New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parents

Dates of Hearing: July 9, 2014

July 26, 2014

September 5, 2014

Actual Record Closed Date: September 27, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2014

Dir-Educational — Parents

Parents

CSE District Representative — DOE

CSE Special Education Teacher — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 28, 2014

Advocate — Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2014

Advocate — Parents

Mother — Parents

CSE District Representative — DOE

On July 9, 2014, July 28, 2014 and September 5, 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 March 28, 2014. (Ex. A) I was appointed Impartial Hearing Officer on April 1, 2014. I was available to commence the hearing within 14 days of appointment. At a telephone conference with the parties conducted on May 5, 2014, hearing dates were scheduled for June 19, 2014 and July 9, 2014, the first mutually available dates for the parties, their witnesses and the hearing officer. The June 19, 2014 hearing was adjourned at the request of the parents due to the unavailability of their witnesses. Additional hearing dates were scheduled subsequently. (T. 3, 87, Exs. I L)

Subsequent to my appointment, the parties moved to extend the compliance date on 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 written decisions were provided to the parties. (T. 4-5, 87, 102-103, 128-129, Ex. II)

The current compliance date is November 4, 2014. The record closed on September 27, 2014, upon my receipt of the final transcript.

Background 1

The grade. (T. 55, Ex. 1) His ”), which is associated with for the 20112012 school year. (T. 52, Ex. I) He had been unilaterally re-enrolled in that school by his parents for the 2012-2013 school year.

The CSE convened on May 30, 2012 (“the review”), to develop a program for the 2012-2013 school year. It recommended a special class in a community and 1x30 (group) and testing accommodations. (Ex. 1) In person participants in the review were a CSE special education teacher who was also district ), a DOE school psychologist and a parent member , then assistant and the student’s mother participated by telephone. (Ex. 1)

The parents executed an enrollment contract which specified that the student was entering and that . That contract is undated. (Ex. I) The parents’ first payment ($1500) was made on June 8, 2012. (Exs. H, J) The parent was unsure of the date of execution of the contract but acknowledged it was when the first check was provided. (T.115-116)

By letter dated June 27, 2012, the CSE recommended a placement in a community school. (Ex. 2)

By “10 day notice letter” dated August 15, 2012, the parents informed the CSE that the parents were unable to visit the recommended placement and that the student would be enrolled seek DOE funding if the recommended placement was not appropriate. The letter specifies no objection to the proposed program. (Ex. D)

The parent did not visit the school. (T. 127)

The parents seek full reimbursement for tuition payments made for the 2012-2013 school year. (T. 143)

Cases Presented

Both parties submitted documents. A list of documents in the record is appended.

The DOE presented the testimony CSE special education teacher and district representative at the review. (Ex. 1)

T. 24) With regard to information relied upon by the CSE, he testified that it was his customary practice to review documents in the student’s file, review reports submitted and listen carefully to the review participants including the parents but he had no

The speciffications of this Background section are included herein as Findings of Fact. recollection as to what was done in this review. (T. 20-21, 26, 47) He could not recall any of the specific documents considered in this review but for a report from the student’s then current teacher. (Ex. 3) No other evaluative material purported to have been considered by the CSE has been submitted. asks the staff-student ratio in the class the student and could not now recall. (T. 41-42) He acknowledged that the IEP stated that evaluation results reported came from June 2007 testing but stated that he believed that the report and had discussed certain results of that report and that there was a clerical error in the IEP. (T. 29) However, he could not recall the specific results discussed or if an updated psychological report had been considered (T. 29-30) He testified in the review, was trained as knowledgeable what went on in the classroom. (T. 41-42) participated although he could not recall whether she provided services to the student. (T. 37)

He believed the issue of the student’s interpersonal relationships had been discussed although had no specific recall as to what was said. (T. 33) However, he stated that anything mentioned by the student’s teacher would have been discussed. (T. 34) testified that the IEP reported on and addressed various emotional issues that affected the and relevant goals. (T. 36-37, 38-40)

the information provided. (T. 26) Testing accommodations were provided that would provide more . (T. 25) stated by his teacher in her report in that there would be no more than 12 students and the student’s , referenced in the IEP, could be addressed.

(T. 27) With regard to related services, he testified that they would be based upon provider a provider report. (T. 42-47)

The parents presented the participated in the review and . (T. 52, 53, 82 ) The classes for its students were placed with similar grade levels at the school which housed it. (T. 82) The provides providers available to . (53-54, 55) It had a literacy . (T. 54)

The student was in a class of 7 with 2 teachers but the class could have gone up to 10. (T. 79, Ex. F) The morning academic part of the program was preceded by a 45 minute period for prayer, morning activities and breakfast. (Ex. C) With regard to the Monday-Thursday academic program, the morning session from 9 to 12 covered secular subjects only and both teachers were certified special educators. (T. 58, 69, Ex. G) Lunch was from 12-12:30. (Ex. G) The afternoon portion of the day, ran to 4:30, was taught by a rabbi and an assistant teacher and included religious subjects instruction and certain other classes. (T. 58, Ex. G) On Friday the same program was provided but all the courses were abbreviated. (T. 71-72) stated that the morning courses followed the Common Core curriculum. (T. 78-79)

The student progressed in reading from a 4.5 to approaching in September to in June. (T. 56,64-70) He also progressed in math one full year from an around 6th grade level to an . (T. 76, 77-78) Although the student had academic strength in math, he had some difficulties in problem solving and still required special education support in that area. (T. 77) Because of his math strength he had been placed in a mainstream class of perhaps 20 with various supports but could not handle it. (T. 73-74) The assessment of his functional levels was based upon a assessment, as a standardized assessment as well as school and teacher made assessments, anecdotals and progress reports. (T. 65)

related services from appropriately qualified/supervised providers at different times during the days but was not aware of what specific times. (T. 83-85) She stated that a behavioral modification plan had been developed for this , an LCSW who provided service to him. (T. 63)

The parent

The parent testified that she was told at the review that the CSE was recommending . (T. 108) She did not agree with the recommendation because the student that opinion. (T. 108-109, 111, Ex. 1) She also that he had progressed.

(T. 112, 117-118) The parents paid in full for the student’s tuition at the Academy. (T. 113, Ex. G, I, J). They decided to send the . (T. 117) The contract was signed in June when the first payment was made. (T. 115-116) The parent believed that the CSE team had not listened to her concerns

Positions of the Parties

In their hearing request, the parents asserted that the IEP was procedurally and substantively defective. With regard to procedural defects, the parents hearing request claims include that that they were denied a meaningful opportunity to participate, that appropriate information was not considered, that information available to the CSE did not support the recommendation made. that the class size was not appropriate for this student and that related service mandates were not appropriate. The parents claim that the they provided was appropriate. With regard to equitable considerations the parents claim that they fully cooperated with the CSE and that there is no basis for the denial or limitation of reimbursement on equitable grounds. (Ex. A) The parents make no claims concerning the specific placement proposed and do not assert that the DOE did not offer a placement that could implement the IEP. (T. 127) The parents are not requesting direct^[2] payment but seek reimbursement for by them.

The DOE asserts that the IEP was procedurally and substantively appropriate and that the program proposed was reasonably calculated to enable the student to make meaningful educational gains and a placement was offered that could implement the IEP. Further, the DOE asserts was not appropriate. It claims that the parents did not cooperate with the CSE and, further, notes that the parents’ program has a substantial religious component. The DOE asserts that equitable considerations warrant denial of reimbursement. (T. 137-139)

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 Prong 3 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 procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

I find recollection of this review. With regard to the review and the information available to the CSE, I note that the CSE had a report from the student’s teacher, and the participants was very knowledgeable about the student, and indeed relied upon in this proceeding by the parent, as well as the social worker who was providing direct service to him. In describing the student, the IEP incorporated the teacher’s comments as well as the parent’s concerns as expressed in her testimony. (Exs. 1, 3) I note that the

Although the parent I note that that was not appropriate and that the student was in a class concerning the class size required and note that she has asserted no expertise with regard to educational methodology or experience with the recommended class configuration to support her opinion.

With regard to related service testified that they would have been based upon provider reports or previous mandates and the parents have submitted no testimony or documentary evidence even asserting that they were not appropriate.

With regard to the claim of a denial of meaningful participation, I note that the parent acknowledged to express their opinions and I conclude that the claim is based solely on the CSE’s ultimate determination.

With regard to the claim that the IEP goals were not appropriate, I find credible this, and note that the goals covered all area of as to any objection or concern with the goals and that the parent’s testimony with regard to this subject I give little weight as no basis for her opinion was asserted. Further, any defects with regard to goals did not, I find, for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process or compromise the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP.

With regard to the references to the 2007 testing, I find that error de miminis here where the IEP fully described the student.

The parents have stated that there is no challenge to the placement proposed. (T. 127)

Based upon the foregoing, I find that the DOE has met its burden to establish that the IEP was reasonably calculated to enable the student to make meaningful educational gains and that it provided a FAPE for the 2012-2013 school year.

Although not necessary in view of the foregoing findings, I consider Prong 2 and Prong 3 of the Burlington/Carter analysis.

Prong 2

When a public school system has failed to provide a FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find credible the to the 3 hour morning program and find that that program is aligned with the student’s needs and that the student has progressed academically. Although the lack of documentary evidence supporting her testimony is troublesome, I conclude her testimony with regard to the morning program was sufficiently specific and reliable in the circumstances of this student. However, with regard to the 4 hour afternoon portion of the program, taught by different teachers, I note that the bulk of it is undisputed to the afternoon academic program. I conclude that the record is unclear as to the qualifications of the rabbi and assistant teacher and their teaching credentials. I also note that there is no evidence as to the precise times that related services were delivered and I find no basis for concluding it was not evenly distributed between the morning and afternoon.

Based upon the foregoing, I conclude that reimbursement if appropriate should not charged.

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 signing of tuition contract to hold a place and does not shift the equities in favor of the school district. See Appeal No. 10-101. The DOE has the burden of proof with regard to equitable considerations. Educ. Law 4404 [1][c]

In the instant matter, however, the parent made a determination without visiting the proposed school to determine whether the placement might be appropriate allegedly because she thought the student needed a smaller class. No other reason has been asserted by the parent. However, the could have , and there is no evidence in the record that the parent had any basis for concluding that it would be fewer. I note that various circumstances at the proposed placement might have compensated for any difference in class size but the parents did not provide the DOE with the opportunity to demonstrate whether that was the case. Further, the 10 day notice provided by the parent made no reference to class size or the IEP and indicated only that the parent had not yet had the opportunity to consider the placement which in this proceeding she testified she never intended to do.

In the foregoing circumstances, I find that equitable considerations favor the DOE and that reimbursement, even if otherwise appropriate, should be denied.

Order

This matter is DISMISSED.

Dated: October 14, 2014

, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 5/30/2012, 12 pgs. Department of Education

2 FNR, 6/27/12, 1 pg. Department of Education

3 School Progress Report, 5/30/12, 1 pg. Department of Education

4 WITHDRAWN

A Impartial Hearing Request, 3/28/14, 5 pgs. Parents

B Program Description, 2 pgs. Parents

C WITHDRAWN

D Ten Day Notice, 8/15/12, 2 pgs. Parents

E Class Profile, 2012-2013, 1 pg. Parents

F Student Progress Report, 2012-2013, 1 pg. Parents

G Class Schedule, 2012-2013, 1 pg. Parents

H Affidavit of Payments, 6/14/13, 1 pg. Parents

I Enrollment Contract, 2012-2013, 1 pg. Parents,

J Parent Proof of Payment, 2012-2013, 4 pgs. Parents

K Attendance Record, 6/24/13, 1 pg. Parents

L Request for Adjournment, 7/28/14, 1 pg. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer

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Footnotes

[2] The parents’ claim in their hearing request that the CSE was not properly constituted was not addressed during this proceeding and I conclude it has been abandoned. (Ex. A)