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

Dates of Hearing: June 13, 2013

July 8, 2013

Actual Record Closed Date: July 30, 2013

Hearing Officer: Judith Schneider, Esq.

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

Esq. Attorney — Parents

Mother — Parents

Social Wker-CSE Representative — DOE

School Psychologist-CSE — DOE

(via telephone)

AP- Recommended school — DOE

(via telephone)

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

Esq. Attorney — Parents

Mother — Parents

Director - Prep. — Parents

(via telephone)

Social Worker-CSE Representative — DOE

On June 13, 2013 and July 8, 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”) for the 2012-2013 school year.

The proceeding was initiated at the request of the parent by correspondence dated April 4, 2013. (Ex. A) I was appointed Impartial Hearing Officer on April 5, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties initially scheduled for May 14, 2013 and conducted on May 16, 2013, hearings were scheduled for May 30, 2013 and June 13, 2013, the first mutually available dates for the parties, their witnesses and the hearing officer. (Ex. I) The May 30, 2013 hearing was thereafter adjourned and the July 8, 2013. (T. 4-5, Ex. I)

The initial compliance date in this matter was June 17, 2013. The parties moved to extend the compliance date on two occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and issuance of the decision. 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. 4-5, 109110, Ex. II)

The current compliance date is August 16, 2013. The record closed on July 30, 2013, upon my receipt of the final transcript.

Background

At the time of the challenged IEP, the student years old and in the grade at , a non-public school which has not been approved by the State Education Department as a school with which a school district may contract for the provision of special education services, in which the parents had unilaterally enrolled the student. (Exs. 1, 2) She had attended that school since grade. (Ex. 3) The student’s disability classification is learning disabled and that classification is not in dispute. (T. 13) She was initially classified as a student with a disability in about grade. (T. 190)

A evaluation was conducted on January 9, 2012, and the student scored below grade level in all academic areas tested, sometimes significantly so. (T. 14) Although in the grade months old at the time of testing, the student scored: for reading comprehension grade equivalent (“GE”) 2.7, age equivalent (“AE for word reading GE , AE ; for spelling GE AE ; and for various math subtests from GE to AE to (T. 14-16, Ex. C)

The CSE convened on March 22, 2012 (“the 2012 review”) to conduct both a triennial evaluation and an annual review for her 2012-2013 school year program, her 8th grade . (T. 12, 31) It recommended a 12:1 special education class in a community school and counseling (3x1(3:1)). (Ex. 1)

By letter dated June 11, 2012, the CSE recommended a placement at (Ex. 2)

The parents executed an enrollment contract and paid a deposit of $2,500 on August 23, 2013. (Exs. K, L) Commencing September 6, 2013 they made additional payments. (Ex. K) The total tuition for the school year (September 6, 2012 to June 14, 2013) was $35,625. (Ex. L)

The instant impartial hearing request was filed by letter dated April 4, 2013.

Positions of the Parties

The parents assert that the CSE’s March 22, 2012 IEP was procedurally and substantively defective, alleging deficiencies with regard to CSE composition, goals, management needs, promotional criteria, evaluative material and program. They also claim that the DOE failed to provide an appropriate placement for the 2012-2013 school year. The parents unilaterally placed the student at (“ ”) for that school year, assert that that program was appropriate and seek reimbursement from the DOE for tuition payments made by them. The parents claim that there are no equitable factors that support the denial or limitation of DOE funding. (T. 217-229, Ex. A)

The DOE asserts that the developed an IEP that is procedurally and substantively valid and offered a placement that could implement that IEP, that is not appropriate in view of a lack of standardized testing, failure to provide counseling as required and not properly qualified teachers, and that the equities support denial of DOE funding. (T. 213217)

Cases Presented

A list of documents in evidence and persons who appeared is appended.

The DOE presented the testimony of (“the ”), school , and (“the AP”), the Assistant Principal of the recommended school.

The parents presented the testimony of Dr. (“the director”), Director of the , and the student’s mother (“the parent”.)

Findings of Fact and Conclusions of Law

A) Facts

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. The relevant testimony is discussed below.

The information stated in the “Background” section above is specifically included herein as factual findings.

Transcript and Exhibit references not specified below are set forth above.

B) Analysis

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 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]).

With regard to the CSE review and the IEP, the evidence shows the following:

The psychologist participated in the 2012 review as school psychologist and she conducted the January 2012 psycho-educational evaluation. (Exs. F, 3) Also participating was James Slavin (as CSE special education teacher and district representative), two of the student’s math and ELA teachers at Bay Ridge and the student’s parents. (T. 12, Ex.

F) Prior to the review, the psychologist and Slavin had reviewed the student’s file which included her May 2, 2011 IEP and a March 25, 2011 speech-language progress report.

(T. 433) At the review, the CSE considered the January 2012 psycho-educational evaluation and the oral reports of participants. (T. 14, 21, 33) The goals were developed based upon the psycho-educational evaluation and the information provided by the student’s teachers. (T. 20-21) Counseling was provided because the CSE was informed that the student had self-esteem issues. (T. 19) The CSE considered an ICT program but concluded that that would not provide sufficient support. (T. 19-10) A program was considered not appropriate because in a public school these classes include children with severe attentional difficulties and possibly . (T. 18-19) In terms of the public school continuum, a class was more appropriate because the students there are more motivated to learn but have difficulties academically. (T. 19-20)

With regard to the claims of the parents I find as follows:

The CSE was not validly composed. The IEP specified that this student may participate in a general education curriculum and it recommended that she be placed in a . (T. 28, 31, Ex. F-2) The testified that this student would participate in a general education environment for part of the day. (T. 48) If, as here, a child is, or may be, participating in that educational environment, at least one regular education teacher of the child must be included on the CSE. 8 NYCRR 200.3[a][1][ii] That member is to provide input on modifications and supplementary aids and service that would allow the child to remain in the regular education environment to the maximum extent appropriate. (64 Fed. Reg. No.48, at p. 12591) No one identified as a general education teacher was specified on the IEP and the psychologist had no knowledge as to the credentials or teaching experience of the other participants. (T. 26-28, Ex. F) Moreover, even teachers has some experience in a general education environment, that would not demonstrate that they had any familiarity with a general education program in DOE schools. A general education teacher was a mandatory member of the CSE and the absence of one is a procedural defect that can render the IEP a nullity.

The CSE failed to evaluate the student in all areas of suspected disability although this was a triennial evaluation and such evaluations were required. 8 NYCRR 200.4[b][4]. “Significant” speech language (“SL”) deficits were noted in the prior IEP which referenced a speech language progress report from a provider at reporting substantial therapeutic support embedded in her academic program and provided in group and individual sessions. (Exs. C, D) The CSE had reviewed that IEP, with at least the psychologist having seen the progress report. (T. 33-34, 56-57) Further, I credit the parent’s testimony that the fact that the student was currently receiving SL therapy within the program was reported at the 2012 review. (T. 195, 157) Nevertheless, no evaluation was obtained. Indeed, there is no evidence that SL therapy was considered although the Bay Ridge Prep director persuasively testified as to the student’s need for it. (T. 176-177) The CSE did not have the information necessary to create an appropriate IEP that would provide all necessary and appropriate special education services and specify necessary goals for those services. Moreover, I note that the evaluation prepared by the psychologist was limited to only certain subtests and the basis for the omission of certain areas was not explained. (T. 37) The director’s testimony that the abbreviated battery utilized was not appropriate for a student with known learning disorders and that as a consequence it did not reliably describe the student’s cognitive abilities was persuasive.

(T. 150-153) 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. The absence of necessary evaluative material can render an IEP a nullity.

The IEP was insufficient to provide guidance to teachers as to how to provide instruction for this student. The management needs specified on the IEP – “encouragement, praise and structure” (plus a mere recapitulation of the actual program being provided) - are not specific to her and a virtual nullity. Indeed, the psychologist discussed them as appropriate for all students. (T. 20) No explanation for the omission of detailed management needs specified on the prior IEP was provided. Meaningful techniques or strategies to provide guidance in addressing various academic, social and emotional difficulties were not provided.

The goals were similarly insufficient. Despite significant reading deficits resulting in the being four grades behind, there was only one reading goal and that limited to reading comprehension. Although she was two grades behind in math in most math areas tested, there was only one math goal. The single writing goal was acknowledged to include areas in which the student had not shown a deficit in an informal writing assessment utilized by the psychologist. (T. 20, 21, 36, 39, Ex. 3)

In the instant matter, I conclude that the procedural violations set forth above impeded the student’s right to a FAPE and compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP Consequently, I find that the IEP is a nullity. The DOE has therefore failed to establish that it provided a FAPE.

In these circumstances, I do not address the parents’ other claims concerning the 2012 review and the placement offered

Prong 2

When a public school system has failed to provide 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).

For the reasons discussed below, I find that the parents have established that the program they provided was reasonably calculated to enable the student to receive meaningful educational benefits.

Credible testimony shows that (“the school”) serves children K-12, in two buildings.

(T. 118) Mainstream and special education programs are provided. (T. 118) The program has approximately 110 students and this student is one of the 29 in its (“ ”). (T. 119-120, 121, 127) The school also has the program for students who have issues and who can be mainstreamed with more limited support. (T. 121) is designed for students who have significant learning difficulties but age appropriate cognitive abilities , the students are in small groups according to learning needs for reading and math but for other classes there is more inclusive settings with mainstream students are provided. (T. 121) therapy is offered and counseling is provided on an as needed basis. (T. 122) Formal and informal meetings of staff are routine. (T. 123) Workshops for teachers are provided and instructional staff is supervised and monitored. (T. 118)

The school observed comprehension and decoding difficulties as well as working memory issues and although the student has verbal intelligence, she with writing and with . (T. 123-126, 130, 132, 135) The provision of courses in a manner which is challenging but which enables the student to achieve has reduced the need for direct sessions although the director, who is a and available to the student when she requires it.

(T. 126, 174-175) Her language arts classes are usually 4-5 similarly situated students, and she is provided with substantial support and scaffolding. (T. 127,128, 130) Her reading comprehension teacher is a certified special education teacher with a specialty in literacy. (T. 134, 160) Her writing teacher is dually certified in special education and as an SL teacher, the class has five students and outlines and graphic organizers are used.

(T. 131-133) SL teachers also instruct the oral language and independent reading classes.

(T. 134-147) The director instructs in math in a class of 10 and uses “Transitional Mathematics”. (T. 138-139) In the larger inclusion classes efforts to support her feeling more successful are made. (T. 127) The science and history classes each had 15-16 students and 2 teachers and included general education students. (T. 140-142) Extra periods in connection with the inclusion classes are provided students to help them stay on track. (T. 142-144) services were embedded in the language arts program to encourage generalization and although individual sessions had previously been provided they are no longer considered to be necessary in view of program changes. (T. 144-145, 170-171)

Students are assessed with some standardized testing on a case by case basis, curriculum based assessments and observations in class and progress reports which are written four times a year and this student has progressed. (T. 146-147, 161-167, 178-180, Ex. J) The school also considers certain standardized testing done by the DOE. (T. 175176)

The DOE asserts, to support a claim that the placement is not appropriate, that its determinations of progress are subjective in that standardized tests are not used, that the teachers are not appropriate for the subjects they teach and that counseling, as mandated by the CSE, is not provided. (T. 215-216) However, I note that the testimony with regard to progress was credible and, further, that progress is only one factor and the totality of the program must be considered. Gagliardo. With regard to teaching credentials, I am persuaded that the teachers are appropriately qualified to implement the program of the school. Further, it is not required that each instructor in a unilateral placement be special education teacher. Carter. I am also persuaded that adequate emotional support is provided. Moreover, it is well established that a unilateral placement is not required to provide every service on an IEP. Appeal No. 11-017.

I find that the program is appropriately aligned with the student’s present levels of performance and identified management needs and provides the necessary special class settings and grouping with similarly functioning students. I conclude that the parents have met their Prong 2 burden.

Prong 3

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. Even the signing of a contract prior to an IEP review is not dispositive of a claim for DOE payment. Appeal No. 05-087.

In the instant matter, there is no claim, or evidence to support such a claim, that the parent failed to cooperate with regard to the development of the IEP. The DOE, however, asserts that the parents never intended to enroll the student in a public school and notes that the parent did not even inform the CSE with regard to any unavailability of the placement offered. (T. 216-217)

The evidence shows that although the parents indicated a preference for another program at the CSE review, they did not inform the CSE that she was rejecting its program but rather stated that they would look at the placement proposed. (T. 197) There is no evidence, testimonial or documentary, that the parents ever thereafter communicated any concerns to the CSE to give it an opportunity to address them. Thus, I conclude that the parents paid a deposit on August 23 and on September 6 signed a contract without specifically informing the CSE either that they were considering withdrawing the student from public school or that they had done so.

I find credible the parent’s claim that she was informed when she telephoned that there was no available space. (T. 199, 204) I note with regard to that finding that the DOE’s placement offer incorrectly recommended a 6th grade class and that although the AP testified that there was an 8th grade placement available, she had no precise information. Further, the DOE representative acknowledged the confusion that occurs at the beginning of the school year. (T. 215) However, the parent did not communicate that information to the CSE to clarify its accuracy and/or to enable it to find another placement. (T. 205, 206 ) Indeed, the parent never even maintained relevant information about when and by whom the information was provided. (T. 207) Rather, the testimony of the parent supports my conclusion that she did not want to give the CSE an opportunity to remedy a problem with regard to an available placement because she was dissatisfied with the program and had no expectation that what she believed was a proper placement would be offered. (T. 206, 212) Accordingly, a parental lack of cooperation with the CSE with regard to the placement process has been shown.

Further, the IDEA allows denial or limitation of reimbursement if appropriate notice is not provided before removal of a student from public school and courts have upheld hearing officer exercise of discretion to do when, as here, this statutory provision is not complied with. 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]), Appeal No. 11-017.

In the foregoing circumstances, and in consideration of the substantial DOE failures in this matter, which include, among other things, the failure to obtain adequate evaluations prior to the review and the failure to provide an FNR which specified a correct class, I conclude that a reduction in reimbursement of 25% of the tuition paid is appropriate.

Order

The DOE shall immediately reimbursement the parents for 75% of their payments for tuition for the student’s attendance at for the 2012-2013 school year upon submission of satisfactory evidence of payment and charges.

Dated: August 12, 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 (“Portrait” Printout)(p. 15 cutoff) 3/22/12, 9 pgs Department of Education

2 FNR, 6/ 11/12, 1 pg. Department of Education

3 Evaluation, 1/9/12, 4 pgs. Department of Education

4 Evaluation, 8/18/09, 12 pgs. Department of Education

A Impartial Hearing Request, 4/14/13, 7 pgs. Parents

B Consent for Evaluation, 1/9/12, 1 pg. Parents

C IEP, 5/2/11, 12 pgs. Parents

D Progress Report, 3/25/11, 2 pgs. Parents

E Progress Report, 2011-2012, 8 pgs. Parents

F IEP(“Landscape” Printout), 3/25/11, 10 pgs. Parents

G Program Description, 2012-2013, 5 pgs. Parents

H Student Schedule, 2012-2013, 1 pg. Parents

I Language Arts Schedule, undated, 1 pg. Parents

J Academic Report Card, 2012-2013, 6 pgs. Parents

K Affidavit of Tuition Payment, 6/18/13, 1 pg. Parents

L Enrollment Contract, 8/23/12, 2 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer