New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 25, 2014

June 30, 2014

Actual Record Closed Date: August 8, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2014

Attorney — Student

Attorney — Student

Director of the (Via Telephone) — Student

Attorney — DOE

Assistant Principal (Via Telephone) — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2014

Attorney — Student

Attorney — Student

Attorney — DOE

Assistant Principal (Via Telephone) — DOE

School Psychologist (Via Telephone) — DOE

INTRODUCTION

On June 25, 2014 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (“DOE”) to provide a free appropriate public education (“FAPE”) for the 2013-2014 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:00 a.m. and continued on July 30, 2014 at 1:00 pm.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND.

The student is . He attended the a non-approved private school, for the 20122013 school year.

On June 21, 2013, an annual was held for him for the 2013-2014 school year. The by phone; sending a letter and reading second parent controlled web-site to obtain information about the recommended school, the parent did not think it could meet the student’s needs. She unilaterally placed for the 2013-2014 school year and now seeks tuition She seeks tuition reimbursement from September 9, 2013 through February 6, 2014 and direct payments through June 13, 2014. (Ex. B) The Parent’s Position

The parent contends that the DOE denied the student a FAPE because:1) the DOE “repeatedly ignored” the parent’s requests to visit the proposed placement which denied the parent of meaningful participation in the decision-making process; 2) the proposed placement was inappropriate for the child because the school is overcrowded and unable to implement his IEP. The parent further student with an educational; benefit and is appropriate for him. She also contends that the equities tip in her favor. Thus, she seeks tuition

THE DOE’S POSITION

The DOE contends that: 1) the parent has failed to establish that she has a contractual entitles nor has she established that she has a financial need for prospective payment; 2) the DOE offered the student a FAPE for the 2013-2014 school year because the parent was not denied meaningful placement for the student; and 4) the equities favor the DOE.

FINDINGS OF FACT

The child is classified as over which there is no dispute. Ex. D.1) Specifically, the child has him to

He also has . (Ex. H. 4 ,Ex. G . 7) According to reports submitted by an audiologist and a neurologist, it was within a classroom setting including: a smaller with interaction with children “without a classroom context that emphasizes severe, needs”, preferential seating near the teacher , ; extra time for assignments and tests, repetition and reduced rate of speed in presentation of information. Ex. H . 4-6 Ex. G . 8 ;

T. 151). The child currently which has a school population of about 125 students. He is in an ICT class . Some of these children, but not all, have IEPs.

On June 21, 2013, the Committee on Special Education (“CSE”) met and developed ”) for the child for the 2013-2014 school year. (Ex. D). At the meeting, the team recommended an Integrated (1x1x30 and groupx2x30 and consisted of a general education class with two teachers and 11 other children with IEPs, (Tr. 79) one general education teacher, one special education teacher and students with similar IEP recommendations to those of the student. (T. 79,80). She was also told at the IEP meeting that an ICT class was broken down into smaller groups during the day for instruction. (T. 170). The IEP also reflected the child’s management needs throughout the day. (Ex. D.3,9) At the meeting, the parent rejected a smaller type class setting, specifically a 12:1, as being too restrictive. (T. 169).

The parent did not disagree at the CSE meeting (T.80) The parent was told at she would receive a placement recommendation before the start of the school year which she was. (T.83) When the parent expressed her concerns about whether the recommended school would be able to implement the IEP, she was advised her to “speak with the school, and meet the teachers [to inquire] as to how they would go about addressing the IEP.” (T. 88-89).

A final notice of recommendation letter (“FNR”) dated August 2, 2013,was mailed to the parent offering a the 2013-2014 school year. (Ex. 2). The parent received the 9, 2014. (Ex. B) The FNR stated that “[y]ou have the right to visit this site before or after you provide consent,” and listed the school’s telephone number to arrange a site visit. (Ex. 2 ).

Between August 9th and closed for the summer and no one was there to answer the phone. (Tr.98-99). In addition, there was no answering machine available to record messages. The school reopened on August 26, 2013.

The parent was aware that classes were not in session during the summer. (T. 174). On August 13, 2014, the parent sent a letter to the stating that she would like to visit the school and meet with the student’s teacher. The letter was sent certified mail and was scheduled to be delivered on August 14, 2014. (Ex. F) The actual delivery date was August 29, 2014. (Ex. J) . The principal, not receive any letters from the parent which were sent August 13,2013. (T. 106,107, Ex. J).

On August 22, 2013, the parent prepared a second letter addressed stating for the first time that she is in disagreement with and the ICT class does not have adequate special education teacher support. The parent further indicated in visit to the proposed placement by phone, no one from the school answered the phone and there was no voice mail available to leave a message. In her letter, she further indicated a willingness to visit if “an invitation is extended”. The letter goes on to state that the parent is unilaterally placing the student at and she would be when it was received or if it was ever received by After August 22, 2014, the parent stated that she made no further attempts to call or visit the school, which was within walking distance from her home, when it re-opened on August 26th. The parent did not walk over to the school at anytime because she said she was working from either 8:00 am to 4:30pm or 9:00am to 5:00pm. She did not want to take a day off because:1) she would not get paid and 2) to request time off, she must inform the head office a week or two in advance. (T.99, 158,172-174).

Since the parent did not visit the school, she looked at The parent was concerned that the web-site stated that the school was such as PS 004” would not be able to provide the child with his mandated related services. (Ex. B.5). The web-site shows that the average size of an 22. (Ex. K) The evidence at the hearing was that the school was not “overcrowded”; the 5th Grade ICT class actually had 26 students for the 2013-2014 school year provided all the related services that were mandated for the student, including an ICT class. (T. 95-98).

On the same web-site upon which the parent relies, it shows that 87% of the parents of children with special needs who the school offers their children a wide enough variety of services and activities for their children’s said that students with special needs are educated . (Ex. K.3) It also shows that order and discipline are maintained in the it to parents. (Ex. K.2)

For the 2013-2014 school year, the student was comprised of 15 children. (T. 181-182) The evidence does not establish how many of the 15 children had IEPs. This class was taught by a co-teaching team of two lead teachers—one dual-certified in general education and special education, the other certified in special education—as well as two one-to-one teachers who were assigned to other students in the class. Many subjects, including reading, writing, and math, were taught in smaller groups of no more than seven to eight students. (T. 190-191).

At were made in accordance with the management needs set forth in For example, his teachers checked in with him frequently to make sure he understood the lessons, for his provided the student with . (T. 184-21, Ex. D. 3) In addition, all of the student’s related services listed in his .(T. 182).

The student made both social and academic progress during the 2013-2014 school year. (T. 163-164, 185-187). For example, the student started the school year as a very quiet and reserved student, he made Year Progress Report indicates that he also made progress across academic areas and is exhibiting confidence and enjoyment of school.(Ex. I). He has made particular (T. 186), and has even advanced two grade levels in reading over the course of a year. ( Ex. I .5).

His progress report also indicates that he ” towards skills. Id. at 13.

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). The relevant inquiry is not whether the proposed IEP provides all possible supports and benefits for a student, but rather whether objective evidence indicated that the child was likely to progress, not regress, under the proposed plan. A.H. ex rel. J.H. v. Dep't of Educ., 394 Fed. Appx.718, 721-722 (2d Cir. 2010).An IHO should not replace a District’s reasonable calculation with another possibly reasonable calculation, and actually the District’s should be accorded some deference. Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010), Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 (N.D.N.Y. 2009) The DOE has the burden of proof as to whether FAPE was provided.

FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in 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. School districts are not required to maximize the potential of students, but they are required to develop an IEP that is likely to produce progress, not regression, and to afford the student an opportunity to make more than mere trivial advancement. Walczak v. Florida Union Free School, 142 F.Jd 119 (2nd Cir.1998). Moreover, it is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in the original due process complaint. 8 N.Y.C.R.R. 200.5[j][1][ii], C.F.

v. N.Y.C.D.O.E., 2011 WL 5130101 (S.D.N.Y. 2011)

The parent contends that the DOE failed to provide the child was too large for the not have implemented the

With regard to the parent’s contention that she was denied an opportunity to participate in the IEP meeting, the evidence does not bear this out. DOE is required to consider the opinions of parents, private providers and experts. P.K. & P.K. v. Bedford Cent. Sch. Dist, 569 F.Supp.2d 371 (S.D.N.Y. 2008).There is no denial of participation where the parents can actively and meaningfully participate in the development of the IEP. The evidence shows that the parent attended the IEP meeting and was an active participant. She had input at the meeting and did not recommendation at that time. She voiced her concerns about the class size. These facts were not contested at the hearing. Rather, she expressed her time in her August 22 , 2014 letter to the CSE. That letter was not addressed to or sent to the school. Even her letter dated August 12, 2014 contained no indication that she was objecting for the opportunity to visit the school and speak to the teachers. At the time she wrote that letter, she was aware that she could not speak to the teachers during the summer when school was not in session. Thus, she was mindful that in order to meet with the teachers, she would have to go to the school in September. Despite that knowledge, she stated that she was repeatedly ignored by the DOE in August to set up an appointment to visit the school and meet with the teacher. This does not ring true for several reasons. First, all of her phone calls were made when the school was closed and she could not even leave a message so no one at the school was notified at the time of her calls of her desire to visit. She to the school, which was close to her home, to see why her calls were not answered. Had she done so, she could have seen that the school was closed for the summer.^[1] The DOE cannot have known or been aware of any of these attempts to contact the school for a visit between August 9 and August 26th when it was closed so she was not being “ignored”. In addition, the first letter requesting an opportunity to visit the school and speak to the teachers, though dated August 13th, was not delivered until August 29th 2014. The evidence does not establish that the second letter was ever delivered. Thus, August 29th was the first and only time the DOE arguably had notice of her desire to visit the school and meet with the teachers. The parent knew full well that her request to meet with teachers could not have been fulfilled at any time before school was back in session in September. Had she called the school after August 26th, her call would have been answered and an appointment would have been made but she did not. In fact, she did not even need an appointment. She was welcome at any time to tou the school. Thus, she was nether “repeatedly ignored” nor refused an opportunity to denied an opportunity to participate in the decision making process.

As to the parent’s second contention the recommended school would not have been able to implement the IEP, that contention is speculative. The evidence from the website provided by the parent, which was an independent, unofficial web-site, may have indicated that the school was “overcrowded”, the Assistant Principal said that he did not think that it was. There are no disciplinary issues at the school. Moreover, the same independent web-site indicated that with regard to special education students, the parent’s of those children said that their children were offered the a wide-variety of services. The evidence shows class for only 11 students and in which students were taught on smaller groups in contrast the child has 15 students –an unknown number of those two teachers in his class and classes were broken down into groups of seven or eight for instruction mandated related services available for the child. management needs of the child which are and serves as a guide to the child’s future teachers as to how to best present the child with new information including visual prompts, preferential seating, repetition of auditory information, instructions broken down, modeling, use of graphic organizers and extra processing time. The IEP also mandates that the child receive an FM unit for use throughout the day as recommended by the audiologist. (Ex. D.3,9) Speculation that the school district will not adequately the management needs as stated, fulfill the mandates or place him in an appropriate setting is not an adequate basis for unilateral placement and does amount to a denial of FAPE. R.E. v. New York City Dep’t take another day off to speak to the teachers as she claims she wanted to do all along since she knew that meeting with the teachers could not take place until September. of Educ., 2012 WL 4125833, *12 (2d Cir. 2012). It is presumed that the DOE will implement the IEP as written.

Even if the DOE had denied the child a FAPE, before tuition payment of any kind can be awarded, it is necessary to establish that the parent either paid all or part of the tuition that she seeks and that she is obligated to pay the full tuition even if she does not prevail in her case. Here, despite being given opportunity to present such evidence at the hearing, the parent, who was represented by counsel, has utterly failed to establish that she is is, that she had paid any portion of it or that she requires prospective funding. Thus, there is nothing upon which to base an award of tuition payments of any kind.

As the DOE pointed out in it closing statement, the parent by requesting perspective funding, has put her financial status at issue. In a case for direct tuition payments, “the parent has the burden of production and persuasion as to whether the parent has the financial resources to “front the costs of Cooke and whether she is legally obligated for the student’s tuition payments”. Application of a Student with a Disability, Appeal No. 14-029. See Appeal No. 11-130; Appeal No. 11-106 (limiting relief to reimbursement upon proof of payment because the parent had not “met her burden to establish that there were insufficient financial resources to ‘front’ the student’s tuition costs”). The parent has put on absolutely no testimonial or documentary evidence of her inability to pay. Additionally, she has failed to put the 2013-2014 school year into evidence or any proof or affidavits that she made any payments made for tuition. Therefore, the parent’s request for tuition reimbursement and/or prospective funding is denied.

Although , it has been concluded that FAPE was provided and conclusions as to the the equities favor the parent are not necessary, these issues will nonetheless be addressed below.

As to the met her burden to show it has provided the child with an opportunity to receive and educational benefit. The evidence shows that the child in instructed in groups made ell as academic domains. He has made particular progress in reading and writing (T. 186) over the course of a year. ( Ex. I .5). His progress report also indicates that he has made “steady progress” towards developing his auditory comprehension skills. Id. at 13. Thus, the reasonably calculated and had provided the child with educational benefit.

The equities do not favor the parent for tuition reimbursement since she bears the burden of proof. To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III). But, all factors are considered in equity in fashioning relief. Included in these factors is when a parent shows “they did not seriously intend to enroll….in public school”. Thies v. NYC Bd. of Educ., 2008 U.S. Dist. LEXIS 11354, *10 (S.D.N.Y. 2008).

The evidence fails to establish that the parent ever intended to place the child in any public school. The parent rejected the DOE’s recommendation ostensibly because of the DOE’s failure to address her request to visit the school and because of the information she obtained on the web-site because she never . The parent may have sent letters stating a willingness to look at the placement but her offer to look at the placement is not enough to establish that the equities tip in her favor. As noted above, there is no evidence establishing when she signed the enrollment for the 2013- 2014 school year or when or if her financial obligation to pay the full tuition kicked in. Thus, it is impossible to know if her efforts to effort made for the purposes of this litigation. If she truly intended to send the child to a public school, she could have pursued her efforts to visit and to speak to the teachers when the school was actually open and not during the summer when she could not even leave a message and she could have tracked her letters to see if and when they were actually delivered.

Ordered that: The parent’s request as well as any request for tuition reimbursement is denied. Dated: August 19, 2014

, ESQ.

Impartial Hearing Officer

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’S EXHiBITS

No. of

Document Description Date

Pages

A 2012-2013Stipulation of Settlement and Discontinuance May 8, 2013 7 B Parent’s Impartial Hearing Request February 6, 2014 7

C Parent’s Pendency Letter Brief May 7, 2014 5

D 2013-2014 Individualized Education Plan (IEP) June 21, 2013 16

DOE Website, Final Notice of Recommendation (FNR), last accessed June 18, 1 E http://schools.nyc.gov/Academics/ 2014

SpecialEducation/SEP/determination/fnr.htm

F Letter from August 12, 2013 2

G and Educational Evaluation April-May 2012 18

No. of

Document Description Date

Pages

H Update Assessment April 11, 2013 7

I 2013-2014 End of Year Progress Report June 13, 2014 17

USPS Tracking Confirmation for last accessed June 25, 1

J

2014

Insideschools.org Website for last accessed June 25, 5

K

2014

DOE EXHIBITS

1. IEP date 4/8/09, 11p.

2. FNR dated 8/2/14, 1p.

3. Parent Letter dated August 22, 2014 to CSE, 1p.

Footnotes

[1] The parent’s reason for not taking that walk to see if the school was closed—that she would have to take the day off from work-- is unconvincing. She could have walked over in the morning before going to work. She did not have to miss a day of work. In any event, there is not any evidence showing that she had a financial obligation to anything but if there is, the parent had more than a day’s pay at risk when she placed . It is therefore not unreasonable to assume that at some point, if she were serious about accepting a public school placement, she would be willing to arrange for time off to see the school and if necessary, to