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: Parents

Date of Hearing: June 17, 2013

Actual Record Closed Date: August 7, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2013

Tamara Roff, Esq. Attorney — Parents

Mother — Parents

(via telephone) Dean, — Parents

DOE Representative — DOE

On June 17, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “district”) 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 March 16, 2013. (Ex. A) I was appointed Impartial Hearing Officer on March 8, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on April 11, 2013, the initial hearing was scheduled for June 17, 2013, the first mutually available date for the parties, their representatives and witnesses and the hearing officer. (T. 4-5, Ex. I)

The parties moved to extend the compliance date in light of the parents’ representative’s maternity leave, anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. 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 and have counsel of their choice 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. (Ex. II).

The current compliance date is August 20, 2013. The record closed on August 7, 2013, upon my receipt of complete post-closing memoranda.^[1]

Positions of the Parties

The parents assert that the student is a student with a pursuant to state and federal regulations, that the district failed to identify him as such and develop and that therefore it failed to provide a for the 2012-2013 school year. The parents unilaterally placed the student at the or “the school”) which they claim was appropriate, and seek reimbursement from the DOE of for that placement. The parents assert that in this matter equitable considerations do not support denial or limitation of the reimbursement sought. (Ex. III)

The DOE has conceded that it failed to provide a . It argues, however, that was not appropriate for this student. Further, it claims that the parents demonstrated bad faith in their interactions with the district and that reimbursement should be denied on an equitable basis even should the parents establish the appropriateness of the placement. (Ex. IV)

Cases Presented

A list of documents submitted is appended.

The DOE did not present any witnesses.

The parent presented the testimony of two witnesses: Dean of Students; 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 the parent bears the burden of proof with regard to Prongs 2 and 3. Educ. Law 4404[1][c]

A. Factual Findings Concerning Background

The evidence shows the following with regard to the background of this matter:

The student is a who had attended DOE . (Exs. 3, B) He had a history of but during middle school began reporting to his parents that school although he continued to do well academically. (T. 104, Ex. B) For his school year, the student was enrolled in a DOE high school (“the high school”) and a pattern of failing to complete homework assignments in all subjects commenced early in his first term there. (T. 104-106, Ex. B) Thereafter, the student began to , commencing with and eventually in . (T. 107) Parental and attempts to and continued. (T. 108-109) By the student was not although through parental efforts was completed and provided to the school. (T. 111, 116-117) The student was not provided with by the high school but commencing March 2011 were obtained by the parent and the high school was notified. (T. 109, Ex.

P) Those services continued for and evertheless increased. (T. 109, 113) The high school was conducted or proposed by the school although . (T. 119????????) However, in response to the parent’s inquiry in March 2011 provided information concerning how to obtain home instruction (“HI”). (Ex. 2 ) There is no indication that as at that time requested by the parents.

At the suggestion of the student’s , an independent was conducted. (T. 114, Ex.

B) After testing in , the student was , , and (e.g. ). (Ex. B-19) Among other things, the report stated that the student had a ) but that overall functioning was to summarize by a in view of very large (ranging from (processing speed)) in the scores making up the composite. were reported to compromise the .” (Id.). Performance in , was well and he was on certain writing sample tasks and in the context of academic tasks, as well as were reported as significant factors appearing to . (B-13) It was also noted that he student did not appear to be able to and that it was not in the outside world were not due to . (Ex. B-13, B-14) The stated that “It will be essential for (B-15) The made a number of recommendations including .) (B-20 through B-22

The was not provided to high school but the and various teachers were was informed about results. (T. 121-122, 168, Exs. L, M, N,O) No response to the information concerning the was received by the parents and a copy of the was not requested by any district staff. (T. 121-122, 140) Homework was produced by the student through the end of the school year. (T. 120)

The parents considered a variety of options, , for the 2011-2012 school year but the student was and the parents ultimately decided that was a good temporary solution. (T.127, 145-147) The DOE was informed that the student suffered from and it provided at the parents’ request for the 2011-2012 school year. (T. 127, Ex. Q, T) continued with several other were tried for a brief time but the student did with the and . (T. 124126, 148)

During the 2011-2012 school year the student’s and he rarely he . (T. 132-133) However, continued and the student was reported to have . (T. 131, Ex. 1) The district offered for , the beginning of the 2012-2013 school year, but the student could not it because delivery of that service at that time would have required that he per day to meet and he . (T. 132-133) The DOE was informed of this but no other options were provided. (T. 133)

The parents secured the services of an in . (T.150) The student attended a from the end of July 2012 through the end of September 2012 (T. 133-134) The parents did not inform the district as to this placement. (T. 155) The student was there and strategies were developed there which enabled him to participate in . (T. 134) At the conclusion of this program, the and the recommended that the student attend (T. 134-

135) The parents placed the student in the and he commenced attendance on . (T. 136) The parents did not inform the district of that placement until , more than six weeks later, and that time informed the that tuition would be sought. (T. 139, Ex. C). The parents did not then or at any time during the 2012-2013 school year request a . (T. 167) The did not any time during the 2012-2013 school year seek to conduct . (T. 139)

B. Prong 1

The DOE has conceded that it failed to provide a for the 2012-2013 school year.

C. Prong 2

When a public school system has failed to , 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 . 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 . 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 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 evidence shows is a school located in and accredited by that state as a school and provides courses. (T. 25-26, 44, Ex. V) It has some students in grades in classes that do not exceed students. (T. 36) All students in the same in which instruction is provided and there is staff . (T. 26) Class formation is based upon grade but if there is a conclusion that an I student will then present. (T. 89) The school focuses on students who are but who have issues that impact school . (T. 27, Ex. V) These issues include . (T. 27) Total residential, instructional and administrative staff number some (T. 86) is not provided at the school and staff does not include . (T. 86 ) Arrangements for to be paid for by parents from outside providers may be made. (T.

66) The determines guidelines to address students’ needs based upon information obtained from review of and interviews of . (T. 29-30. 60)

Teaching certifications are not required for instructors. (T. 56) However, experience with students with with different learning styles and classroom management skills are factors in hiring staff. (T. 58) Teachers were supervised by an in the 20122013 school year. (T. 58) Advisors are assigned for each student and included in their responsibilities is coordination with teachers to ensure attendance and completion of homework among other things. (T. 39, 83 are part of the school’s program and homework and organization issues are able to be addressed in them. (T. 44, 47,48) Daily are maintained for all students which facilitate coordination between and to assist in the early determination of (T. 39) There are of all staff and additional and for . (T. 87) Staff training in certain areas is provided and during the 2012-2013school year there were . (T. 26)

The student is in a class of graders, who move together through the academic program, and all . (T. 32, 38) His academic program included . (T. 35, Ex. D) The student has of some sort but not special education. (T. ) All his teachers have . ( )

Various approaches were utilized to deal with the and of . (T. ) These included very close attention, facilitated by the small setting, which permitted the immediate addressing of , the encouragement and support of small , the recognition and addressing of in returning to his program after a or occurred, and the use of desired events and activities to . (T. 31-34, 45, 49, 53) Help with organization, both in activities of was provided to and to prevent the . (T. 42-43, 47-48) Small class size enabled very attention and allowed him to complete and to be . (T. 36-37) Assignments were appropriately , areas of or this student. (T, 34-35, 38, 72Ex. B) The included the implementation of various recommendations . (T. 35, 36, 37-38, 44, 50, 73-74, 76, 8384, B 20-22)

The student successfully completed and the school asserts certain in various activities. (T. 40, 46, 50, 73) I am persuaded that the student made at particularly with regard to academics. However, 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. In considering whether the parents have met their Prong 2 burden, I note the following:

The evidence concerning progress with regard to is limited and What appears to have been the principal school goal in that area was acknowledged not to have not been achieved. (T. 74) Moreover, there is no indication made would carry over outside the very staff environment which supports his attendance ( students). Specific academic the circumstances here where the student has a . (Ex. 1) Further, there was no testimony indicating how the student’s academic progress was evaluated and no indication that standardized tests were utilized.

I also note that is not accredited as . (T. 84) Its staff includes no (T. 86) The testimony indicates that there were no teachers or other staff with credentials. Indeed, two of the student’s four teachers at all and neither who supervised all the teachers, nor the , who testified in this proceeding, had such. (T 56-57. 59, 82) Further, other than his experience at the no information was provided concerning the specific training of the or the experience of his teachers. (T. 82) The only qualifications specified for the person who developed the guidelines for how the staff was that she had been (T. 30-31, 85) The sole information provided concerning the nature of outside training and/or support with regard issues was the description of certain meetings during the 2012-2013 school year. Although it is well established that the education teachers does not foreclose a determination is appropriate, in the circumstances here evidence of of any staff is absent. I note with regard to this that although the student’s advisor was experienced at there is nothing in the record indicating the nature of his training. (T. 93) However, in the circumstances here, the student’s demonstrated resistance to reinforces the need for appropriately trained staff at the school and provides support for a conclusion that the school is not appropriate.

The reported substantial which may also affect the student’s executive functioning in certain areas and noted the student’s need in order to appropriately acknowledge . The Students stated that the student does require and the school is trying to move him toward it. (T. 68) It was noted that that would not be provided by the school but would be funded by the parent and, I note, the mechanism by which that would be integrated into and inform the school’s program with regard to this student is unclear. (T. 69) Thus, even if was being accessed by the student, there would be substantial questions as to whether it could be concluded that provides educational instruction specially designed to meet the unique needs of a , supported by such services as are necessary to permit the . Gagliardo, 489 F. 3d at 112. See also, Appeal No. 11163.

Those services, are not, however, being provided. With regard to the issue of its absence at this time, I find credible the testimony that the student did not meaningfully participate in the provided by the parents before he entered . (T. 113, 125-126, 127) Moreover, I credit the testimony of the that a determination was made during the admission process that weekly parent funded was necessary and that they were commenced but as a consequence the student’s participate. (T. 66-67) However, appropriately trained staff might well provide support for the effort to enable the student . I note with regard to this that the parent testified that the staff, which included a , devised effective techniques to in that environment. There may well be appropriate techniques that would be similarly effective in the milieu. of appropriately may be precluding the student from receiving that . I note that the parent credibly testified that was recommended by the . However, there is no indication that that was aware of the absence of appropriate staff or what he/she believed about what would or should be provided, by the school or otherwise.

Accordingly, I find that the parents have failed to establish that was appropriate.

D. Prong 3

In view of the foregoing findings, I do not address the parties’ various claims concerning equitable considerations in this matter. However, I make the following factual finding:

Although the parent testified that the parents were not aware of relevant procedures, which include the possibility of district placements in and residential placements, I find that testimony not credible. (T. 141, 143-144, 152-153) With regard to that finding, I note that the parents had at the time of this placement a child who had been receiving and therefore were aware of general procedures and of where to make inquiries. (T. 154) Further, I note that the parent demonstrated intelligence, sophistication and conscientiousness in their efforts with regard to this student and the parents were proactive in seeking appropriate support. (T. 113, 115, 124, 131, 151, 155, 161) I find it not credible that an inquiry to the student’s various or others with certain expertise or experience as to what publicly funded supports might be available was not made and that the range of possible recommendations, which include private school placements when appropriate, was not mentioned here where the parents acknowledged the heavy burden of the cost of a private placement. I note that they consulted at least professionals, utilized an and visited numerous schools, some student, as well as obtained information from friends in their effort to address the student’s needs.

ORDER

The claim tuition for the 2012-2013 school year is denied and this matter is DISMISSED.

Dated:

___________________________

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 Public Sch. , undated , 1 pg. Department of Education

2 Email , 3/24/11, 2 pgs. Department of Education

3 Attendance History, undated, 1 pg. Department of Education

A Impartial Hearing request, 3/6/13, 2 pgs. Parents

B . Eval, 4/18; 5/2;5/9;5/16/11, 28 pgs. Parents

C Let. from to CSE Chair, 11/19/12. 1pg. Parents

D 4th Prog Rpt. 5/4/13, 1 pg. Parents

E Prog Rpt, 2/15/13, 4 pgs. Parents

F Prog Rpt, 12/7/12, 5 pgs. Parents

G Prog Rpt, 10/8/12, 5 pgs. Parents

H Letter, 1/2013, 1 pg. Parents

I Affidavit of Payment, 5/8/13, 1 pg. Parents

J , 10/2; 12/6/12, 2 pgs. Parents

K Agree, 10/2/12, 3 pgs. Parents

L Elec. to , 4/3/11, 1 pg. Parents

M Elec. to , 4/3/11, 1 pg. Parents

N Elec , 4/3/11, 1 pg. Parents

O Elec , 4/3/11, 1 pg. Parents

P Let. B. , 4/28/11, 1 pg. Parents

Q /12/11, 1 pg. Parents

R Auth. 9/28/11, 1 pg. Parents

S Let- . 9/15/11, 1 pg. Parents

T Req. 25/11, 1 pg. Parents

U Let- , 10/6/11, 1 pg. Parents

V , undated, 2 pgs. Parents

I Prehearing Conf. Memo Impartial Hearing Officer

II Compliance Date Extension Decision Requests Impartial Hearing Officer

III Parents Closing Memorandum Impartial Hearing Officer

IV DOE Closing Memorandum Impartial Hearing Officer

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Footnotes

[1] A portion of the parent’s post-closing memorandum was omitted in transmission and that was not immediately discovered.