NY IHO #2014-ih-1065: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 13, 2014

March 26, 2014

Actual Record Closed Date: April 10, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2014

Attorney — Student

Mother — Student

CSE 7 Chairperson's Representative — DOE

School psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2014

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Curriculum Director (Via Telephone) — Student

CSE Chairperson Designee — DOE

INTRODUCTION

On January 28, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

This matter was instituted by the impartial hearing request dated January 28, 2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 1)

Relief sought for the 2013-2014 school year includes direct funding or reimbursement for unilateral placement at the for Special Education (JCSE) and a declaratory finding that the student’s right to a FAPE was violated. (Ex A 5)

I note that at times the transcript of March 26, 2014 identifies the IHO speaker as IHO Farago. This is an error, as it is IHO Daniel Ajello.

BACKGROUND

IEP of March 6, 2013 discloses the following information: student was 4.10 years of age at the time of the IEP meeting, with a classification of multiple disabilities, cognitive score on assessment of , if there is to ten, primary language is Yiddish, understands some basic English words, English is not a functional language for the child, likely he will continue to benefit from continued use of augmentive means of communication, but needs more training with this objective, medical , periods , often has impact , reduced . (Ex 1-2 & 1-2)

Short concerns the parent. (Ex 1-2)

Functioning at 2 to 2.5 age level for social development. (Ex 1-2)

Student prefers to

Student does not make his needs known in the classroom, and waits for an adult to help him, and when he faces a problem. (Ex 1-2)

Physical development information includes that the student medication, bilateral , ambulates is poorly intelligible, , master, Asthma, Neurological Disorder, , and . (Ex 1-2 & 1-3)

Management needs include a health paraprofessional to ensure safety, and adaptive seating. (Ex 1-4)

IEP recommendation includes a Yiddish Special Class with a ratio of 12:1+1 for math, ELA, social studies and sciences, Yiddish Speech-Language Therapy (Speech) services individually for 3 thirty minute sessions weekly, Physical Therapy (PT) individually for 4 thirty minute sessions weekly, Occupational Therapy (OT) individually for 3 thirty minute sessions weekly, Feeding Therapy twice weekly, for thirty minute sessions, vision education services twice weekly for thirty minute sessions, a full time orientation & mobility para,12 month services, special education transportation of air conditioning, and instructional functional levels of Pre Kindergarten for reading and math. (Ex 1-11, 1-12, 1-15)

THE PARENT’S POSITION

( ) Attorney, presented the parent’s position.

contends the DOE failed to meet its burden and prove a FAPE was offered to the student. Sufficient independent date was presented to support the DOE recommendation. Appropriate goals were not developed. The placement recommended could not address the student’s needs, as it does not have an appropriate peer grouping, is too large and cannot provide appropriate classroom instruction as the IEP goals are inappropriate. (T 118-120)

JCSE is aware of student’s special education needs, established individualized goals, monitors progress, provides small group instruction with similar peers, one -toone instruction is provided, related services are delivered, a para is provided, and the student receives an educational benefit. (T 121-122)

Parent communicated her concerns to the DOE in writing after visiting the recommended placement in August and September. (T 123)

Student received a de minimis amount of religious instruction during the 2013-2014 school year. Funding for such instruction is permissible. (T 123-124)

Parent seeks direct funding of tuition and related services to the JCSE for the student for the 2013-2014 school year. (T 124)

PARENT WITNESS SARA FRIEDMAN

(SF) reviewed her educational and professional background and testified as the student’s teacher at JCSE, for the 2013-2014 school year. (T 40-41)

Student is in a class of seven boys, ages five and six, and three adults, one teacher and two paras. The paras are one to one paras. One of the paras is for the student. (T 41-42 & 64)

Students in the class function on a pre kindergarten level. (T 53)

Class is taught in Yiddish and English. (T 63)

Student is exposed to kindergarten curriculum. (T 54)

Report cards are provided twice a year. (T 64)

Student has two different teachers during the school day. (T 55)

Student is skills, and academically he is progressing nicely. (T 42-43)

Educational goals were developed for the student at the beginning of the year: “we observed him and we assessed him with the scholastic assessment for kindergarten for math and reading. And then according to the observation and working with him for a couple of weeks…in the beginning of the year and then assessing him, we came up with the goals based on the New York State standards for his level.” (T 43)

Goals are created in October. In September the student works on general skills that apply in every classroom. (T 64-65)

At the beginning of the school year, relative to reading, the student did not know any of the alphabet, was able to answer very simple comprehension questions, and phonemic awareness skills were emerging. (T 43-44)

Skills address included letter recognition, letter/sound relationship for all letters, phonemic awareness skills such as rhyming and reading comprehension. These are pre kindergarten level skills. (T 44)

Reading is done in a small group of up to three total students and sometimes with one-to-one instruction. (T 44-45)

Strategies used with the student include hands on instruction with manipulative, concrete objects, a marker board, chalkboards, sticky letters, magnetic letters, letter cards, and picture cards. (T 45-46)

Progress is noted in that the student knows many letters of the alphabet, can answer simple comprehension questions, follow a story line, understands the concept that words have initial sounds, and he is getting the concept of rhyming. (T 45)

In the beginning of the year student was able to count to five, could rote count and complete a simple pattern. (T46)

is focusing on number recognition, greater or less than, more complex patterns, telling time by the hour, and recognizing the value of a penny and a nickel. (T46)

Math instruction begins in a large group, and moves to a small group of two or three students, then individual one-on-one to reinforce a new skill, if necessary. (T 47)

Strategies include hands on activities, manipulatives, concrete objects; for example number, the magnet numbers or…marker board which he really enjoys, and manipulative objects so that he can count, like little toys, little teddy bears that we have, cups that we use for sorting, and blocks that we use for patterns and counting.” (T 47)

Curriculum is based on New York State standards. (T 47)

Progress is noted in that the student can recognize numbers up to seven, can sequence and sort them, tell greater or less than, match numbers to the correct amount, recognize the value of a penny and nickel, and can tell the time by the hour to whatever number he knows. (T 47-48)

In writing the student has . (T 48)

To address writing student does tracing and copying simple shapes, and worksheets. (T 48-49)

Student is generally well behaved. He does need reminders during transition time, social skills training reinforcement, and positive reinforcement. (T 49-50)

Social skills are in the student schedule, where there is role play. (T 50)

There is communication and collaboration with staff. (T 50)

believes the JCSE is appropriate and the student has made progress. (T 5152)

Student receives OT four times weekly for half hour sessions. (T 57)

Student is not . The OT and speech therapist “help him out with that”. (T 62)

Student receives outside of school. (T 62)

Student . (T 65-66)

PARENT WITNESS

) reviewed her educational and professional background and testified as the curriculum director at JCSE, for the 2013-2014 school year. (T 68-69)

“At the beginning of the school year I meet with the teachers to review previous documents for each student. I guide the teachers in developing the educational goals for the coming year. I observe both the teachers in the classrooms on a regular basis. I provide guidance with suggesting specific materials and strategies for each student, specifically created for each student utilizing their strengths and weaknesses.” (T 69)

JCSE provides hands on, creative, multi-sensory materials, OT, PT, speech, counseling, and staff trainings or workshops. (T 69-70)

has observed the student and speaks with his teachers and therapists on a regular basis. (T 70)

JCSE has about 44 students and seven classrooms. (T 70-71)

described the student. “a generally happy and well-behaved student… more reserved, more quiet…presents with expressive, receptive, and pragmatic language delays, a lot of focusing issues. He needs constant prompting to complete tasks and to follow through with procedures…we have to incorporate a lot of role playing and modeling to get him to follow through with tasks. He is . He needs constant redirection.

He needs all the instruction to be hands on, interactive, and in a small group setting…transitioning is difficult for him. He's usually last because he forgets what he needs to do…he just needs constant prompting. (T 71)

All classroom procedures were new to the student, such as where to sit, and circle time. He has made progress. (T 72)

Socially the student plays with others, speaks in a low tone, and plays alongside other student. He has made academic and social progress. (T 72)

Student has a one-on-one para. Para has completed coursework and is awaiting certification in regular and special education. (T 72-73)

Student receives the following related services: “speech therapy three times a week…occupational therapy three times a week, physical therapy four times a week, and vision therapy outside of school twice a week.” (T 73)

Related service providers are all hired by the school. (T 75-76)

believes JCSE is appropriate and the student has made progress. (T 76)

reviewed the DOE IEP, of 03/06/2013. (T 76, Ex 1)

believes goals are insufficient, a little vague and some were at too high a level. (T 77)

identified reading goal “with prompting and support will ask and answer questions”.

Goal does not delineate what kind of questions. “it's really important for (student) to be as specific as possible, so that we know what specific skills to target.” (T 77-78, Ex 1-8)

“The other area is his speech goal. It talks about two-step related commands. He was having difficulty at the beginning of the year following one step. And then on page ten, in the middle of the page where it's the goal is to ask and answer questions about - - in a text, it says, "Will read closely to determine what the text says," for a student that is just learning the alphabet. And then it says, "Will place specific textual evidence when writing or speaking to support conclusions drawn from the text." That's a very, very high goal for him. He cannot write. He's learning how to draw straight lines.” (T 78, Ex 1-8)

“…in the math goals it only mentions calculations, specifically addition and subtraction. He is only learning number recognition at this point and to provide addition and subtraction it's important…to be presented with many other math skills, including number recognition, rote counting, one-to-one correspondence, money skills, clock skills, and those are not included.” (T 78-79, Ex 1-10)

notes that writing goal includes “to compose opinion pieces”. Student is currently . (T 79, Ex 1-10)

Considering student functioning level, he would not be able to master the IEP goals in a year. (T 79-80)

Regarding the DOE recommended placement with a mobility para: “I think it would be very inappropriate…This is a . He needs constant redirection. He needs to be…seated near the teacher so that the teacher can physically redirect him and provide him hands on instruction. He needs specifically for math and reading one-to-one instruction in order to keep focused and motivated and to be able to complete the task.”

(T 80)

Classes are in English and Yiddish. All teachers and student speak Yiddish. (T 82-83)

It was determined that the student would fit into JCSE through a school psychologist that administers testing. Student is placed into a class with children of similar age and needs. (T 84-85)

Once placed in a class the teacher does her own testing. (T 87)

PARENT WITNESS

( ), the student’s mother, first noticed the child , in the hospital. looked into early intervention services, which began at . The child was diagnosed with .” (T 90-91)

At about two years of age the student attended a program with eight students and three adults. (T 91)

Parent attended the IEP meeting of April 2013. Parties discussed student weaknesses and goals for the coming year. (T 92)

A classroom observation was reviewed. (T 93)

Parties discussed a community school Program. (T 94)

Placement at PS 380 was recommended. saw the program before the meeting and did not feel it was appropriate. (T 94)

took her child to the recommended placement. “there was inappropriate behavior that my son of and he . And we had a hard time then calming him down and we didn't feel he is going to progress in such an environment.” informed Ms. of the above at the meeting. (T 94-95)

was provided with an alternative to contacted the school but was told they are not opening a new class. (T 95-96)

again, after receiving the FNR, intending to view the placement. (T 96)

went again to the placement in September. “September was basically the same setting that before. We wanted to have a look at the classroom, the setup of the class. And the to what we saw before and we didn't think…(the student)…was going to benefit from such a program and academically do well in that.” (T 97)

was concerned about the size of the recommended school. (T 98)

wrote to the CSE with her concerns, in August and September. No one contacted the parent regarding her concerns. (T 99, Ex B & C)

Student attended the JCSE for the 2013-2014 school year. (T 100)

If the DOE recommended an appropriate placement the parent would have placed him in that setting. (T 100)

has made payments to JCSE for tuition, in the amount of about $6,000.00. (T 100)

cannot afford to pay the balance. (T 101)

s does secretarial work and her husband is in sales. (T 101)

Income tax return for 2013 indicates income of about $16,000.00. (I note the transcript reflected $60,000.00 in error.) (T 101, Ex J)

Neither or her husband own a car. (T 102)

rents an apartment and has no savings account. (T 116)

believes her child needs . does not believe her child needs (T 102)

believes her child would benefit from being in a Yiddish class. (T 107)

Student speaks Yiddish and understands English. (T 111)

decided to send her child to JCSE sometime in August. (T 113)

signed the tuition contract on 09/19/2013. Parent had to start paying tuition. (T 114, Ex G 2)

DEPARTMENT OF EDUCATION POSITION

(IM) District Representative, presented the DOE position.

contends the evidence will show the DOE was offered a FAPE, IEP procedures were complied with, proposed placement would have met the student’s needs, evaluations were conducted within the past three years, JCSE is not appropriate as the student is not making meaningful progress, and equities favor the DOE. Therefore tuition reimbursement should be denied. (T 8-10)

could not present its second witness on the March 13, 2014 hearing date. (T 29)

Witness, Ms. , was noted to be unavailable due to the school being in session and her having a busy day. (T 29-30)

IHO noted to that the witness being busy is not a reason to forego her testimony and call her on another date. IHO advised the parties that the DOE had an opportunity to present its case and witnesses the day of hearing, and did not take advantage of the opportunity, regarding the second intended witness. (T 30-31)

contends testimony evidences a duly constituted team developed an IEP that addressed the student’s needs, and the recommendation is appropriate. (T 125 -126)

Program at JCSE is not appropriate as it does not include appropriate Yiddish instruction, and teachers are not qualified. (T 126-127)

Equities favor the DOE since the parent secured the placement at JCSE prior to the beginning of the school year. (T 127)

DOE WITNESS

(NG) reviewed her educational and professional background and testified as a DOE school psychologist and District Representative who attended the 03/06/2013 IEP meeting. (T 13-15, Ex 1-20)

Student was classified . (T 16-17)

NG recounted the recommendations made within the IEP for a bilingual Yiddish 12:1:1 class and related services. (T 17-18)

does not recall any disagreement. (T 18)

), a social worker who observed the student and conducted the social history, drafted the IEP goals. (T 18-19)

Goals address the student’s deficit areas. (T 19-20)

Prior to the meeting progress reports from the related service providers were reviewed. (T 22)

FINDING OF FACTS AND DECISION

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 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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).

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]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT for the 2013-2014 SCHOOL YEAR

DOE presented one witness, , who attended the March 6, 2013 IEP meeting. (T 13-15, Ex 1-20)

testified that, a social worker who observed the student and conducted the social history, drafted the IEP goals. contends the goals address the student’s deficit areas. (T 19-20)

The IEP contains a variety of insufficiencies which result in its being inappropriate for the student for the 2013-2014 school year.

contends that prior to the meeting progress reports from the related service providers were reviewed. (T 22)

OT report is provided which includes deficits in areas of fine motor, sensory processing, self care skills, and impaired motor control. Report notes that the student Recommendation is made to continue OT three times weekly for 30 minute sessions. (Ex 2-1)

Ten OT goals appear in the report. Four goals are included in the IEP, and do not appear related to the report. There is no evidence to support the goals as appropriate for the student. No justification is presented to warrant feeding therapy.

JCSE report of February 2014, does include areas the student is working on which include: , (Ex P)

I find the OT goals to be inappropriate for the student.

Testimony evidenced the inappropriateness of the speech goals. “The other area is his speech goal. It talks about two-step related commands. He was having difficulty at the beginning of the year following one step. And then on page ten, in the middle of the page where it's the goal is to ask and answer questions about - - in a text, it says, "Will read closely to determine what the text says," for a student that is just learning the alphabet. And then it says, "Will place specific textual evidence when writing or speaking to support conclusions drawn from the text." That's a very, very high goal for him. He . He's learning .” No evidence or testimony was presented to goals. (T 78, Ex 1-8)

I find the speech goals to be inappropriate for the student.

testified that the student writing goal is inappropriate as it includes “to compose opinion pieces”. Student is currently learning to draw lines. (T 79, Ex 110)

Similarly, the vision goals contain goals that include to copy figures and shapes. (Ex 1-7)

I find the writing and vision goals to be inappropriate for the student.

Bilingual Education Progress Report is provided and includes several goals. None of the goals are included in the IEP. Why these goals were developed, and whether they are appropriate for the student, is not explained. (Ex 6)

I find the testimony to be credible and evidence the inappropriateness of the academic goals. testified that the goals are insufficient, a little vague and some were at too high a level. (T 77)

IEP Reading goal “with prompting and support will ask and answer questions”, does not delineate what kind of questions. “it's really important for (student) to be as specific as possible, so that we know what specific skills to target.” (T 77-78, Ex 1-8)

Considering student functioning level, he would not be able to master the IEP goals in a year. (T 79-80)

I find the academic goals to be insufficient and not related to the specific special education needs of the student.

DOE witness, , recounted the recommendations made within the IEP for a bilingual Yiddish 12:1:1 class and related services. (T 17-18)

IEP does not recommended a bilingual class for the student. DOE recommends only a Yiddish class for 20 periods weekly. No recommendation is presented for other period of the school day. IEP also includes a notation that the student is exempt from a language other than English Diploma. No explanation is offered to explain how the student would meet any English requirement considering the student is recommended to a Yiddish class. (Ex 1-11 & 1-15)

IEP includes management needs of a health para, and appropriate seating.

Evidence presented at hearing details several more areas of need for the student that are required to meet his special education needs. Those are detailed below, throughout discussion of the JCSE placement. (Ex 1-4)

I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

I find the IEP of 03/06/2013, and resulting recommendation to not offer the student a FAPE for the 2013-2104 school. Year.

JCSE PLACEMENT for the 2013-2014 SCHOOL YEAR

Witness and documentary evidence support the appropriateness of the JCSE placement for the 2013-2014 school year.

Student is in a class of seven boys, ages five and six, and three adults, one teacher and two paras. One of the paras is for the student. (T 41-42 & 64)

Class appropriately considers both the student’s languages, primary Yiddish and some English. Classes are in English and Yiddish. All teachers and student speak Yiddish. (T 63 & 82-83)

described the student’s special education needs in academic and social areas. This included considering T 42-43)

JCSE developed educational goals based upon student areas of weakness. Student was observed and assessed. “…in the beginning of the year and then assessing him, we came up with the goals based on the New York State standards for his level.” DB detailed how the goals were drafted “specifically created for each student utilizing their strengths and weaknesses.” JCSE Plan for the student evidences the specific goals relative to the student. (T 43 & 69, Ex K)

Student were identified, support put in place and skills addressed. Student did not know any of the alphabet (T 43-44); Skills address included letter recognition, letter/sound relationship for all letters, phonemic awareness skills (T 44); supports included a small group of up to three total students, one-to-one instruction, hands on instruction with manipulative, concrete objects, a marker board, chalkboards, sticky letters, magnetic letters, letter cards, and picture cards. (T 44 46)

Further details specific to the student’s special education reading needs are contained in the JCSE Plan. (Ex K 3-4)

Math needs were assessed, areas of need identified, and supports put in place to address skills.

In the beginning of the year (T 46); Student is focusing on number recognition, telling time by the hour, and recognizing the value of a penny and a nickel (T46); supports include that instruction begins in a large group, moves to a small group of two or three students, then individual one -onone to reinforce a new skill, if necessary, hands on activities, manipulatives, concrete objects; magnet numbers, marker board, and manipulative objects so that he can count. (T 47)

Further details specific to the student’s special education math needs are contained in the JCSE Plan. (Ex K 1-2)

Student writing is affected and , which are addressed through student tracing and copying simple shapes, and worksheets. (T 48-49)

Social skills are addressed within the student schedule, where there is role play. (T 50)

Related services are provided through JCSE. (T 57-62)

Appropriate student seating is provided, as student uses a chair where his feet touch the ground. (T 65-66)

Student teacher detailed additional student supports: “constant prompting to complete tasks…role playing and modeling…constant redirection…all the instruction to be hands on, interactive, and in a small group setting…” (T 71)

testified to academic and social progress. (T 72)

For the 2013-2014 school year, I find the educational instruction at JCSE is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-2014 school year I find JCSE offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting (T 92), visited the recommended placement (T 94 & 96-97), communicated her concerns to the DOE (T 94-95 & 99, Ex B & C), and in no way thwarted any DOE effort to offer the student a FAPE.

Parent testifies that if the DOE recommended an appropriate placement she would have placed him in that setting. (T 100)

has made payments to JCSE for tuition, in the amount of about $6,000.00 and contends she cannot afford to pay the balance. Evidence includes payments totaling $3,500.00. Parent states that another $1,500.0 has been paid, but the proof is not yet available. (T 100-101, Ex H & I)

signed the tuition contract on September 19, 2013. Parent had to start paying tuition. (T 114, Ex G 2)

Income tax return for 2013 indicates income of about $16,000.00. (I note the transcript reflected $60,000.00 in error.) (T 101, Ex J)

provides some basic information about family finances. Neither parent owns a car (T 102), rents an apartment and has no savings account. (T 116)

Parent seeks direct funding, or prospective payment, of tuition for the DOE. Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of two pages of the 2013 tax return, indicating 2013 income of about $16,000.00. No evidence is provided as to any resources available. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2013-2014 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.

Tuition at JCSE is $39,500.00. (Ex G)

School week consists of 1,620 minutes, 75 minutes of which are devoted to prayer. This amounts to about 4.5% of the school week. (Ex F)

I find the parent is entitled to tuition reimbursement in the amount of $39,722.00. This is 95.5% of the total tuition.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 school year.

2. The parent shall be reimbursed, by the DOE, for tuition paid to JCSE for 20132014 school year, in the amount of $37,722.00.

3. DOE shall provide parent and JCSE with any required documentation and forms necessary to facilitate payment and/or reimbursement within ten days of the date of this order.

4. This decision is subject to appeal and review by the State Review Officer. Dated: April 15, 2014

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

DA:gc

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

ENTERED 03/13/2014

A Impartial Hearing Request, dated 1/28/14, 3 pages B Letter from Parent to CSE, dated 8/23/13, 3 pages C Letter from Parent to CSE, dated 9/21/13, 3 pages D Jewish Center for Special Education program description, dated 13/14, 2 pages E Attendance Record, dated 2/17/14, 1 page F Daily Schedule, dated 2013/14, 1 page G Enrollment Contract and Addendums, dated 2013/14, 4 pages H Proofs of Payment, dated 2013, 3 pages I Affidavit of Payment, dated 2/17/14, 1 page J Individual Tax Return, dated 2013, 2 pages

ENTERED 03/26/2014

K 2013-2014 JCSE Educational Plan, 16 pages L JCSE Teacher Progress Report, dated 2/2014, 3 pages M JCSE Speech Therapy Progress Report, dated 1/2014, 1 page N JCSE Physical Therapy Progress Report, dated 2/2014, 1 page O JCSE Vision Therapy Progress Report, dated 3/19/14, 2 pages P JCSE Occupational Therapy Progress Report, dated 2/2014, 1 page

DEPARTMENT OF EDUCATION

ENTERED 03/13/2014

1 IEP, dated 3/6/13, 20 pages 2 Report, dated 2/10/13, 5 pages 3 Progress Report, dated 3/1/13, 5 pages 4 Progress Report, dated 1/27/13, 6 pages 5 Vision Instruction Report, dated 2/15/13, 2 pages 6 Bilingual Education Report, dated 12/24/12, 5 pages

7 Teacher Interview and Observation, dated 1/16/13, 5 pages

8 Social History Update, dated 1/16/13, 3 pages

IMPARTIAL HEARING OFFICER

ENTERED 03/13/2014

I E-mail to the Parties Re: IHO Ajello Appointment, dated 1/30/14, 3 pages II Subpoena to DOE Chairperson CSE 7, dated 3/11/14, 1 page III Subpoena to , dated 3/11/14, 1 page

New York City Department of Education, Impartial Hearing Decision