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: May 8, 2014

Actual Record Closed Date: May 21, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2014

Esq. Attorney — Parents

Mother — Parents

Director, — Parents

Teacher, — Parents

(via telephone)

District Representative — DOE

On May 8, 2014, 2014, 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”).

The proceeding was initiated at the request of the parent by correspondence dated January 29, 2014. I was appointed Impartial Hearing Officer on January 30, 2014. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on March 3, 2014, after the conclusion of the resolution period, the initial hearing was scheduled for May 8, 2014, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 3, Exs. A, I)

Subsequent to my appointment, the parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. 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 concerning that were provided to the parties. (T. 3-4, 118, Exs. I, II)

The current compliance date is June 14, 2014. The record closed on May 21, 2014, upon my receipt of the final transcript. Background1

The student was in and classified . (Ex. C) That classification is not in dispute. (Ex. A) The 2013-2014 school year . (T. 18) The student was enrolled in the ”) during the 2012-2013 school year and was unilaterally reenrolled there by the parents for the 2013-2014 school year. (Exs. A, B) is a private school which is not approved by the New York State Department of Education as a school with which the DOE may contract for the delivery of educational services. (Ex. B)

The contents of this Background section are included herein as Findings of Fact.

On February 12, 2013, the parents had executed a contract with MM for the 20133014 school year which specified that the total tuition was $51,340 and required a nonrefundable deposit of $8000. The contract provided that if the student attended a public school notified no later than September 1, 2013 of the intent to accept that placement all tuition payments, excluding the deposit and late fees, would be refunded upon evidence of attendance. “Tuition Refund Insurance” was optional and was not obtained by the parents. (Ex. G)

The CSE had convened on May 9, 2013, specified that the student was a child with a Learning Disability, and recommended for the 2013-2014 school year: Integrated Co-Teaching Services (“ICT”) for Math, ELA, Social Studies and Sciences (5 periods per week each) in a Special Education Classroom and testing accommodations and transition activities. (Ex. C)

By letter dated July 2, 2013, the CSE recommended a placement in a community high school in Queens. (Ex. D)

By letter dated August 22, 2013, the student’s parent informed the CSE that she continued to have concerns about the appropriateness of the ICT recommendation but wanted to visit the recommended placement before making a decision and was unable to do so prior to September 2013. The CSE was notified that the student would attend MM until she could determine the appropriateness of the program and placement and that DOE funding would be sought. (Ex. E)

By letter dated October 16, 2013, the parent informed the CSE as to various concerns about the proposed program and placement and that the student would remain in and reimbursement of tuition there would sought from the DOE. (Ex. F) No response was received. (T. 95)

By letter dated January 29, 2014, the parents requested the instant impartial hearing. (Ex. A)

Positions of the Parties

The parents allege that the May 9, 2013 IEP was substantively and procedurally defective. They claim they stated specific allegations concerning deficiencies with regard to both in their impartial hearing request and that the DOE’s failure to submit evidence, either testimonial or documentary, constitutes a failure to rebut those claims or demonstrate that it offered a FAPE for the 2013-2014 school year. Further, they claim that the recommended placement was not appropriate. Accordingly, they assert that the DOE failed to provide a FAPE. The parents assert , their unilateral placement, provided an appropriate program for this student and that there is no basis for denial or limitation of reimbursement based upon equitable considerations. (T. 113-118, Ex. A)

The DOE asserts that the IEP was appropriate and timely and that an appropriate and timely placement was provided. It notes that the IEP is consistent with evidence presented by the parents concerning the student’s needs. With regard to the appropriateness the DOE asserts that light of the student’s strengths and weaknesses and the evidence is unclear particularly with regard to promotional standards and the qualification of teachers. Further, the DOE notes that the enrollment contract was signed and tuition payments made before the CSE review, that the school visit was made after the student commenced attendance that parental actions in connection with that school visit indicate that no meaningful discussion at that school was intended. The DOE asserts that equitable considerations warrant denial of reimbursement. (T. 7-8, 9-10, 111-113)

Cases Presented

The DOE presented no witnesses and submitted no documents and asserted that the documents it would have submitted had been submitted by the parents, specifically referencing the IEP (Ex. C) and the FNR (Ex. D) (T. 7)

A list of the documents submitted by the parents is appended. The parents presented the testimony of three witnesses:

(“the director”)

The director has director for five years and he is certified in New York State as a school building administrator. (T. 13) He oversees all aspects of the school including faculty, professional development and admissions. (T. 13) Extensive professional development is provided to all teachers commencing before school begins. (T. 17) Curriculum is developed by the faculty under his and an assistant’s direction from various models in mainstream and specialized schools and adapted to student needs. (T. 17-18) All staff meet weekly routinely and also have very frequent ad hoc meetings as needed.

(T. 52) is accredited as an independent private school in New York and is not required to administer Regents exams but elected to administer a U.S. History Regent’s exam. (T. 26-27)

There are 110 students in the upper school in grades with 25 students in grade

12. (T. 14, 19) The 2013-2014 is the upper schools’ first graduating class. (T. 48) Typical class size range from 4-9 in English and Math with a single teacher, 5-15 for Science with a head teacher and assistant teacher if the class exceeds 10 and depending on the subject even for a smaller class and second language classes about 6-12 with on teacher. (T. 15) Classes are grouped by ability for math and English and by grade levels for other subjects although different sections may be grouped by ability. (T. 15-16) All and other things. (T. 16) There is a full time director of who works closely with the school psychologist and has access to the student’s evaluations. (T. 24, 35) Standardized assessments although not administered at the student’s grade are utilized at the school, experienced teachers work to build skills and it is expected that the students will continue to receive certain accommodations in college. (T. 32-33, 40-41, 45-47) The student was assessed by regular papers, quizzes, tests and assessments given by teachers as is common in independent New York State schools. (T. 4-44)

The director participated in her admission , has observed her in classes and knows this student “particularly well.” (T. 18) Her English class has 6 students with a certified teacher, math has 7 students with a teacher who is not certified but has experience teaching special education students, social studies has 10 with a teacher who is not certified but has long experience , American Sign Language (“ASL”) has 5 or 6 students and a teacher who is certified as a special education and ASL teacher, and Art has 9 students and all her classes have one teacher. (T. 19-21, 34, 40) The school provides each student with at least twice a day Advisory sessions with someone who is aware of the entirety of the student’s program and can provide support and extra help as well as communicate with parents (T. 21-22, 24) This student’s Advisory teacher and is certified to teach art to general and special education secondary school populations. (T. 21) ` The student has expressions but has been very , wants to pursue that as a career and has been on that track. (T. 23-24, 25) That college did not require SATs for admission and he does not believe the student took them. (T. 25, 39) The student took the U.S. History regents exam in her sophomore year but he had no recall as to whether she passed. (T. 28-29) The student also took the PSATs in the 2011-2012 and 2012-2013 school years but he . (T. 35, 38)

(“the teacher”)

The teacher has a secondary general education certification and has completed credits for a special education certification which is in process and has substantial special education experience. (T. 54, 56) He develops curriculum for classes and is directly supervised by the director. (T. 57) He is currently the student’s English teacher but has known her directly for the past 4 years and was her teacher in grade. (T. 58)

He described the student’s strengths as . (T. 59) However, she does not appear to enjoy . She can decode at lags behind and over a long period of time as well as in retaining abstract information. She needs a modified test environment and modified materials. (T. 60, 63, 67-68) Her writing issues are similar to reading but with greater anxiety. (T. 70) She can organize her writing but is unable to vary her sentence structure and needs prompting to use transitional phrases and uses simple vocabulary. (T. 70-71)

At the beginning of grade school year, the student was estimated to be at 8.5 grade reading comprehension level based upon a prior grade Fountas & Pinnell h assessment and a teacher assessment at the end of grade. (T. 81-82) The student’s reading grade level and above with support but not consistently and her decoding is at a level. (T. 64, 82) Her writing level in September 2013 was estimated to be independently. (T. 85) Her English class has 7 students who are at similar reading, writing and language skills. (T. 69-70, 84) The class has one teacher and reading is worked on sometimes in smaller groups, guided comprehension questions are provided, passages are chunked and very small, visual stimuli are utilized and aural aids are sometimes provided. (T. 62, 65-67) Writing curriculum includes outlining using a structured sequenced methodology.

Since September 2013, the student improved in reading comprehension and gained confidence and her need for support. (T. 64-65, 69) In writing she has learned the sequence of pieces that need to be in an essay and is writing with greater clarity and more independently and requires less scaffolding and one to one support than at the beginning of the year. (T. 72-73) She is more confidence . (T. 72) English goals for this student include increasing fluency and contact with more complex sentences to provide a model for writing as well as access to literature, although modified, presented in other schools. (T. 68)

The student took Math as an elective but did not have the requisite skills for certain courses and is taking a course focused on math as it occurs in the natural world instead of specific modes of math expression, (T. 79, 83, 86) The teacher testified that were similar in with being able to translate a word problem into a math expression and inability to retain a procedure in memory for a long time, but that in math she also . (T. 75-77) The student requires regular prompts to stay focused, modified instructional rate, multi-modal methods of instruction, modified tests with open book, classroom use . (T. 76-77) Her were reported by her math teacher to be at 9th to 9.5 grade level independently but with testing accommodations. (T. 77, 82-83, 87) Math progress has been demonstrated by more effective creation and use of notes. (T. 77-78) The student is taking her 4th year of ASL, is using those skills to assist with memorization in other courses, as the kinesthetic component enhances her ability to retain. (T. 78) She is also in a transitions class with regard to post . (T. 79) The teacher stated that her progress overall this year was significant. (T. 80)

The teacher testified that the student benefits from the small class and small groups provided as well as the support and individualized goals. (T. 74)

Mother (“the parent”)

The parent described the student as a very concrete thinker, anxious about new things, sometimes unable to make common sense assumptions, avoidant when something is challenging and lacking self- . (T. 89) At the CSE review the parent expressed her concern that an ICT class would not be appropriate because the class size would be too large, curriculum would not be modified appropriately and the one to one support would be insufficient. (T. 90-91, 102-104) The student’s teacher was present and agreed with the parent. (T. 91, 104) The parent attempted to visit the recommended school during the summer after receiving the FNR at that time but was told there was no special education staff available until September. (T. 92, 98) The parent was unable to visit in September due to the illness and death of her father but went to the school in beginning of October and concluded that it was not appropriate. (T.91-94, 101, Ex. F) She could not recall if she had taken the student’s IEP to the recommended school. (T. 102) The parent stated that she would have considered sending the student to school had it been appropriate notwithstanding her contract with and (T. 95-96) If the student was removed , based upon their good will and her past experience with M, that the parents would have been released from the contract and she was willing to take the risk. (T. 106, 109-110) The parents did not obtain the available tuition refund insurance because it was believed that it did not apply to a situation of removal to a public school. (T. 109) The student last attended a public school . (T. 100)

The parent has observed progress in confidence level and ability to request help when needed and persistence. (T. 97, 98-99) The student is graduating this year and will attend a community college for which transition she has been . (T. 98)

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 Prong 2. Educ. Law 4404[1][c]

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 procedure, s, 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 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]). 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 DOE presented no witnesses or documents in this matter and relies upon documents submitted by the parents. It asserts that the evidence shows that the DOE provided a valid IEP and an appropriate placement that could implement the IEP. However, the parents in their impartial hearing request made numerous claims with regard to the IEP. These included that the IEP was substantively defective in that the ICT program was not reasonably calculated to enable this student to make meaningful educational gains. The parent credibly testified that both she and the student’s teacher stated this at the review. There is no testimony as to why the CSE’s recommendation was made and the parent and teacher’s view rejected by the CSE. Further, there is no documentary evidence in the record indicating what information the CSE considered at the review. 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.

I conclude that the DOE has met its burden in the circumstances here and that the DOE has not established that the program was substantively appropriate. Accordingly, I find the DOE has failed to establish that it provided a FAPE. I therefore do not address the parents’ other claims with regard to the review, program and placement.

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. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they 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 in 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).

I find credible the testimony of the director and the teacher. Record references not specified below are stated above.

The testimony concerning this student’s needs by the DOE. I note that the IEP reports substantially the same issues. (Ex. C) The testimony, set forth above, shows provided a program designed to address her unique needs and build upon her strengths in connection with transition to post-secondary education. (Ex. I) I note that testimony supports my conclusion that the goals stated in the IEP were substantially pursued and that management needs identified in the IEP were . (Exs. C) Further, staff appropriately consulted with regard to the student’s program and communicated with the parents.

With regard to the DOE’s claims program, I am persuaded that assessment of this student in the 12th grade was grounded upon standardized assessments followed by adequate evaluative materials and I conclude that she progressed in the 2013-2014 school year. (Ex. H) However, I note that progress is only one indicia of an appropriate program and a demonstration that that in fact occurred is not mandatory for a determination that a parentally selected program is appropriate. Gagliardi. Further, her teachers have significant special education experience. It is well established that a lack of staff special education certification does not require a conclusion that the program is not appropriate. Carter.

Accordingly, I find the parents have met their burden to demonstrate that the program they selected was reasonably calculated to enable this student to make meaningful educational gains.

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. The DOE has the burden with regard to this issue.

In the instant matter there has been no claim and there is no evidence indicating that the parents did not cooperate with the CSE in the development of the IEP. The sole district claim with regard to this matter is that the parents did not cooperate with regard to the placement. However, I note that the parent credibly testified as to the reasons that occasioned delay in visiting the proposed placement and I conclude that she had a goodfaith belief that it was not appropriate, i.e. that the IEP’s goals could not be accomplished in that placement and the student would not make meaningful educational gains. In weighing the equities, I find no basis for a denial or limitation of reimbursement in the circumstances here.

ORDER

The DOE shall immediately reimburse the parents $51,390 for tuition for the 2013-2014 school year upon receipt of satisfactory evidence that the tuition charged usual and customary rate and of parental payment and the student’s attendance. Dated: May 27, 2014

Judith Schneider, Esq. gc

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

JS:gc

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

A Impartial Hearing Request, 1/29/2014, 2 pgs. Parents

B Findings of Fact and Decision, 4/23/2014, 11 pgs. Parents

C IEP, 5/9/2013, 12 pgs. Parents

D FNR, 7/2/13, 1 pg. Parents

E Parent Letter to CSE & Fax confirm., 8/22/13, 2 pgs. Parents

F Parent Letter to CSE & Fax confirm., 10/16/22, 3 pgs. Parents

G enrollment contract, 2013-2014, 2 pgs. Parents

H 1st Trim Rpt & Attend Rec., 2013-2014, 8 pgs. Parents

I Class Schedule 2013-2014, 1 pg. Parents

J Affidavit of Payment, 1/15/14, 1 pg. Parents

K Proof of Payment, various dates, 11 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer