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: ne 26, 2013

Actual Record Closed Date: September 1, 2013

Hearing Officer: Gary Peters, Esq.

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

Sonia Mendez-Castro Attorney — Parents

Dept. Designee — DOE

Mother — Parents

Father — Parents

INTRODUCTION

On the above date, I conducted hearings, 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 #143570. The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing on February 7, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee, , and the parent was represented by their attorney Sonia Mendez-Castro Esq.

BACKGROUND

The student is currently an year old male who is classified with . On May 23, 2012, the Committee on 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 a .

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 utilize education techniques to address the need for the children; additionally, the Parents claimed that they attended all meetings, provided documents, were cooperative and are seeking reimbursement for tuition at “ ”.

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 the was an appropriate placement and if equitable considerations favor the parent.

THE PARENT’S CASE

testified after being duly sworn that he has a bachelor's degree in and a master's in degree in educational with a ization in ; he also has a second master's in education and is licensed in the City of New York as a education teacher. Additionally, he has a third advanced masters and a professional diploma in school , and is certified permanently as a school in the State of New York.

The witness has been with for about 15 years and serves in a variety of ways. He is a school and does ; he is on the school-based support team, and acts as a resource “for many of our teachers who also work in the , our learning program, as well as our . In the mainstream, I not only do individual or small-group , but I also push into classes as learning ist and work directly with many of our learning- population in direct intervention. I help coordinate meetings for all our staff and service coordination. I also teach some education classes at times and work in the mainstream, so I have a multi-tiered role here in the school. I also work on CSEs, etcetera” (T. page 6 and 7).

The witness described as a small, independent school with a child centered--a student-centered focus, geared for making a very sensitive learning environment. “We are very adaptive to what the families' and students' needs are as well as what their postsecondary goals are, whether that is vocational track or for college” (T. page 7).

Mr. stated that the school has lot of flexibility in our program. “If a student has a particular strength in an area, they could pursue more advanced courses or even up to AP courses in that track or mainstream or inclusion classes. If they have a student with , they will get extra support in the area of difficulty, and their courses are—we always aim for a , so that way if a student demonstrates a strength, even though they have a deficit in another area, they might be--after consultation with teachers and their parents and the staff to see if they could be mainstreamed or included into a more advanced class” (T. page8).

The witness stated that is enrolled in the , which is a learning program; there is also an Program, for students who need some extra supports and modifications and a mainstream or advanced track program. There are approximately students in the entire school; however it varies from year to year. The students ages are generally years old; in the they are grouped within their classes in the by taking “a lot of different factors into consideration, their level of , their reports from their prior teachers, their prior school if they are transfer students (T.page9).Additionally, “there is curriculum-based assessment for that as well or if they've had testing from a prior time, either from a triennial or from some in house testing”.

The witness stated that there are support classes in ; there is a multi-modal approach and relating it to not only current events, but also to the context of the state exam like the global history Regent (T. page 12).

Mr. stated that there is a class called the planning and organizational period, which every student attends, and “that's at the end of every day, a period, where they work on homework of the day, recent assignments, a test coming up, projects, and so we train them in how to use a … it's all embedded into their program, so that way they get many of the skills that they'll need to generalize in higher grades and post-secondarily”

(T. page 13)

The witness is familiar with , as he has been his for three years. He taught him in his freshman year in , and has observed him in multiple classes and pushed into his classes. He stated that is the of the , and has been an active participant since his first year, and “so he's worked very closely with So I get to see him pretty regularly working with that, and inside—during school and outside of school, and he's also a member of my which I have four times a , so he's a regular attendant of that, and we or at lunchtime”

(T. page 14).

The witness was directed to exhibit “H” which was ’s class schedule, he stated that the first period teacher was The witness stated that “I'm not sure which he was taking, but what it means is that the pace of the material being presented is slowed. They use lots of board and bringing students up to actually . I know that's when he was doing . The teacher modifies the material and then relates it back to the and the . “So she does--there's a lot of modification. She gives extended time on assignments. also gets He also takes his exams in a separate location, and sometimes he read to him; there were approximately

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, , 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 calculated 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 Walczak v. Union Free Sch. Dist142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with in the "least 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 Walczak. 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 supplementary aids and services 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 aid of supplemental aids and services; 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 supplemental aids and services, several 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 benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. language and role modeling 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).

I agree with Parent's counsel that 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.

.

Additionally, Parent’s counsel stated that the testimony established that the parents unilaterally placed their son, when it became painfully clear that the DOE simply did not have a program for a student like , who is bright but plagued by all of the typical issues of the diagnosis. Due to their efforts as well as the efforts of programs designed specifically for students with his , has made significant strides.

For the 2012 school year, the CSE held a meeting for , which resulted in a program recommendation in , a school that has about . The District has conceded that they did not offer an appropriate program.

The parents' actions in considering the program and visiting the program and letting the CSE know that she had specific concerns about the size of the program that was being recommended as well as a cooperation with the CSE at every point. Currently, he is in a very placement, as per the testimony of . It is a setting that contains approximately , so it's a very supportive and safe environment. It is in this environment, where has excelled

As the DOE has failed to provide an appropriate recommendation for the school year at issue, I find that the Parent’s unilateral placement was appropriate and provided with a meaningful education, wherein he made progress. was aware of ’s educational needs and developed an educational program to prepare him for to become an . The school addressed his education, academic and social needs. He was provided with small group instruction and thrived in the program.

As stated above, I agree with parent’s counsel the equities in the instant case favor the parent. The mother testimony was credible to establish that she provided requested information to the CSE, in the event that the Department found a placement for her child. She was ready willing and able to send her child to a public school if the appropriate program was offered. The parent participated in the CSE meeting and freely exchanged information and produced documents requested. I also find that she made reasonable efforts to investigate the recommended placement.

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 the classroom teacher, curriculum director and that Parent, I find that “ ” is an appropriate placement for the student.

Accordingly, I order tuition reimbursement for the 2012-2013 school year as stated in my order. Dated: September 9, 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 Notice of request for Transportation 8/22/12 4 B Request for Impartial Hearing 2/7/13 9 C Parent Letter to District 8/16/12 1 D Enrollment Contract 3/28/12 2 E Cancelled Checks various dates 3 F Program Overview Undated 3 G Report card 2012-2013 1 H School schedule 2012-2013 1