New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

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

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 1-17-14

2-25-14 Record Close: 3-31-14 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 17, 2014

Advocate — Student

Parents

Parents

MR., Interpreter — Student

District Representative — DOE

Coordinator (Via Telephone) — DOE

Teacher Assigned, CSE (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 25, 2014

Advocate, (Via Telephone) — Student

Advocate, — Student

Arabic Translator/Interpreter — Student

Parent/Mother — Student

Parent/Father — Student

Director,, (Via Telephone) — Student

District Representative — DOE

— 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).

( -old student who is classified as recommended for a class with therapy and counseling services. The parents, (Mr. , Mrs. , parents or parent), alleged that the district failed to provide him with a free appropriate public education (FAPE) for the 2012-2013 school year. The instant hearing was brought seeking reimbursement and/or direct payment for his tuition at ) in the 2012-2013 school year.

A prehearing conference was held on September 12, 2013. The hearing was held on January 17, 2014 and February 25, 2014. Extensions of the deadline for decision were requested and entered in the record as IHO Exhibit II.

DISTRICT CASE

testified that she is a special education teacher, with a Master’s degree in learning disabilities, and certification in special education and general education, kindergarten to grade 6. She stated that she is the IEP teacher at the school, overseeing all IEP’s. The school has special education programs that include 12:1 programs, integrated co-teaching (ICT), and special education teacher support services (SETSS). In the 2012-2013 school year, the teachers in the classes were licensed and certified. In addition, the school had related service providers available for speech and language and counseling.

Ms. stated that in the 2012-2013 school year, there were , and as was in the fourth grade, he would have been placed in the “234” class. Asked to confirm her statement that a class would have been available for level, she clarified her testimony, stating that she could not answer with a yes or no, as it would depend on when the parent came to visit the school. She explained that there was class that was changed to a class, so it was possible that with the parent came, she was told that it wasn’t available. Ms stated that she did not remember the month that the school opened a class. She explained that if a child entered with the recommendation school staff would have decided if they had to open the class or do what was needed to best serve the child. She testified that in September 2012, there was not a class for an incoming fourth grade student, and that information would have been provided to the parent. She agreed that the school was required to address a recommendation on the IEP, but testified that it was a team decision as to whether that would be changing the IEP or addressing developing the class. Tr. 22-39.

testified that he is a special education teacher, with a Master’s degree in special education and social studies, and works as a teacher assigned to the CSE. He testified about an IEP meeting on May 30th 2012, and stated that it was a complicated case, because Jack was demonstrating that he was almost average on standardized tests, and teachers were saying in a progress report that he was almost average in reading and math, but he wasn’t performing well in the classroom for some reason. Teachers reported that there was a lack of focus, he was having problems retaining information, and had a lot of problems using language. Mr. discussed the goals on the IEP, noting goals to address his impulsive behavior and stay more focused in the classroom, speech and language goal to address expressive language receptive language skills. He stated that the CSE reviewed report and the teacher progress report; he did not specifically recall other documents. Asked about the program recommendation, he explained that the CSE believed could be handled in a classroom setting by a teacher who understood the problems of children with disabilities. He did not know what support was being provided for behavioral issues at the private was attending. He did not recall if he was making progress or if there was a medical diagnosis. He explained that was recommended because of behaviors, that he needed a lot of monitoring and needed to be focused, which required a small class to remedy his delays. The committee also considered a special class a community school, but thought that it would be to educationally restrictive. Asked about the related service goals, he stated that they probably were committed to paper after the conference, stating that at the meeting the DOE tells the parent that they will generate an updated IEP based on the information. He did not know if any of the goals were carried over from the previous IEP. Asked whether the goals that were written in the IEP were discussed at the meeting, he explained “not word for word, but we would say were going to generate goals to deal with or with his weak reading comprehension.” Asked for an example and whether anything else from the goal would be discussed at the meeting, he said no. Tr. 44-79.

PARENT CASE

testified that she has a Master’s degree in reading and another in school building leadership, and is certified in early childhood or common branch, special education, reading, and school building leadership. She currently serves as the Director of . She testified that for the 2012-2013 school year, teachers were licensed and certified in special education. Assistant or associate teachers were working towards a degree, either a bachelor’s or a Masters in special education or speech-related education. Also on staff were an occupational therapist, a speech and language therapist, a speech and language consultant, a social worker, and a psychologist. A literacy consultant was also employed in 2012-2013. Ms. explained that the Academy classes are located throughout the building, parallel or next to their grade-appropriate other classes at There were eight classes in the 2012-2013 school year, one on each grade level from first through eighth grade. The average class size was 10 students, with a teacher and an assistant or associate teacher.

Ms stated was a student in the fourth class in the 2012-2013 school year. His teacher was ), who has a Master’s degree and is certified and licensed in special education. She did not recall who the assistant teacher was, but stated that she thought the assistant teacher was working towards a B.A. in special education. She stated that at the beginning of the year was performing somewhere at the end of second in math, able to do basic calculations but having more problems with word problems or multistep equations. His level somewhere also at the , although his independent early . He had , and with . He is also , which “we think sometimes maybe hinders his progress.”

Ms that the school followed the common core curriculum, the mainstream curriculum with modifications as the student or the class needed. She described some of the books used in classes, and also noted additional learning aids used such as manipulatives, smart board, computers, and movement wherever possible. She testified that math was introduced where appropriate as a whole group, after which students break up into groups and work with manipulatives or some might be at a computer. She discussed the schedule at great length, addressing the question of whether there was religious content in classes such as Hebrew language and Hebrew reading; she testified that those were not religious subjects. She gave as an estimates two hours a day of religious instruction, which she stated was about 1/6 or 1/7 of a seven-hour day from 8:15 in the morning until 4:15 in the afternoon. Asked about textbooks in the various classes, she acknowledged that the reading class did do reading from the prayer book, but stated that it was just a fraction of what was done in the class.

She noted when he has to be . He needs the reassurance of and needs things rephrased and repeated until he understands it. He also , both verbally and written expression. Ms stated that she didn’t think he would be able to function in a classroom with a teacher and no other adult. She stated that she didn’t believe he would be able to thrive that way, as he needed someone to help him and guide him to get him started and keep going, and provide reassurance. She noted that a social worker who worked with him during the year, using coping and calming devices, and he was able as the year went on to be a little more independent and more comfortable about doing work. He was able to increase some of his writing skills and some of his expressive language. She stated that the school followed his IEP mandates for related services. The teachers also work off IEPs to make internal goals as well. Tr. 92-128.

Mrs. testified went to when he old. She then clarified that he began to attend the grade. She stated that she went to all the IEP meetings, including the IEP meeting for the 20122013 school year. She stated that at the meeting, goals were discussed and she was told the DOE was recommending to be in a class. She stated that she agreed, because she knows “ that he needs like he needs small group.” She agreed again that the was good for him. She stated that at , there were eight children and three adults in the class, which she said was good for him. She then stated that he needs “like one in one,” more than one teacher in the class, which she said she told the IEP team during the meeting.

She received a final notice of recommendation, and went to visit the school . She was told that the school did not have a class available at the time . He went to the which she said was a good school , with children like him at the same level, and more help one to one. She stated that he did progress during the 2012-2013 school year, especially in reading, and she said he was doing much better in the math.

Mrs. stated that she paid $8500 to the school, but still owed money. She explained that school tuition is $24,000, and stated that she cannot afford to pay the rest of the tuition as she has “another kid also in the school.” She explained that her other child was in the high school. She acknowledged never attended public school. Asked about the contract with the school, Mrs. stated that the date on the contract was the date of the application. She said that her first payment was made after she visited the public school; she was told by they would refund the money if the public school. She said that the affidavit which showed a first payment on June 12, 2012 for $500 reflected payment for an application, that it was not tuition but an application fee. Tr. 135154.

FINDINGS

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).

ISSUE 1 - Appropriateness of School District Program 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 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 program begins with an IEP that accurately reflects the results of evaluations to identify the child’s needs, provides for the use of appropriate special education services to address those needs, and establishes annual goals and short term instructional objectives related to the child’s educational deficits. Application of a Child with a Disability, Appeal No. 98-71; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

In this case, it was clear that the district failed to provide the student with a FAPE. Mr. s description of how goals were developed for the child’s IEP’s failed utterly to comply with regulations concerning parent participation in development of goals. There was not even an attempt to read draft goals to the parent or other participants at the meeting. The resulting goals were vague and not expressly targeted to the student. I note that Mrs. ’s testimony concerning her opinion of a 12:1 class and what was said at the IEP meeting was confused and conflicting, but the DOE failed to clarify what it was recommending.

Even more troubling, the school to which the child was assigned did not have a class. Ms. s testimony concerning the unavailability of a class was clear. I note also that the possibility would have been placed in a class to cure the defect would have placed him in a class that the CSE had found to be too restrictive.

For the foregoing reasons, I find the DOE failed to provide a FAPE

ISSUE 2 - Appropriateness of Parent Placement

Consideration next turns to the appropriateness of the parental placement. The parent bears the burden of proving the appropriateness of the services obtained 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 offered an educational program designed to 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).

In this case, the parent has failed to sustain the burden. Ms. , who was the only educator called by the parent as a witness, had little other than generalities to say , and did not offer any specific example of instruction given to address his special education needs. Other than class size, there was no information specific to program or needs. I note also that despite the parent arguments that another adult was needed in the classroom, the assistant teacher in that particular classroom was only a high school graduate. There was also no specific information about the related services provided, other than Ms. ’s statement that IEP mandates were followed. Although Ms. acknowledged the , she gave no information on how that was treated other than to say that a teacher would have to sit with him and calm him down. According to her, a social worker also worked with him, but there was no information about what the duration or nature of those services. Mrs. ’s opinion that he had more help on an individual basis had no confirmation in Ms. ’s testimony.

Under the circumstances, I find that the parent has failed to show that the school program was designed to meet the child’s special education needs. I find the parents have failed to sustain their burden in regard to

ISSUE 3 - Equitable Considerations

Finally, analysis turns to the third prong of the Burlington decision, which requires a balancing of the equities in determining whether reimbursement should be awarded. Although my ruling as to the appropriateness of the parent placement, above, makes a decision moot, I will make a finding for use in any possible appeal.

There were several problems apparent with the parent’s case in regard to equities. It was undisputed had never attended a public school, and Mrs ’s statement that she couldn’t afford the tuition was based on the fact that she had another child going to the same school. The circumstances of the signing of the contract also raised questions about its legitimacy. The contract was undated, and Mrs. gave conflicting answers to when she signed the contract and when an initial amount was paid.

For the record, had there been a ruling in the parents’ favor, it would have been limited by the portion of the day dedicated to religious instruction. Accepting Ms. ’s total of two hours of the day, a day which was eight hours and not the seven she stated, was still not the 1/6 or 1/7 she offered, but 25 percent of the daily schedule. Had an award an award been made, it would have been reduced by that amount.

Under the circumstances, equities favor a ruling against any payment of tuition in the private school by the DOE.

ORDER

1. The parent’s request for reimbursement for ’s tuition at for the 2012-2013 school year is denied.

IT IS SO ORDERED

Dated: April 11, 2014

_____________________________

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

DOE Exhibits

1 IEP, 5/30/12, 12 pages

2 Final notice of recommendation, 6/12/12, 1 page

3 School progress report, 5/30/12, 1 page

4 Social history update, 8/2/11, 1 page

5 evaluation report, 8/2/11, 4 pages

6 CSE minutes, 5/30/12, 1 page

Parent Exhibits

A Impartial Hearing Request, 8/15/13, 4 pages

B Program Description, , undated, 2 pages

C IEP, 5/29/12, 12 pages

D Final Notice of Recommendation, with handwritten notations, 6/12/12. 1 page

E Letter, Ten Day Notice, , 8/15/12, 2 pages

F Class Schedule Grade Four, 2012-2013, 1 page

G Enrollment Contract, 2012-2013, undated, 1 page

H Affidavit, , 10/15/13, 1 page

I Cancelled checks, various dates, 9 pages

J 1040 Income Tax Return 2012, 10/14/13, 2 pages

K Letter, , 5/30/13, 1 page

L Class Profile Grade Four, 2012-2013, 1 page

M School Progress Report, Grade Four, Ms. undated, 1 page

IHO Exhibits and Documents Entered in the Record

I Prehearing conference summary, 9/12/13, 1 page

II IHO Decisions on Extension Requests, 10/19/13 – 3/20/14, 6 pages