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 11, 2012

August 14, 2012

September 19, 2012

November 28, 2012

January 3, 2013

February 6, 2013

Actual Record Closed Date: February 11, 2013

Hearing Officer: James Mckeever, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2012

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2012

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19,

2012

ESQ., Attorney — Student

Parent/Mother — Student

Committee on Special Education Three — DOE

District Representative — DOE

Guidance Counselor, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28,

2012

Attorney — Student

Mother — Student

CSE, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2013

ESQ., Attorney — Student

Parent/Mother — Student

Special Education Teacher, — Student

Special Education Teacher, — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2013

ESQ., Attorney — Student

District Representative — DOE

PROCEDURAL BACKGROUND

The parent filed an initial Due Process Complaint (DPC) on June 29, 2012. A pendency hearing was held on July 11, 2012. A pendency Order was issued on July 17, 2012. On July 20, 2012, the parent filed an Amended DPC. The resolution period expired on August 19, 2012.

On August 14, 2012, the parent and the Department of Education (DOE) requested a 30-day extension of the compliance based on the availability of their witnesses. I determined that there had been no prior requests for an extension and that the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to October 8, 2012.

On September 19, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior request for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to November 8, 2012.

On November 9, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses due to Hurricane Sandy. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to December 8, 2012

On November 28, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses due to Hurricane Sandy. I determined that although there had been a prior request for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to January 9, 2012

On January 3, 2013 the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to February 8, 2013.

On February 6, 2013 the parent and the DOE requested a 30-day extension of the compliance date in order for the parent to submit a post hearing progress report. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to March 8, 2013.

FINDINGS OF FACT

Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:

The Student is a classified as a child (See, Individualized Education Plan (IEP), dated April 24, 2012 at Exhibit 1). The Student presents with and , inter alia.

On April 24, 2012, the DOE’s Committee of Special Education (CSE) generated an Individualized Education Program (IEP) that recommended placement in a special class in a community school with related services of therapy and (Exhibit 2).

A Final Notice of Recommendation, dated June 8, 2012, assigned the Student to a District , class at (Exhibit A).

During the 2011-2012 school year, the DOE placed the Student pursuant to a Nickerson letter at , which is a state approved, non-public school (NPS) (Exhibit A, Tr. 65).

The DOE witness who testified at the impartial hearing was a guidance counselor at the District , which is the school that was recommended for the Student during the 2012-2013 school year (Tr.27). The guidance’s ’s responsibility is to provide mandated sessions to students based on their IEPs. The guidance counselor also provides school tours for prospective parents, although he did not recall providing a tour to the parent in this matter (Tr. 29-30). The guidance counselor does not hold a special education certification and was not familiar with whether all of the classes at the subject school utilize applied behavior analysis (ABA) and/or TEACCH to address the academic needs of their students (Tr. 46). The guidance counselor testified that all students undergo a functional behavior assessment upon admission to the school (Tr. 36).

The DOE did not offer testimony at the impartial hearing with respect to the Student’s IEP (See record generally).

By letter, dated June 18, 2012, the parent advised CSE that she disagreed with the IEP dated April 24, 2012 and that until she had an opportunity to view the proposed school, she would continue to enroll her son at for the 2012-2013 school year (Exhibit H).

After the conclusion of the hearing, the parent, with the consent of the DOE, submitted a progress report by the Student’s outside provider (Exhibit I). The parent testified that she believed that the Student required the additional services, which are provided outside of (Tr.66).

CREDIBILITY FINDINGS

I find that all of the witnesses’ who testified at the impartial hearing, testified in a credible manner.

CONCLUSION OF LAW

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a Free and Appropriate Public Education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth 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, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404). I find that based on the following, the DOE failed to meet its burden of proof with respect to demonstrating that the Student was offered a FAPE for the 2012-2013 school year.

Here, the DOE witness who testified at the impartial hearing was a guidance counselor at the District school that was recommended for the Student during the 20122013 school year (Tr.27). The guidance’s ’s responsibility is to provide mandated counseling sessions to students based on their IEPs and provide school tours for prospective parents, although he did not recall providing a tour to the parent in this matter (Tr. 29-30). The guidance counselor does not hold a special education certification and was not familiar with whether all the classes at the subject school utilize and/or TEACCH to address the academic needs of their students (Tr. 46). Additionally, the guidance counselor was not familiar with the Student in this matter (Tr. 36-41) and the DOE did not offer any testimony with respect to the appropriateness of the Student’s IEP. Accordingly, based on these facts, I find that the DOE failed to meet its burden of proof with respect to demonstrating that the Student was offered a FAPE for the 2012-2013 school year. PARENT’S PLACEMENT AT THE PRIVATE SCHOOL:

As indicated above, during the 2011-2012 school year, the DOE placed the Student at , which is a state approved NPS, pursuant to a Nickerson letter (Exhibit A, Tr. 65). The parent requests that the Student remain at for the 2012-2013 school year (Exhibit A). Significantly, no evidence was offered to support DOE’s position that the change in the Student’s placement from to class in a District school was appropriate. Since is a state approved school, the parents contend that they do not have the burden of proving the appropriateness of . As indicated above, the student was initially placed at by the DOE during the 2011-2012 school year as per a Nickerson Letter. In Application of a Child with a Disability, Appeal No. 92-43 the School Resource Officer (SRO) found that the parent did not need to establish that a state approved school was appropriate for the child under the Burlington criteria, after she won her argument that the proposed change to the student’s program was not appropriate for the student. In Application of a Child with a Disability, Appeal No.12-062, the SRO found that the parent did not have the prong II burden of showing the appropriateness of the student’s current placement at a New York State approved private school after they demonstrated that the DOE’s recommended change in placement was inappropriate. Here, the evidence shows that although the DOE recommended a change in the Student’s placement to a at a District school, the DOE did not present a witness defend the IEP. As such, since it is undisputed that is a New York state approved NPS and because the DOE funded the Student’s placement at during the 2011-2012 school year, I find that the parents’ do not bear the burden of demonstrating the appropriateness of (Application of a Child with a Disability, Appeal No. 92-43 ). Accordingly, the parents’ request for an Order directing the DOE to fund the Student’s placement at for the 2012-2013 school year is granted. PRIVATE SERVICES:

The parent requests reimbursement for private speech and language services that the Student receives outside during the 2012-2013 school year. Although the parent submitted a progress reported authored by the Student’s current (outside) provider, no other evidence, with the exception of the parent’s testimony (Tr.66), was presented to support the necessity of the additional . As such, the parent’s request for reimbursement services that the Student receives outside during the 2012-2013 school year is denied. Additionally, although the parent also requested that the DOE fund these services as compensatory educational services based on a denial of FAPE during the 2011-2012 school, I find that this claim is beyond the scope of the DPC, which clearly challenged the appropriateness of the Student’s IEP for the 2012-2013 school year (Exhibit A). As such, the parent’s request for reimbursement for private services as compensatory educational services is denied.

ORDERED

The Department of Education shall fund the Student’s placement for the 20122013 school year.

The parent’s request for reimbursement for private services in denied. Dated: February 21, 2013

JAMES MCKEEVER, ESQ.

Impartial Hearing Officer JM;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 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

Parent’s Exhibits:

A Hearing Request, dated 6/27/12, 3 pages

B Nickerson letter, dated 8/18/11,2 pages

C Amended hearing request, dated 7/20/12,3 pages

D educational progress report, dated 3/30/12, 5 pages

E report, dated 3/2/12, 3 pages

F progress report, dated 3/30/12, 3 pages

G report, dated 9/28/11, 2 pages

H Letter from parents to CSE, dated 6/18/12, 2 pages

I Referral Form, dated April 24th, 2012, one page

J Teacher Report dated November 15th, 2012, one page

K Report, dated November 6th, 2012,one page

L Report dated November 6th, 2012, one page

M Receipts , November 4th through December 4th,

2012, one page

N Report- dated 1/25/13 1 page

District’s Exhibits:

1 IEP, dated 4/24/12, 15 pages

IHO Exhibits:

1- Ext. Info

2- Ext. Info

3- Ext. Info

4- Ext. Info

5- Ext. Info

6- Ext. Info