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: May 13, 2013

June 27, 2013

Actual Record Closed Date: August 8, 2013

Hearing Officer: Judith Schneider, Esq.

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

Advocate — Parents

(via telephone)

Mother — Parents

District Representative — DOE

Teacher Assigned-CSE — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2013

Advocate — Parents

(via telephone)

Mother — Parents

Director- — Parents

(via telephone)

Administrator, — Parents

(via telephone)

Dr. CSE Chairperson Designee — DOE

On May 13, 2013 and June 27, 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 proceeding was initiated at the request of the parent by correspondence dated January 10, 2013. (Ex. A) I was appointed Impartial Hearing Officer on January 11, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on February 13, 2013, the initial hearing was scheduled for May 13, 2013, the first mutually available date for the parties and the hearing officer.^[1]

The current compliance date is July 27, 2013. The record closed on August 8, 2013, upon my receipt of the final transcript.

Background 2

The student months old and entering the grade at the commencement of the 2011-2012 school year (10 month program) and was classified as speech or language impaired. (T. 29) Ex. 1) That classification is not in dispute. (T. 12) She has attended (“ ”), a private school which also provides a religious education in Judaic studies, since the grade. (T. 82, Exs. B, J) . She had previously which also provided religious instruction. (T. 158, Ex. 6)

The CSE had convened on June 1, 2011 to develop a program for the 2011-2012 school year, the student’s 11th grade) and recommended a 15:1 special class in a community school with related services (counseling - 1x60 therapy (“ ”) - 2x30 1:1 ) and test accommodations. Participants present were ”) as district representative and general education teacher , a social worker and a parent member. The parent, , the director of the school the student was then attending, and a parent advocate each participated by telephone. (T. 23-25, Ex. 1)

By letter dated August 2, 2011, the CSE recommended a placement at (Ex. D)

An undated executed contract with specifies that tuition for the 2011-2012 school year would be $30,000 plus various fees and $110 per hour for such counseling that would be provided for which the DOE would not pay. (Ex. H) charges were $3740. (Ex. I) The first payment was made by check dated May 12, 2011 and the parent provided post-dated checks for subsequent payments. (Ex. J) All payments made were for the Judaic studies portion of the program and no payments were made for “secular studies.” (Ex. J)

By letter dated August 22, 2011 (“the 10 day notice”) the parent notified the CSE that she would visit the proposed placement when the school was in session, could not at that time make a determination as to its appropriateness for the student and would enroll the student at and seek DOE funding if the placement was not appropriate. No objections to the program developed by the CSE were referenced or specified. (Ex. E)

The parent visited the school on October 4, 2011. By communication dated January 3, 2012, and transmitted to the CSE that date, the parent informed the CSE as to various objections to the proposed placement and informed it that the student would attend and funding by the DOE would be sought through the impartial hearing process. (Ex. D)

Positions of the Parties

The parent asserts that the DOE failed to provide a FAPE for the 2011-2012 school year. She claims that the IEP is procedurally and substantively defective and claims specifically the absence of appropriately current evaluative material, inadequate goals, the absence of adequate descriptive material in the IEP and the absence of information with regard to related services needs. Further, the parent claims that the placement offered was not appropriate. The parent asserts that unilateral placement was appropriate. Further, the parent claims that there are no equitable considerations to bar or limit funding by the DOE. The parent seeks DOE payment for $30,000 plus $3740 for counseling provided. (Exs. H, I) Reimbursement and/or direct funding is requested. (T. 10-12, Ex. A)

The DOE asserts that it provided a FAPE through an IEP that procedurally complied with all requirements and was substantively appropriate and with the provision of an appropriate placement. Further, it claims that objections to placement were not adequately raised in the complaint. The DOE further claims that the parent’s placement was not appropriate and that, in any event, equitable considerations warrant denial of DOE funding. (T. 13-15, 160)

Cases Presented

A list of documents submitted is appended.

The DOE’s sole witness ”), who participated in the review as district representative and general education teacher. (Ex. 1)

The parent presented the testimony of: , the director of “the director”); , TM administrator (“the administrator”); and, the student’s mother (“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 Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

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 procedures, 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 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. 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]).

was the sole DOE witness with regard to the review. He stated that he recalled only parts but not all of what occurred. (T. 38)

testimony indicates that the CSE relied solely upon an observation conducted for the review, dated May 9, 2011 and from information provided by the director at the meeting. (T. 28, 30) He stated that the director had reported concerning the student’s social interactions with peers, her need for redirection and extra time and the fact that the student would shut down when she did not perform to her own standard as referenced in the IEP. (T. 39-40, Ex. 1) The observation reported that she was quiet in speech and participated in class as reported in the IEP. (T. 30, Ex. 1) The director had also reported with regard to the student’s functional levels and that information was included in the IEP. (T. 28-30, Ex. 1) Goals were developed after the review from information provided by the director during the review, recorded in notes at that time by the team. (T. 33) With regard the program recommended, stated that he believed that the recommendation was appropriate in view of the student’s academic functioning levels noting with regard to that that characterized as the only alternative, was not appropriate. (T. 42-43, 49-50)

With regard to information considered by the CSE, I note that the student’s teacher was not present, there is no evidence that any written teacher report was considered by the CSE and there has been no teacher report submitted in this proceeding.

(T. 37) Further, I am not persuaded that any counseling report was considered in the review or that necessary information was provided. JS had no recollection as to that and the counseling report submitted in this proceeding was undated and includes a recommendation that was, without any explanation having been proffered in this proceeding, not adopted by the CSE. (T. 37, 45-47, 51 Ex. 5) I find no basis for concluding that Ex. 5 relates to this review. I also note that a May 19, 2011 classroom observation was conducted for the review but was not submitted in this proceeding. (Ex.

1) had no knowledge as to whether the social worker who conducted it was the same social worker who participated in the review and that cannot be determined in the absence of the report. (T. 31-33) Further, the only information JS could provide concerning the observation’s contents was the brief reference in the IEP. (T. 31) Although the student was classified as and the CSE recommended report having been considered and testified as to his belief that the classification/recommendation was due simply to the absence of information providing a reason to change it. (T. 38, 40) There was no indication as to any source for the goals but for the discussion at the meeting as described above.

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. In the instant matter, the DOE has not demonstrated that the CSE relied upon adequate evaluative material. Further, I note that there is no indication that the student was known to any team member. Moreover, although not necessary for my determination, I note that the evidence indicates that this was a triennial evaluation as claimed by the parent and not an annual as asserted by JS. (T. 25, Exs. 2, 6, A)

I conclude that the DOE has failed to establish that the program it recommended was reasonably calculated to enable this student to make meaningful educational gains and therefore has failed to establish it provided a FAPE. Accordingly, I do not address the parent’s other claims with regard to a denial of a FAPE.

Prong 2

When a public school system has failed to provide a 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 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 director testified that is certified by the State of New York as a high school with the option of a modified curriculum. (T. 68) It has some 30 students, all girls, from 11 to 20 years old, in its high school division with one class per grade, and also has 8 girls in intermediate school. (T. 67, 117-118) Disability classifications are largely learning disabled and speech/language impaired. (T. 120) Classes are no more than 10 but average 7-8 students. (T. 98) As the students advance in grade there is more emphasis on providing “life skill oriented subjects.” (T. 68) This student is in an Regents Competency Test (“RCT”) curriculum program. (T. 69) Instruction was provided one to one, in groups and for the whole class depending on the subject. (T. 72-73, 119) However, math, reading and writing are basically provided one to one with an individualized program where students work independently and progress tracked with regard to attainment of specific skills. (T. 121, 126) Student testing is individualized for all instructional areas. (T. 73-74, 119) The director met with students individually at least every two-three weeks to discuss problems inside and outside of school. (T. 76) A licensed certified social worker and the director meet on an ongoing basis to discuss the students and share particular information concerning this student on an ad hoc basis. (T. 93-94) Students are tested at the beginning of the school year with “standardized” and at the end of the year by evaluating their progression with regard to skill acquisition with grade levels estimated. (T. 81, 83-84) A focus of the effort with regard to this student encouragement of social interaction with other students. (T. 70) The student received counseling. (T. 72, Ex. G) It was asserted that progress socially and with regard to her academic insecurity was demonstrated by her election as president of the student association. (T. 76-77) Progress academically was demonstrated by her passing three RCTs as well as by increased math, reading comprehension and writing competence. (T. 78)

However, I note with regard to progress that although progress in a private school is a relevant factor that may be considered in determining whether a school is appropriate, it does not suffice to demonstrate that a placement is appropriate and that the DOE may be required to fund it. Gagliardo, 489 F. 3d at 115. Further, in this matter there is no documentary evidence whatever, even anecdotal, supporting the claims of progress. I also note that the standardized tests alleged to have been utilized were not identified, the other evaluative material was not significantly described or identified and the actual degree of progress claimed was not stated but for math. (T. 78) Accordingly, the evidence of progress was conclusory.

With regard to an evaluation of the program generally, I note specific curricula materials utilized were not identified and specific instructional methodology was not identified. (T. 129)

I also note that although it is well established that not every teacher in a parent’s placement is required to have special education credentials, in the instant matter there is no indication that this student’s teachers have any appropriate education, training or experience. (T. 100) Indeed, with regard to education it cannot be concluded that they have anything beyond high school degrees and, further, there is no indication as to whether those were Regents degrees or otherwise. (T. 100-101) The director testified that he supervised the teaching staff. However, in the absence of qualified teachers, I am not persuaded that that is adequate supervision has been demonstrated. I note that although descriptive literature in evidence indicates an educational consultant, that document is undated and there was no testimony concerning that person or other relevant staff. (Ex. B) Moreover, although I am persuaded that the director has certain special education teaching credentials, the record does not support a conclusion those credentials are for high school grades. (T. 65, 114) I also note that there is nothing in the record indicating ongoing staff training in house or otherwise, especially critical in view of instructors’ lack of education credentials and in the absence of a demonstration of appropriate experience. Further, there was no testimony with regard to credentials of persons teaching specialty areas and there was no indication that the teacher of the Social Comprehension course had any credentials or training with regard to instruction in appropriate social behaviors.

(T. 105-107)

Finally, it is well established that a parent’s placement is not required to provide every service specified on the IEP. However, it is noteworthy in considering the placement that although the director acknowledged student deficiencies in issues and did not dispute the appropriateness of the classification, no is provided in the school and the director had no knowledge as whether there was outside therapy provided. (T. 91-92)

I conclude that the parent has not met her burden to demonstrate that the program she selected was appropriate.

Although not necessary in view of the foregoing finding, I also note the following with regard to the amount of the DOE funding sought.

There was no claim that the social worker’s compensation rate was consistent with the authorized DOE rate and no explanation for the $110 per hour rate that was charged for that service. I find that portion of the fee that exceeds the DOE authorized rate excessive. (T. 93 , 144, Ex. I )

Further, the evidence indicates that the religious portion of the school day (Monday-Thursday) was very substantially the morning portion of the school day and continued until lunch. (T.101-106, 110,126 , Ex. F) I am not persuaded that the focus of certain of the morning classes was not intertwined with and supportive of the religious classes. I note for example that it was acknowledged that the Ancient Civilizations course included references to religious events (T. 104-105) The determination that only $9000 of the $30,000 tuition charged was for religious subjects, I find not supported by persuasive evidence but rather conclude that only 50 % of the program could be properly deemed secular studies and public funding permitted should that portion of the program be deemed to be otherwise appropriate. Prong 3 Although not required in view of the foregoing findings, I make the following findings with regard to the equities. The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. The DOE has the burden of proof with regard to equitable considerations. Educ. Law 4404 [1][c]

There is no claim or evidence that the parent did not cooperate with regard to the preparation for the CSE review. However, with regard to the June 2011 meeting, I note that although the parent testified that she disagreed with the CSE, there is nothing in the record indicating that she ever informed the CSE with regard to that. (T. 158-159) Indeed, recalled no objection made, at the review and the director did not testify as to any. (T. 36) Further, the 10 day notice did not specify any disagreement with regard to any aspect of the development of the IEP or to the program but related only to the placement (Ex. E) Accordingly, the CSE did not have an opportunity to remedy any defects in its IEP prior to the student’s enrollment in the unilateral placement.

With regard to the placement, I credit the parent’s testimony that she sought to visit the school prior to October but could not due to circumstances beyond her control.

(T. 165) However, the evidence in the record indicates that notification to the CSE as to her observations and conclusions was not made until January 2012, some three months later. (Ex. D) No explanation has been proffered for that delay which again denied the CSE an opportunity to consider her objections.

Finally, although the parent testified that she was willing to accept a DOE placement, she stated that she was unwilling to have the student placed in a class that did not meet the student’s educational needs and that those needs included religious instruction. (T. 174) Further, she stated that a school program that did not enable the student to have a short day on Friday was unacceptable. (T. 175) These limitations, I conclude, could not be complied with by any public placement. Accordingly, no placement the DOE could have offered, regardless of the program, would have been acceptable to the parent.

In the foregoing circumstances, I find that equitable considerations support a denial of DOE funding.

Prospective Funding

The parent’s claim of entitlement to prospective funding will not be considered in view of the foregoing.

ORDER

This matter is DISMISSED. Dated: August 27, 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 IEP, 6/1/11, 17 pgs. Department of Education

2 Report, 3/5/08, 5 pgs. Department of Education

3 WITHDRAWN

4 Observation, 5/13/09, 1 pg. Department of Education

5 Report, undated, 1 pg. Department of Education

6 Social History Report, 3/18/08, 2 pgs. Department of Education

7 Comprehensive Evaluation, 3/21/07, 5 pgs. Department of Education

8 Final Notice of Recommendation, 8/2/11, 1 pg. Department of Education

A Impartial Hearing Request, 1 /10/13, 6 pgs. Parent

B Program Description, 1 pg. Parent

C Board of Education IEP, 6/1/11, 17 pgs. Parent

D FNR, 8/2/11, 2 pgs. Parent

E Ten-Day Notice, 8/22/11, 2 pgs. Parent

F Class Schedule, 2011-2012, 1 pg. Parent

G Related Service Counseling Sched., 2011-2012, 1 pg. Parent

H Enrollment Contract, 2011-2012, 1 pg. Parent

I Related Service Affidavit, 7/9/12, 2 pgs. Parent

J Affidavit of Payments, 8/12/12, 1 pg. Parent

K Parent Proof of Payments, 2011-2012, 11 pgs. Parent

L 2011 Parents Income Tax Return, 2 pgs. Parent

M Attendance Record, 2011-2012, 1 pg. Parent I Prehearing Conference memo,1 pg. Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer

Footnotes

[1] The initial compliance date in this matter was March 27, 2013. The parties moved to extend the compliance date on various occasions in light of the illness of the parent’s representative, the scheduling of witnesses and submission of evidence. 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 this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were provided to the parties. (T. 11, 16, 52-53, 60, 178, Ex. II) Factual specifications in this section are included herein as Findings of Fact.