impartial hearing but conceded it would be a hardship to do so. (t. 141-42) There was no dispute that the Parent would be unable to pay the tuition.

The student currently . Ms. is the students English and social studies teacher and has taught him since September 2012. In both classes there are 12 students, 1 teacher and 1 assistant teacher. In addition, ’s hearing specialist pushes in to class once a week. Generally the classes are taught with a mini lesson and then the students work in small groups or partners and receive individual supports. receives one on one support multiple times a week. (t. 103-04) is currently reading at a late seventh grade, early eighth grade level. Ms. uses informal assessments and classroom observations to establish his reading level. (t. 105) She testified that gets a lot of support from both herself and the assistant teacher. Because of his learning style and his auditory deficits he needs, on a daily basis, one of the teachers to check-in because he won’t always ask for help when he needs it. (t. 107) Ms. testified that is making progress, is increasing his self correction and has shown improvements in his ability to pull information from a variety of sources and organize it in to a multi-paragraph essay. (t. 109) He is making progress in both reading and writing. He is making progress in math as well based on standardized tests as well as what his teacher observes in class. In addition he is more independent in his academic strategies as well as growth in his social skills. (t. 121) brings his FM unit to class but sometimes needs reminders to use it, and sometimes he forgets to charge it. (t. 113).

has a transition department which consists of 3 social workers and community inclusion assistants. They act as job coaches, support travel training and internship sites. ’s transition class is a career seminar class, he also has an internship and additional travel training experiences.

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable to a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that the DOE failed to provide the student with FAPE for the 2012-13 school year based on the failure of the DOE to craft an appropriate IEP which would offer personalized instruction with sufficient support services to permit to benefit educationally. The Parent argues that the assessment of goals and criteria to were too high and that the recommended program was not reasonably calculated to confer an educational benefit.

The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). It was clear through the testimony of the IEP witness for the DOE, Ms. Alvarez that she had no independent recollection of the meeting and that her recollection of the meeting could not be refreshed by reviewing documents. She engaged in circular reasoning, as in the document must have been in the folder, so we must have reviewed it because it must be in the folder. She also was unclear on what school year was at issue and the student’s disability. While it is understandable that after attending many IEP meetings in a year a person may need to refresh their recollection. However, in this instance I do not credit the testimony of Ms. regarding what discussion was had, and what objections or comments the Parent or teachers and/or representatives may have made and whether their input was considered.

In addition, I find that the DOE failed to provide FAPE for the 2012-13 school year based on the failure of the DOE to offer an appropriate placement.

The DOE offered no direct testimony about the actual recommended placement which was offered to the student or that said placement would be able to implement the IEP. It is incumbent on the school district to identify a school which is capable of implementing the IEP. TY v. NYC DOE, 584 F.3d 412 (2d Cir. 2009) The DOE takes the position that they do not have to present the testimony of a placement witness because the speculative allegations of the Parent do not warrant such a witness. The DOE relies on R.E. v. New York City Department of Education, 694 F.3d 167 (2012) The case at hand is distinguishable as this is not a case where an attempt is made to rehabilitate a defective IEP with retrospective testimony of what the recommended placement would have been able to do to cure those deficiencies. The court in RE also notes that a claim that the IEP would not be able to be effectively implemented cannot be supported by speculative evidence that the District will not adhere to the IEP. In the instant case the Parent raises issues concerning the recommended program. There is nothing in RE which relieves the DOE of the responsibility to show that the placement offered would be able to effectively implement the IEP. If that were the case, taken to its logical conclusion, a school district could load up an IEP with all sorts of services and accommodations and never have to show that they were able to actually provide an appropriate placement. The question at issue is whether the student was provided with FAPE and testimony and/or evidence regarding the recommended placement is an integral part of making that determination.

I find that failure to provide an appropriate IEP and placement for is a denial of FAPE.

I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find the testimony, and evidence submitted by the parent support this finding. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. I found the testimony of the Parent, the teacher and administrator for Cooke credible. The testimony supported the Parents position that the student is progressing socially and academically. The testimony supports a finding that the school has crafted an individualized program that meets the student’s academic and social/emotional needs. While the program must be one that is reasonably calculated to produce educational benefit for the student it need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G., 459 F3d at 364-65. The DOE did not address the curriculum at in a substantive way.

The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the Parent cooperated fully with the IEP process. The Parent participated in the IEP meeting and I credit her testimony that she raised issues regarding the criteria measurement and the program recommendation. The Parent signed a contract prior to the IEP meeting and testifies that she did not mention it at the meeting because no one asked. In view of the fact that the student had since 2006 and employees participated in the meeting it is unlikely that any of the participants would be surprised to learn of such an event. The contract itself allows the Parent to defer payment if they plan to exercise their due process rights as well as to be released from the contract if the DOE offers an appropriate placement and the Parent accepts such placement prior to October 31, 2012.

The Parent notified the CSE of her intent to view the recommended placement at the beginning of the school year in the letter dated 8/22/12. (Ex. E) She further gives notice of her intent to return if the recommended placement is not appropriate. In the letter dated 9/9/12 (Ex. F) prompt notification is given that the Parent visited the program and found it to be inappropriate and gave reasons for her belief that it was not appropriate. I find the Parent credible and that the Parent fully complied with the CSE. In view of the foregoing I find the equities favor the position of the Parent.

ORDER

Therefore, it is hereby ordered that the Department of Education shall provide retroactive, direct payment of the tuition at for the 2012-13 school year in the amount of $48,500. Dated: April 4, 2013

JEANNE M. KEEFE, ESQ,

Impartial Hearing Officer

WS:gc

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 ON FEBRUARY 13, 2013

A. Findings of Fact and Decision, dated 5/20/09, 11 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 13, 2013

B. Enrollment contract, dated 4/16/12, 2 pages Parent

C. Social Security Administration letter, dated 7/13/12, 1 page Parent

D. Social Security Administration letter, dated 7/13/12, 1 page Parent

E. Letter from , dated 8/22/13

with fax receipt, 2 pages Parent

F. Letter from to CSE dated 9/9/13 with fax

receipt, 2 pages

G. Progress Report 2011-2012, 20 pages Parent

1. Vocational Assessment, dated 1/13/10, 2 pages District

2. Classroom Observation, dated 10/21/11, 2 pages District

3. Audiologic Evaluation and Hearing Aid Check, dated 3/2/11, 3 pages District

4. Comprehensive Evaluation, dated 3/15/11, 4 pages District

5. Comprehensive Evaluation, dated 4/16/11, 5 pages District

6. Child & Adolescent Health Examination form, dated 4/17/12, 3 pages District

7. IEP, dated 6/12/12, 21 pages District

8. Due Process Response, dated 1/11/13, 3 pages District

9. Due Process Complaint, dated 1/9/13, 3 pages District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page