New York City Department of Education, Impartial Hearing Decision

FINIDINGS OF FACT ANDORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 10-17-13

2-10-14

4-2-14

4-3-14 Record Close: 5-5-12 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 17, 2013

Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 10, 2014

Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 2, 2014

Parents

DOE Representative — DOE

School Psychologist, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 3, 2014

Parents

DOE Representative — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

) was a student who was classified as having a . In June 2011 when she , old, she was recommended for a class in a community school with related services for in 2011-2012. The parent, K or parent) disputed the recommendation, unilaterally placed her and brought the instant hearing seeking reimbursement of tuition for the 2011-2012 school year. IHO Ex. I.

The hearing was requested on July 10, 2013, and a district motion challenging the due process complaint notice as insufficient was denied on July 18, 2013. A prehearing conference was held on August 22, 2013. The hearing convened on October 17, 2013 and again on February 10, 2014, adjourning on both dates due to the parent’s request for time to seek representation.^[1] Extensions requested in this hearing were granted, and the decisions reflect specific requests made by the parent for additional time. IHO Ex. III. The hearing convened on April 2 and April 3, 2014.

DISTRICT CASE

Freda Steinberger testified that she is a school psychologist, working in the past assigned to the CSE to evaluations of children and participate in CSE review meetings to develop IEP’s. She participated at the IEP meeting for Leah on June 3, 2011. Present at the meeting were the parent, , the director of the private school, of the DOE, and herself. She stated was recommended for a class size, with related services of counseling and speech, in a community school. She was going into the stated that she did not recall disagreements about goals, classification, or recommendation. Both parent and director were concerned about some emotional issues, noting could get and there were problems in how she responded, as well as problems . She stated that the would address those needs with the supports in place. In addition had testing accommodations and was also to be provided with transitional services. Ms. explained that the information from the evaluations and participants at the meeting showed that she had improved but continued to need the support of the small class size. Math was at grade level, reading on level. The recommendation was designed so she could get more attention for her needs in reading and math, and also her needs; counseling was also continued as a recommendation to address .

Asked by the hearing officer about the recommendation in the prior IEP for a class, Ms. consulted the IEP and stated that a small class size was deemed to be too restrictive. She stated did have some abilities, and enjoyed writing, so “you also want her to be in a class where she’s going to have the ability also to have some advantages to enhance your skills that she does possess.” She was not aware of the class size although she knows it as a small school with small class sizes. She did not know if a smaller class size of 12 students existed in the community school level. She pointed out that there was a concern raised that Leah didn’t get speech and language therapy services , and noted that she would have support at the public school.

Asked about goals for basic life skills, Ms cited the needs noted in transition services for independent living for investigation of housing options, and functional life skills for preparation for independent living. She conceded that these were not entered in the IEP as goals . She acknowledged that , was borderline for . Asked if there was really a possibility would be able to live independently and be competitively employed, Ms. said it was certainly a “hope.” She cited college programs, vocational programs, volunteer programs, and the expectation would get a high school diploma, graduating from , although she did not know their graduation requirements and whether they could grant diplomas. She explained that there was steps in between, would start to explore the options with the support of her family and school. Tr. 50-106.

PARENT CASE

Mr. in the school in the academic field as . Her made it impossible for her to be in a large class setting, any larger than the class she was in . He acknowledged that he was not at the IEP meeting on March 3, 2011, which his wife attended. He complained that when he went to the recommended school, the y didn’t show him the actual class she would be sitting in.

Her class setting at was five or six students, and there were many points the schedule with a teacher would take her out and have a one-on-three. He repeated that this was necessary because of with her academic capabilities. He cited a report from the school that stated that when , she , as well .

Mr had been attending for several years, was very happy there and making progress. Asked about progress specifically in the 2011-2012 school year, he acknowledged “very slow progress,” but argued that there would have been no progress at all if she didn’t have the small class. He said that she was happy there, and has social life in the school; the school did a very good job. He did not know the names of the teachers, but stated that they were “all licensed to be a teacher in special ed.” He stated he knew that from the school. After a brief recess, Mr. modified his testimony to state that the teachers were all “experienced and they had some kind of training at some level,” and they were all overseen , who has several licenses and years of experience in special education prescribes special , “the special learning curriculum” for her individually. He acknowledged that he assumed the program was a licensed program, but didn’t know the “nitty-gritty of each particular teacher.” Asked about the schedule he presented as evidence, he said that he didn’t have to talk about the schedule. He stated that even know there was a religious part of the schedule, it was a very small part as some of the Hebrew subjects were language. He either two or three teachers, one a main teacher and then an assistant, perhaps other teachers for different courses. Leah has been out of the school for two years, and she is happy. Asked what she is doing, he said she was babysitting young babies.

Mr. stated that most of the money there is should go directly to the school, as he might have paid the small fee of $500 or $1,000. He stated that he did not have any record of paying it “at the moment, not with me.” That was her last year of school, and he was not sure what his income was, conceding that it was not more than $20,000. He stated that it was from selfemployment working as a cantor on the holidays and selling boxes to stores in the neighborhood. He did not provide any documentation. He stated that he was not receiving any scholarship of financial aid. It was his understanding that he owes the school $30,000. Asked when he signed the contract, which did not have a date on it, he stated that he signed it in the middle of 2011, before the summer or in the summer. Tr. 129-134, 161-162.

FINDINGS

I The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

The purpose of the IDEA is to ensure that all children with disabilities have available a free appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of their parents are protected. An appropriate program is one which is reasonably calculated to allow the student to receive educational benefits and that the recommended program is offered in the least restrictive environment for the child. 34 C.F.R. 300.550(b); 8 N.Y.C.R.R. 200.6(a)(1); see also Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

An appropriate educational program begins with an 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. 07-008, Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

In this case, the DOE failed to sustain it burden that it provided a FAPE for the child. I cannot find persuasive Ms. Steinberger’s explanation of a 15:1 class in a community school for this child with borderline intellectual disability. There was no reasonable expectation that the student would graduate from a community school, and the statement indicating “hope” as the basis for transition goals was hardly a goal based on evaluations of the child’s needs.

Thus, analysis turns directly to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for Leah. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that an educational program designed to meet Leah’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I find that the parent failed to sustain that burden of showing to be an appropriate placement for the student. There was no evidence that her teachers had any kind of educational qualifications, and oversight could not substitute for special education instruction to the child. In fact, there was no showing of academic instruction given I note that when asked about her progress, Mr. basically said she was happy at the school, and cited social benefits.

My decision under prong two, above, that was not appropriate placement makes a ruling on the final prong of a Burlington analysis moot. I will however note for purposes of possible appeal several problems that occurred during the conduct of this hearing. Despite repeated claims of retaining representation, Mr. was not represented by a lawyer or advocate, and the promised witness from the private school failed to appear despite rescheduling hearing dates and times. In addition, the due process complaint notice expressly requested reimbursement for tuition costs, although it came out during Mr. ’s testimony that he had paid no money and was in fact requesting direct payment to the school. The school contract was undated. Ex. A. Mr. who kept promising further documentation, failed to provide it.

Mr. was demonstrably uncooperative during the hearing, delaying the hearing for lawyers and an advocate who never appeared, professing ignorance of the process along the way despite previous hearings he had attended and continued explanation from the hearing officer, and ignoring decorum and interrupting throughout the testimony of the district witness. See generally, transcript from 61-118, 161-168. Under the circumstances, denial of an award for tuition would be justified.^[2]

ORDER

1. The parent request for reimbursement for tuition for during the 2011-2012 school year is denied. IT IS SO ORDERED. Dated: May 19, 2014

Nancy Lederman mv

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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.

If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be Prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.

If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

The petition for review shall be 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 State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 6/3/11, 21 pages

2 Final Notice of Recommendation, 7/12/11, 1 page

3 CSE Minutes, 6/3/11, 3 pages

4 Classroom Observation, 5/19/11, 1 page

5 Social History Update, 1/28/10, 1 page

6 Psycho-Educational Report, 12/23/09, 5 pages

PARENT EXHIBITS

A Registration Contract, , 2011/2012 school year, undated, 1 page

B Affidavit, , 8/12/12, 1 page

C Class Schedule, 2011/2012, 1 page

D Letter, , with attachment, 2 pages

E Teacher Progress Report, , undated, 2 pages

IHO EXHIBITS AND DOCUMENTS IN THE RECORD

I Impartial Hearing Request, 7/10/13, 2 pages

II Prehearing Conference Summary, 8/22/13, 1 page

III Extension decisions, 9/19/11-4/22/14, 7 pages

Footnotes

[1] There was no transcript record of the February 10, 2014 meeting, as there were no available rooms at the DOE for hearing. The parent’s request for adjournment was granted, and further hearing dates were scheduled at the time with his selected advocate.

[2] Had an award been justified, it would have been reduced by approximately 50 percent due to the religious nature of instruction as shown in the class schedule. Ex. C.