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: April 12, 2013

May 28, 2013

July 8, 2013

July 9, 2013

August 8, 2013

August 23, 2013

Actual Record Closed Date: September 22, 2013

Hearing Officer: Israel Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013

Ben Kinzler, Attorney — Parents

District Representative (Via Telephone) — DOE

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

Ben Kinzler, Attorney — Parents

Mother — Parents

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2013

Ben Kinzler, Attorney — Parents

Mother — Parents

Program Director (Via Telephone) — Parents

Teacher, Advocate — Parents

District Representative — DOE

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

Ben Kinzler, Attorney — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2013

Ben Kinzler, Attorney — Parents

District Representative — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

On February 25, 2013, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 794 in the matter of . I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: April 12, 2013, May 28, 2013, July 8, 2013, July 9, 2013, August 8, 2013, August 23, 2013. Extensions of the compliance date were granted due to unavailability of witnesses as well as to allow time for receipt of the final transcript of August 23, 2013, so that this IHO could render a decision referencing the complete records of this hearing.

This is a dispute with regard to the appropriateness of the Individualized Education Program (IEP) and the placement for for the 2012-13 school year. The Department of Education defended its IEP, the class (with up to twelve students for the one education teacher, with four ) and the placement offered. Tr. 767-782, 785-794. The position of the parent is that the 12-1-4 class that was recommended by the DOE was not appropriate, the recommended placement at large public high school building where School is located was not appropriate, the parent’s unilateral placement at (The Program) was appropriate, and that the balance of the equities favor awarding tuition for to the parent. Tr. 745-767, 782-785.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The obligation of the school district is to provide a child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, ely where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under IDEA, parents need not show that a private placement furnishes every service necessary to maximize their child’s potential. They need only show that the placement provides educational instruction ly designed to meet the needs of a child, supported by such services as are necessary to permit the child to benefit from instruction.”

In R.B. and H.Z. on behalf of C.Z. v. New York City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the needs of a child.”

Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the pro of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE. Looking at the facts here, there do not appear to have been any procedural inadequacies that would rise to the level of denial of FAPE.

The second circuit has recently clarified “that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.” R.E. v. N.Y.V. Dep’t of Educ., 694 F.3d 167, 2012 WL 4125833, at 12 (2d Cir. Sept. 20, 2012).

Basing its decision on R.E., in R.C. ex re. M.C. v. Byram Hills School Dist., 2012 WL 5862736 (S.D. New York Nov. 16, 2012), at 11, District Judge Daniels wrote the following with regard to the effect of a parent rejecting an IEP:

Given the Second Circuit’s recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom a student would be placed in where the parent rejected an IEP before the student’s classroom arrangements were even made.

As is clear from another recent case, however, the burden remains on the school district “to prove that the proposed placement was adequate.” B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., F. Supp. 2d, 2012 WL 6691046 (S.D. New York Dec. 26, 2012), at 7.

R.E. reaffirmed its prior holding in T.Y., that a school district must “conform to the program offered in the IEP.” R.E., 694 F.3d 167, at 192. As stated in T.Y., 584 F.3d at 420, school districts do not “have carte blanche to assign a child to a school that cannot satisfy the IEP’s requirements.”

Another recent case, K.L. v. NY City DOE, 2012 WL 4017822 (SDNY), at 13, the court reiterated the conclusions of TY, at 419, that the federal regulations “only require that the parents have an opportunity to participate with respect to ‘the general type of educational program in which the child is placed,’ not the specific brick and mortar site.”

In a recent case in which a mother testified based on her visit to a school that her child would have been placed with higher students, and there was evidence to the contrary, the judge concluded that her testimony was not sufficient “to warrant a finding that … [the] IEP was not ‘reasonably calculated’ to confer educational benefits.” The opinion continued:

… just as the Department may not rely on retrospective testimony concerning the services that would have received had the parents accepted the proposed placement, the parents cannot rely on observations of a particular teacher or classroom because there is no guarantee that would have been placed in the classroom visited…

F.L. v. NYC DOE, WL 4891748 (SDNY), at 14.

A recent SRO decision summarized the view that when parents reject a program and placement in advance, determination of whether the offered program was appropriate may be made on the basis of the IEP alone:

The sufficiency of a district’s offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42

[SDNY 2011]. If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to failure to implement it (id., see also Grim, 346 F.3d at 381-382 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]).

SRO 12-10.

In Grim v. Rhiinebeck, 346 F.3d 377, 381-382 (2d Cir. 2003), the situation was that the parents had removed their child in advance. The Second Circuit analyzed the appropriateness of the program offered by the school district on the basis of the IEPs alone.

In a case just decided recently, D.C. v. New York City D.O.E., 12 Civ. 1394, March 25, 2013, at 43, Judge John G. Koeltl wrote that in cases “involving implementation of the IEP, testimony from the Department is permissible, but it must be limited to information that was reasonably known to the parties at the time of the placement decision.” Also, the Judge held with regard to inadmissibility of evidence by the Department of Education, “… only testimony regarding events that occurred after the unilateral placement decision was made [are inadmissible] or testimony of information that alters the representations that were made to the parent.” Id. at 42. Thus, once a unilateral placement has occurred, what occurred afterwards is not only irrelevant to the legal conclusions but should be inadmissible as evidence.

Here, the DOE did not conduct new testing of before developing the IEP. No evidence of an observation of the student prior to the development of the IEP was entered into the record by the DOE. The school who conducted the IEP conference testified that he could not recall specifically that an observation had been done but it was the standard procedure that he observes each of the students at the school, where has been attending, each year. Tr. 100-102. A II report, conducted approximately one month prior to the IEP conference, showing ’s all areas reported. Exhibit 8. Although the school could not recall exactly what reports were available at the IEP conference, he indicated that the school usually sends teacher progress reports and goals for related services. Tr. 93. It appears that information regarding ’s present level of and needs as found on his IEP , Exhibit 2, was obtained from such school reports and/or from input from school personnel who participated in the conference and from ’s mother.

As is clear from Exhibits E and F, the parent of rejected the DOE’s site offer well before she visited the site. On June 14, 2012, before the start of the school year, the parent checked a box on the Final Notice of Recommendation indicating that “My child will enroll or continue to be enrolled at a private or parochial school at my expense. I agree with the Related Services and/or Related Services and/or Education Teacher Support Services (SETSS) recommended on my child’s IEP….” Exhibit E. ’s parent wrote in another letter dated September 24, 2012, after the start of the school year, that she had checked this box because she thought she needed to do this in order to reject the school placement while accepting the related services. She reiterated that she could not accept the placement that the DOE had offered for and that she had made arrangements for to attend the school. This letter also advised that she intended to seek reimbursement for the cost of ’s attending this school. She also asked for the DOE to provide the related services needed. Exhibit F.

’s mother testified that has attended for fourteen years. Tr. 535. The education program at the School building which the DOE offered with its FNR, Exhibit E, was also the site offered previously, so she explained that she had already visited this site on three previous occasions and her husband had visited once. Tr. 546. On this occasion, i.e, after the site offer for the 2012-13 school year, she began trying to visit after , when the school was damaged and its phone lines were down, Tr. 565 (although she said when asked if she tried as well before , that she did it was possible, she did not know.) She finally visited in November, 2012. Tr. 569.

It is clear that the parent rejected the program before the start of the school year and in fact did not visit it until the third month of school. It is clear from the case law above that under such circumstances, the DOE cannot be expected to keep a seat open for and the specific details of the program site as observed in a short visit in November are not relevant for the decision at this time for the IHO. What matters is that the site is one where the DOE could have implemented an IEP at this site appropriately. The question is had the parent not rejected the program far in advance, might the DOE might well have worked out the details with the parent and have provided a suitable program for at that location.

In consideration of whether the IEP could have been implemented there, issues raised by the parent such as the large size of the school building and its safety are relevant. This student is reportedly very small and fragile. Tr. 516.

One major issue here is whether the class offered by the DOE was suitable to address ’s educational needs. was educated in an class for part of the day, in the afternoon at and in a class for part of the day, in the morning, there. Tr. 368-369. The primary teachers for both the morning and the afternoon classes were certified education teachers. He also had a assigned to him at . Tr. 333-334.

From the perspective of class size alone, this does not seem all that different from the program offered by the DOE, with twelve students, but with the class programmatically having four In addition, he IEP calls for a to be assigned to . Exhibit 2-7. Also, the related services recommended by the IEP and provided at appear similar. The IEP also calls for related services of

It is the nature of the site that appears to be the key issue here. is a small school. Tr. 353, 397-398. The site of the education program, which the parent was aware of when she made her initial decision to reject it back in June 2012, is in a large public high school, within the same building that houses . The concerns raised include whether this student would be safe there. The parent testified that the New York Department of Education or the office of the to be a failed school in the areas of security and crime. The school had received scores of she said. She said that she therefore could not imagine sending her child there. She .” She said that it was one of the lowest performing schools. She said she was very worried about her son being in such a place since he is very vulnerable. She explained that he is old but is

In her testimony, the assistant principal of the education program the DOE offered testified that in lunch time the regular education students come to the store located in the education area of the building Tr. 205.

Asked what would likely be the result of his being placed in the site proposed by the DOE, Ms. stated, “In my professional opinion, in my knowledge of … [], I would be pretty comfortable saying that there would be not only decreased progress but most likely regression.” Tr. 362

Ms. testified that the school day at is from 9:00 to 4:00 with a ½ hour each morning devoted to prayer and religious instruction. Tr. 381, 408-409.

’s mother testified that she has obtained for another child of hers. She had a done for . She testified that the DOE approved a but then would not provide the . She came to the IEP meeting and asked for the but was told, she testified, that the DOE does not do . She said she explained that she had gotten it for her other son, and was told, “no,no, it’s not something we provide.” She further explained that was told that is only for issues. She then explained that her other son did not have problems bur needed it because the with each other. She said that Dr. said that based on the definition he had was only for . Tr. 539- 542.

’s mother said that when she received the letter indicating what site was being offered by the DOE, she had the same opinion of it that she had formed previously. She explained, “the population within the general ed. population was a danger to my child. , that there were serious issues that I had with regards to the site, that I knew that the placement was not an appropriate placement for my child.” But, in early November, 2013 she did go to visit the placement. Tr. 562-563.

She explained that the team also did not recommend a plan, but she opposed this view, as she said she thought such a plan was needed; the IEP was incorrect in this regard, she believed. Tr. 542-543.

Thus, I conclude that the DOE has not satisfied its Prong 1 burden of showing that the program and placement offered were appropriate.

With regard to Prong 3, while the parent did not visit the proposed site until November, this was a site she had visited a number of times before and she believed it would be harmful to her son. Thus, I cannot say that she was uncooperative. As a parent, one cannot blame her for not being all that interested in seeing a site that she was convinced was inappropriate.

While the income of the family of was not insubstantial, see Exhibit W, given the size of the tuition at , it is understandable that the parents had difficulty paying the school costs up front. In such a situation, where parents lack the funds to pay up front, a school district must pay the monies owed, assuming that the parent’s claim is meritorious with regard to the three Burlington factors. This conclusion is based upon the following case law.

In Miener v. Missouri, 800 F.2d 749 (8th Cir. 1986), 753, the court declared, “we are confident that Congress did not intend the child’s entitlement to a free education to turn upon her parent’s ability to ‘front’ its costs.” So the fact that the situation is not one of reimbursement should not be the important factor, eliminating the ability of a parent to obtain financial relief.

In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) at 805, the court followed similar reasoning:

By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception… Given the fragile state of many children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.

In a more recent second circuit case, Mr. A. ex rel. D.A. v. NYCDOE, 769 F. Supp. 2d 403 (SDNY 2011), the court concluded that federal statute “authorizes direct retroactive tuition remedy for the same reasons that the Burlington court found that the Act authorizes a tuition reimbursement remedy…. Where … parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition relief.” Id . at 428.

That attends , a religious private school, should not pose a problem with regard to the DOE funding the nonreligious part of the school day; i.e. by far most of the day. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “ The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive religious instruction in …[the private school].” Application of a Child with a , Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a sectarian school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for religious “worship, instruction, or proselytization.” This rule prohibiting use of federal funds to pay for worship, instruction or proselytization is from 34 CFRϸ 76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid. Zobrest did allow public funding of a signlanguage interpreter at a .

Consistent with this case law, the fact that is a sectarian school presents no obstacle to funding of education services there. Funding of the part of the day devoted to prayer and religious instruction, however, presents a problem with regard to using public funds to promote the establishment of a particular religion, which consistent with Footnote 7 of Zobrest, is prohibited as a constitutional violation.

Here, there was testimony that prayer and religious study at takes up 30 minutes per day, of a school day that runs from 9:00 to 4:00. So religious activities take up about 7% of the school day. Thus, the DOE should only be responsible to pay 93% of the cost for tuition at ; i.e. 93% of $50,000, or $46,500.00. (See Exhibit C which presents an itemized breakdown of the cost of ). The cost of $88, 600 for related services (See Exhibit C) is unaffected by the reduction for religious activities. Thus in total, the DOE is responsible for $135,100 for the cost of ’s attendance at .

ORDER

Upon receipt of confirmation of the amount paid by the parent and the amount still owed by the parent for ’s attendance at during 2012-13, the DOE shall reimburse the parent and pay directly to for the cost of $135,100. This amount shall be paid within two weeks of receipt of confirmation of the amount paid and the amount still owed by the parent to . Dated: September 24, 2013

________________________

ISRAEL WAHRMAN, ESQ.

Impartial Hearing Officer IW: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

A Impartial Hearing Request, dated 12/18/12 B Itemized of costs, dated 9/1/12, 1 page C Enrollment contract, dated 9/4/12, 1 page D , 2/28/13 E Final Notice of Recommendation, 6/7/2012, 1 pp F Parent letter to CSE, dated 9/24/12, 2 pages G Recommendation letter for deferred placement, dated 3/22/12, 1 page H letter and script, dated 3/19/13, 1 page I DOE printout of , 4/10/13, 1 pp J transportation para dated 6/29/11, 2 pages K Letter from 4/9/2013, 1pp L , dated 1/19/12, 1 page M various dates, 5 pages N , various dates, 4 pages

DEPARTMENT OF EDUCATION

1 Withdrawn 2 IEP, 3/21/12, 12 pages 3 IEP Meeting Letter 5/8/12, 1 page 4 FNR Signed by Parent, 6/7/12, 6/14/12, 1 pp 7 Letter Summer 2012, 1 page 8 II Report 2/28/12, 8 pages 9 Report, 11/30/11, 1 page 10 Letter from Parent 11/30/11, 1 page 11 Letter from Parent 2/2/12, 1 page 12 Bill from 1/18/12, 1 page 13 12/12/12, 1 page

IHO

I Office of , 2011-12, 10 pp II NYC DOE School Survey- 2012-2013 Report, 20 pp