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: November 30, 2012

December 21, 2012

April 30, 2013

June 20, 2013

July 25, 2013

August 9, 2013

Actual Record Closed Date: September 12, 2013

Hearing Officer: Israel Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30,

2012

Pamela Kablack, Advocate — Parents

Nomiki Makrillos, DOE Representative, CSE 7 (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21,

2012

Joan Harrington, Advocate — Parents

Inna Mogilevskaya, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2013

Pamela Kablack, Advocate — Parents

Goldie Deutsch, Mother — Parents

Yehuda Deutsch, Father — Parents

Marilyn Zagha, LCSW, CSE 7 — DOE

Denise Pilewski, IEP Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2013

Joan Harrington, Advocate (Via Telephone) — Parents

Pamela Kablack, Advocate — Parents

Goldie Deutsch, Mother — Parents

Yehuda Deutsch, Father — Parents

Marilyn Zagha, District Representative — DOE

Dr. Shoshana Nimchinsky, School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2013

Representative — Parents

Joan Harrington, Advocate (Via Telephone) — DOE

Mother — DOE

Father — DOE

Educational Director — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2013

Representative — Parents

Joan Harrington, Advocate (Via Telephone) — DOE

Mother — DOE

Father — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

On November 6, 2012, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Act, 29 U.S.C. ϸ 794 in the matter of I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: November 30, 2012, December 21, 2012, April 30, 2013, June 20, 2013, July 25, 2013, and August 9, 2013. Extensions of the compliance date were granted due to unavailability of witnesses, from both parties, as well as to allow time for the receipt of the final transcript and subsequently for the receipt of the closing document from the advocates of the parents. In addition, extensions related to the serious illness of the primary advocate for the parents, Ms. , which caused much delay in the proceedings. In a pendency order dated December 19, 2013, this IHO ordered that the DOE continue to fund attendance at the duration of this litigation, which the DOE agreed was pendency entitlement. Exhibit I.

This is a dispute with regard to the appropriateness of the Individualized Education Program (IEP) and the placement for for the 2012-13 school year. was classified as having Exhibit D, which is not in dispute. The Department of Education defended its IEP, program and placement of in a class , with related services of for in a school. The DOE position is also that the unilateral placement selected by the parents was not appropriate and the equities favor the DOE. Exhibits D, E, Tr. 370-372. The parents’ position is that the IEP, program and placement offered were not appropriate for and the unilateral placement for at was appropriate for and met her needs. Exhibit II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The obligation of the school district is to provide child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of selfsufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under IDEA, parents need not show that a private placement furnishes every necessary to maximize their child’s potential. They need only show that the placement provides educational instruction specially designed to meet the of a , supported by such services as are necessary to permit the child to benefit from instruction.”

In R.B. and H.Z. on behalf of C.Z. v. New York City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the child.”

Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE. Looking at the facts here, there do not appear to have been any procedural inadequacies that would rise to the level of denial of FAPE.

The second circuit has recently clarified “that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.” R.E. v. N.Y.V. Dep’t of Educ., 694 F.3d 167, 2012 WL 4125833, at 12 (2d Cir. Sept. 20, 2012).

Basing its decision on R.E., in R.C. ex re. M.C. v. Byram Hills School Dist., 2012 WL 5862736 (S.D. New York Nov. 16, 2012), at 11, District Judge Daniels wrote the following with regard to the effect of a parent rejecting an IEP:

Given the Second Circuit’s recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom a student would be placed in where the parent rejected an IEP before the student’s classroom arrangements were even made.

As is clear from another recent case, however, the burden remains on the school district “to prove that the proposed placement was adequate.” B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., F. Supp. 2d, 2012 WL 6691046 (S.D. New York Dec. 26, 2012), at 7.

R.E. reaffirmed its prior holding in T.Y., that a school district must “conform to the program offered in the IEP.” R.E., 694 F.3d 167, at 192. As stated in T.Y., 584 F.3d at 420, school districts do not “have carte blanche to assign a child to a school that cannot satisfy the IEP’s requirements.”

Another recent case, K.L. v. NY City DOE, 2012 WL 4017822 (SDNY), at 13, the court reiterated the conclusions of TY, at 419, that the federal regulations “only require that the parents have an opportunity to participate with respect to ‘the general type of educational program in which the child is placed,’ not the specific brick and mortar site.”

In a recent case in which a mother testified based on her single half hour visit to a school that her child would have been placed students, and there was evidence to the contrary, the judge concluded that her testimony was not sufficient “to warrant a finding that … [the] IEP was not ‘reasonably calculated’ to confer educational benefits.” The opinion continued:

… just as the Department may not rely on retrospective testimony concerning the services that F.L. would have received had the parents accepted the proposed placement, the parents cannot rely on observations of a particular teacher or classroom because there is no guarantee that F.L. would have been placed in the classroom visited…

F.L. v. NYC DOE, WL 4891748 (SDNY), at 14.

A recent SRO decision summarized the view that when parents reject a program and placement in advance, determination of whether the offered program was appropriate may be made on the basis of the IEP alone:

The sufficiency of a district’s offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42

[SDNY 2011]. If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to failure to implement it (id., see also Grim, 346 F.3d at 381-382 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]).

SRO 12-10.

In Grim v. Rhiinebeck, 346 F.3d 377, 381-382 (2d Cir. 2003), the situation was that the parents had removed their child in advance. The Second Circuit analyzed the appropriateness of the program offered by the school district on the basis of the IEPs alone.

In a case just decided recently, D.C. v. New York City D.O.E., 12 Civ. 1394, 3/25/13, at 43, Judge John G. Koeltl wrote that in cases “involving implementation of the IEP, testimony from the Department is permissible, but it must be limited to information that was reasonably known to the parties at the time of the placement decision.” Also, the Judge held with regard to inadmissibility of evidence by the Department of Education, “… only testimony regarding events that occurred after the unilateral placement decision was made [are inadmissible] or testimony of information that alters the representations that were made to the parent.” Id. at 42. Thus, once a unilateral placement has occurred, what occurred afterwards is not only irrelevant to the legal conclusions but could be inadmissible as evidence.

Here, the DOE did not conduct new testing of before developing the IEP. An observation of , within a class at , was carried out by , a from the Department of Education (DOE). This observer concluded that was able to follow along a group lesson, with prompting. But the report did document the significant role of the teacher who sat alongside in making this successful. Exhibit 3.

also testified at the hearing. She explained that the IEP Team’s recommendation was based upon “a combination of the teacher, and from the discussion during the Committee on ) review with the educational director and classroom teacher.” Tr. 136. She acknowledged that the educational advocate and the educational director from was what was needed for . Tr. 134. But she stated that she thought that the recommendation made by the team was appropriate as the teacher would be able to use appropriate educational strategies and along with the presence of the classroom the health that the IEP recommended for would allow for individualization in instruction. Tr. 134-135. also explained that in the classroom observation, was observed in a group setting, where she was able to participate in the group lesson, with someone prompting her and reminding her to raise her hand. Tr. 156. Had the parents accepted the site offered by the DOE, it appears that would have been available, Tr. 42, and the school also offers related services as were recommended in the IEP of .

After visiting the program offered, in June 2012, before the start of the school year, mother apparently sent back the Final Notice of Recommendation with a handwritten note on it explaining why she thought the placement offered was not appropriate for . She expressed concerns about the students at the placement site not being appropriate role models for since is verbal and sociable, and she expressed concern with regard to what she perceived as the vagueness of answers she received with regard to and teacher training. This note also informed the DOE that would be attending Exhibit

E. In a letter dated June 18, 2013, signed by mother and an educational advocate, it was again explained that would attend because of such concerns about the site offered. Exhibit F.

There is no question that the parent rejected the site offered before the beginning of the school year. It is possible that had the student attended the program offered, the DOE might perhaps have been able to address concerns raised. But the parent had to make a decision based upon the IEP and site known at that time and consistent with case law, the DOE cannot remedy and deficiencies in the IEP through information provided at a hearing or otherwise at a subsequent time.

There was abundant testimony in this hearing with regard to how , addresses educational needs. For example, each child in that program has their own individualized curriculum. Tr. 234. And there was testimony with regard to how ABA has been utilized successfully with at . Tr. 277. And during part of the day, the school has a kind of mainstreaming, in which participates in classes with less severely , which has been a positive experience for , including motivating her, Tr. 223-224. The Program at also appears to address related services needs with regard to . (The evidence does not support that , which the DOE also offered, was needed. See the letter from doctor saying it is not needed, Exhibit W and the testimony from parent about this service, Tr.

364. It was also pointed out that has not had in years. Tr. 249. ) Overall, it is readily apparent that the Program at is addressing and is appropriate for her.

The issue here is whether program offered by the DOE was reasonably calculated to meet educational needs. Perhaps it might work but the burden of proof, as explained above, is on the Department of Education. The DOE does not appear to have met this burden. The observation that the DOE’s psychologist referred to, in which appeared to do well in a group, was also one in which a teacher sat alongside the entire time and assisted her. There were no evaluations nor was there testimony from any professional who knows or works with her that supported the DOE’s recommendation. All who know and work with her opined that a program such as that offered by the DOE would not have been effective for . Ms. testified about how data are collected using with and this is effective. But “anything less restrictive … that we’ve modified or tied based upon our data, “did not support instruction in a large setting such as offered by the DOE. Tr. 241, 245. Ms. spoke of the technique that has been proven effective for ,could be fully and appropriately implemented at the proposed site. She explained that “these people don’t have a solid foundation in applied behavior analysis. I don’t think they would be able to deal with a student like … [] who has a and needs people that are really understanding of how to modify behavior.” Tr. 277-279

In class that attended at , which had a teacher for each student, the primary teacher was certified as was the teacher who worked with and traveled with her to the program at which and the other students are mainstreamed with students. Tr. 230-

232. This is different from the individualization that would have been offered at the DOE’s proposed site, where a ould have offered individualization for , not a certified teacher.

As stated above, it is possible that the DOE’s program might have been successful with . But given the concerns about whether she could function in a group setting such as was offered by the DOE and the lack of clarity with regard to whether the system that seems to work best for this would have been appropriately provided, it does not appear that the DOE has put forth evidence that supports that their proposed program, more likely than not, would have been successful. By contrast, the evidence abundantly supports that the program at was appropriate for her.

The evidence also shows that parents are not parents who automatically reject public school placement. mother testified that attended school in public school her first year of regular school; i.e., after preschool, for a year. But mother explained that regressed there. Her goals were not met there. The promised were not delivered. All of the recommendations were not implemented. Tr. 335

It appears that parents have cooperated and were seeking a program that they believed would meet needs. I therefore do not believe it would be appropriate to reduce funding here based upon equitable considerations.

With the parents having satisfied the Prong 2 Burlington/Carter burden of showing the unilateral placement was appropriate, and with the DOE having failed to satisfy its Prong 1 burden by preponderance of the evidence, as explained above, and with equitable factors not supporting a reduction in payment, I am ordering that the DOE reimburse the parents of for their costs at

There is the issue of. schedule includes some time for prayers during the 8:309:00 time slot. Exhibit T. But the prayers, according to testimony, take the form of primarily cultural songs, lasting about ten minutes per day. would typically arrive late to school, for reasons related to She

That attended , a program whose schedule includes “prayer”, should not pose a problem with regard to the DOE funding education. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “ The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive religious instruction in …[the private school].” Application of a Child , Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a sectarian school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for religious “worship, instruction, or proselytization.” This rule prohibiting use of federal funds to pay for worship, instruction or proselytization is from 34 CFRϸ 76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid. Zobrest did allow public funding of a sign-language interpreter at a Roman Catholic School.

Consistent with this case law, the fact that offers a very limited amount of “prayer” as part of its school day should not pose an obstacle to funding, especially here where it appears that was probably not even present for much of the very small amount of time devoted to this singing activity.

father testified that he has paid $93,000 to , Tr. 366, in full payment of the contract for attendance at the school during 2012-13. Exhibit G. The DOE must reimburse him for this expenditure.

ORDER

Upon receipt of confirmation of the amount paid by the parent to or the , the parent shall be reimbursed for $ , within two weeks. Dated: September 24, 2013

________________________

ISRAEL WAHRMAN, ESQ.

Impartial Hearing Officer IW:mv

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

A Impartial Hearing Request, 11/5/12, 5 Pages B Impartial Hearing Officer Decision, 9/21/12, 26 Pages C Program Description Undated, 5 pp D IEP, 2/8/12, 19 pages E Final Notice of Recommendation 6/8/12, 2 pages F Ten Day Notice 6/18/12, 2 pages G Tuition Contract 6/21/12, 3 pages H Parent Tax Return 2011, 2 pages I School Affidavit 12/12/12, 1 page J f undated, 3 pages K Complete Items Report 12/18/12, 46 pages L Incomplete Items Report 12/18/12, 24 pp M IEP 2012- 2013, 47 pages N Report, May 2012, 5 pages O Report 12/3/12, 3 pages P IEP Goals 6/1/12, 14 pages Q Report 12/12, 6 pages R Report 12/14/12, 6 pages S Goals, 12/14/2012, 2 pages T Class Schedule 2012-2013, 1 page U 2012-2013, 1 page V Attendance Record 12/14/12, 1 page W Letter Concerning dated 2/21/13, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 2/8/12, 19 pages 2 6/1/11, 6 pages 3 1/30/12, 1 pages 4 Report 12/16/11, 4 pages 5 Report, 12/21/11, 3 pages 6 , 6/24/11, 2 pages 7 Final Notice of Recommendation 6/8/11, 1 page

IHO

I Order on Pendency, 12/19/12, 5pp II Parent’s Closing Document, undated, 12 pp