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: September 24, 2013

November 27, 2013

January 28, 2014

April 10, 2014

Actual Record Closed Date: April 25, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24, 2013

Esq. Attorney — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 27, 2013

Esq. Attorney — Parents

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

Esq. Attorney — Parents

Father — Parents

Dr, CSE Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2014

Esq. Attorney — Parents

Father — Parents

Dr, CSE Chairperson Designee — DOE

On September 24, 2013, November 27, 2013, January 28, 2014, and April 10,

2014, I conducted an Impartial Hearing at the New York City — DOE

(“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”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated September 9, 2013. (Ex. A) I was appointed Impartial Hearing Officer on September 10, 2013. I was available to conduct a hearing within 14 days of appointment. At a scheduled telephone conference conducted on October 16, 2013, the initial hearing was scheduled for November 27, 2013, the first mutually available date for the parents, their witnesses and the hearing officer. The DOE was notified of the conference but did not appear. The DOE was thereafter notified of the scheduled hearing date and given an opportunity to object and no objection was received. (T. 11-12, Ex. I) The November 27, 2013 hearing date was not timely entered in the calendar by the Impartial Hearing Office and the DOE did not appear on that hearing. The matter was adjourned and thereafter scheduled for January 28, 2014, the first mutually available date. (T. 12-15) At that hearing, as discussed below, the DOE informed the parents that it conceded that it failed to provide a FAPE for the 2013-2014 school year. (T. 29) The hearing date of April 10, 2014, the first mutually available date, was scheduled to enable the parents to present their witnesses. (T. 32-33)

In their impartial hearing request, the parents sought an order concerning the student’s pendency entitlements. (Ex. A) A hearing concerning that was held on September 24, 2013. Thereafter, by Order dated September 30, 2014, the DOE was ordered to pay for tuition at a rate not to exceed $35,625 per school year (10 month program) during the pendency of this proceeding. (Ex. III)

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 and for receipt of the transcript and consideration of the record by me. 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 the parties were provided with my written decisions concerning that. (T. 15, 21, 32-33, 38-39, 155, Ex. II)

The current compliance date is May 21, 2014. The record closed on April 24, 2014, upon my receipt of the final transcript.

Positions of the Parties

The parents allege that the CSE convened on February 1, 2013, to develop a program recommendation for the 2013-2014 school year and that the IEP that resulted was procedurally and substantively defective. Accordingly, the parent claim that the DOE failed to offer a FAPE. The parents unilaterally enrolled the student at (“ or “the school”) which they claim provided a program appropriate for this student and for which they seek tuition reimbursement of $37,713 from the DOE. They claim that consideration of the equities supports their claim and provides no basis for a denial or limitation of reimbursement. (T. 129, Exs. A, D)

The DOE conceded that it failed to provide a FAPE for the 2013-2014 school year. However, it asserts that the parents have failed to establish was appropriate, claiming that not all staff is licensed/certified, that the staffing ratio is overly restrictive and hinders socialization and that assessments are not properly conducted. Further, the DOE asserts that the parents had predetermined that a public school was unacceptable and that therefore any reimbursement should be denied based upon consideration of the equities. (T. 24-25, 151-155) Cases Presented

Lists of documents submitted and persons who appeared are appended.

The DOE presented no witnesses.

The parents presented the testimony of: Dr. School Director (‘the director”), licensed psychologist and certified special educator (T. 45); the student’s father (“the parent”)

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 the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

In the instant matter the DOE has conceded that it did not provide a FAPE for the 2013-2014 school year.

Prong 2

When a public school system has failed to provide 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. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they 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 in 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).

The sole witnesses in this matter testified on behalf of the parents. I find their testimony credible.

The student was almost in September 2013. (T. 56, Ex. 1) She attended DOE public schools through the which she repeated. (T. 122) She has attended from the and in the was receiving ancillary services. (T. 104-105, 122, Ex. 3) Her classification is and that classification is not in dispute.

The student has a diagnosis (Ex. 1) Her , tested in 2010, was within the borderline range with overall IQ scores reduced by the impact of specific deficits in . (Exs. 1, 3)

In February 2013, when the student was in , the CSE reported that the student was functioning at and mid Her math levels were at help for calculation and at beginning to mid in applied problems. (Ex. 1)

The CSE noted that the student required a lot of modeling, constant review of story read and visual aids, struggled with which and had information conceptually, with and with sequencing, auditory memory and categorization. (Ex. 1) Her processing slowness resulted in taking a long time to respond to peers and missing pieces of information which affected her interaction with her peers but she was reported to be friendly. (Ex. 1)

The CSE stated that the student would lengthy assignments, refocusing and restructuring; frequent repetition and review of approach. It recommended a full day self-contained special education class for 7 periods a day

The testimony of the witnesses in this proceeding is substantially consistent with the CSE’s description of the student. (T. 57-58, 119-120, 124, 127) It was also noted that she is hardworking and cooperative. (T. 57)

The persuasive evidence shows the following with regard to the program provided by the parents:

Bay Ridge is a K-12 independent, nonsectarian school with about 420 students. The K-8 component is in a separate building and has some 200 students. (T. 48) The Middle School has two programs in addition to a mainstream program: the Achieve Program for students who have vestiges and have a layer of support within the school day; the Bridge Program for students who need a higher level of support and receive small class size and more remedial work in certain core academic subjects and mainstreaming opportunities in appropriate size groupings with support in other subjects.

(T. 49, 105) At the school has 98 students, some 28 in the Bridge Program. (T. 51)

Determination as to classes is based on functional levels and specific needs to enable targeted intervention as determined by teacher assessment and observation, curriculum based measures and benchmark testing utilizing standardized measures. (T. 53, 98) The students are assessed in September, January/February and late April/May to determine to what extent if any ground is lost over the summer, to determination whether the targeted interventions are working and tweak if necessary, to evaluate progress and determine groupings for the following year. (T. 53-54, 94) Standardized measures used by the school to determine benchmarks are the Woodcock-Johnson Test of Achievement, Gray Silent Reading Test and Key Math as well as the Iowa Test of Basic Skills which provide a level of objective ratings which supplement the teacher observations and curriculum based assessments. (T.55-56, 93-103)

Staff communicate directly daily, there are subject area departmental meetings once a week and there is a middle school faculty meeting weekly. (T. 57) The Common Core curriculum has been reviewed and the school is following those parts if believes are appropriate including text evidence and a focus on critical reasoning. (T. 106) There are frequent communications between the school and the parents concerning homework and how they can help. (T. 124, 126)

Language Arts is provided in three modules - reading comprehension, oral presentation and writing – to make groupings specific and to ensure each area is worked on every day. (T. 69-70) The student’s Language Arts reading comprehension class has 8 students and 2 teachers - one a literacy specialist who works on curriculum to meet the student’s need and the other a speech pathologist who is also certified as a special educator- who teach active reading strategies and make sure the curriculum fits the student and enables growth. All the students have relatively good decoding skills but underlying reading comprehension issues. (T. 60-61, 71, 113, 123) In this class the student is provided with individualized instruction when necessary in a group with similar students which enable participation in a group process. (T. 63-64) She is provided with a high and modeling, and the class operates at a slower pace, all of which is beneficial for this student. (T. 65-66) The student’s reading comprehension level in and by March she was , demonstrating progress. (T. 66-67, 124-125)

The Oral Presentation module teaches the organization and delivery of oral presentations to peers, which is also a life skill. (T. 69-70) There are 8 students at similar levels with regard to speech needs and 2 teachers, one the speech pathologist/special educator who also teaches her reading comprehension class. (T. 71) The student is able to develop a necessary skill in a familiar and comfortable environment. (T. 73)

The Writing module uses the reading the student is doing as a model for her own.

(T. 69) The student is grouped based on writing samples and areas of weakness and this student’s group have good mechanics but their writing is too simple and a focus is on developing greater sophistication with words and ideas. The class also share attentional difficulties and writing organization is also a focus. (T. 74) Scaffolding and organizational support is provided to the student. (T. 75-76) The student has progressed since September 2013 and can now develop a paragraph if provided with some details.

(T. 75)

The student’s math class has 1 teacher, who is certified as a general education teacher, and 2 students with the other student having similar math difficulties as well as receptive and expressive language difficulties impacting learning. (T. 76. 113-114) Although this student’s computational skills in September 2013 were at about a 5th grade level, her applied problem skills were about mid-second grade. (T. 76) The small group allows a high level of individualized instruction with social interaction, the math program utilized -TransMath curriculum from Sopris West - is research based and developed for students with learning needs and the school has built in a life skills component. (T. 77-

79) Scaffolding, multisensory instruction and manipulatives are utilized. (T. 79) The student has progressed since September as demonstrated by her ability to check her own work, increased confidence and academic growth in calculation to the 6th –mid 6th grade and in applied problems of about a year. (T. 80, 122-123)

The student receives science and social studies instruction in inclusion classes with 17 students (about a quarter to a half in the Bridge program) and 2 teachers, one a science teacher and the other student teaching. (T. 80-82) The classes may be grouped for instruction and an additional enrichment class of 8- most with language based issues- is provided for this student which enables a higher level of repetition and support for writing visual organizers and appropriate peers (T. 82-85) Graphic organizers, differential readings, supportive materials and repetition and additional support from the 2nd teacher are provided. (T. 83) The student benefits socially and in self-esteem. (T. 83)

Advisory group sessions twice a day for 15 minutes are also scheduled to help the student organize and build social skills, provide another teacher to connect with and to provide an opportunity for check-ins with regard to feelings and problems and the development of strategies. (T. 86-87)

The student also participates in an enrichment class with one other student and one teacher which focuses on various subjects in which the student may have needs and was provided in view her high level of need for individualization. (T. 116, 117)

Speech services are embedded in the Language Arts program in a push-in model in the reading comprehension and oral presentation language arts modules, both taught by a licensed speech pathologist who is also certified as a special educator, and the student has progressed in that her confidence has improved and she is initiating conversations more with this model. (T. 87-88, 107, 109-110, 112, 125-126) That speech language pathologist had provided individual speech services in a pull-out model in prior years. (T. 138-139A weekly counseling session is provided focused on building social skills and self-esteem. (T. 87, 89) The student has progressed in problem solving independently and in more frequent social interaction. (T. 90, 123-124) There is no indication of certifications or licensure in this field by the counselor who is a counseling intern at the school and receives weekly supervision from the director, a licensed psychologist. (T. 110-111, 116-117)

The DOE disputes the appropriateness of the program provided and makes various claims in asserting that the parents have not met their burden. The DOE asserts that the related services are not appropriately provided and that not all providers are appropriately licensed/certified. (T. 108, 152) However, it is well established that related services need not be provided exactly as recommended by the CSE. Further, the director testified as to the ongoing reviews she conducted with the student’s progress and that that appropriately licensed individual, who I note was continually present in two daily classes taken by the student, was satisfied with the progress. Further, the DOE also notes that the results of the standardized tests asserted to have been used to evaluate progress have not been proffered in written form. (T. 153) However, I find that the detailed testimony of the director that standardized tests are utilized in addition to other assessment measures was credible. With regard to the DOE’s claims based upon the credentials of certain teachers. I note that special education teachers are not requirement for a parent’s unilateral placement. (T. 154) Finally, the DOE’s claim based upon the 2:1 ratio in the math class, I give no weight here where the bulk of the student’s program is provided with more students and the math class ratio is based upon an effort to provide needed individualization and support. (T. 154)

Accordingly, I find, based upon the foregoing, that the parents have met their burden to establish that the was designed to support her individual needs and is reasonably calculated to confer meaningful educational benefits.

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 DOE has the burden with regard to this issue.

In the instant matter, the DOE has not claimed, and the evidence does not support that claim, that the parent failed to cooperate in the development of the IEP or in the designation of an appropriate placement. I give no weight in the circumstances here to the execution of the contract on April 29, 203. (Ex. D) The parent credibly testified that it was necessary in order to hold a seat. (T. 131, 142-143) Further, the enrollment contract provided that if the parents accepted a DOE placement all tuition payments but for the $5000 registration fee would be refunded and the parents would have no further obligation. (T. T. 132, Ex. D) The parent’s testimony that had the DOE provided an appropriate placement he would have given up the $5000 was credible. (T. 132, 143) I also note with regard to equitable considerations that the parent wrote to the CSE on or about June 21, 2013 informing it of concerns about the IEP raised by staff at the recommended school and requesting a discussion concerning revision and received no response. (T. 133-137, Ex. K)

Moreover, I note that a parent’s preference for a private school, even if established, and even the signing of a contract prior to an IEP review, is not dispositive of a claim for DOE payment. Appeal No. 05-087. I find no basis in equity for denial or limitation of the tuition reimbursement sought.

Order

The parents are entitled to DOE payment of full tuition for the Bay Ridge Bridge Program for the 2013-2014 school year which totals $37,713 and the DOE shall immediately pay the parents therefore. However, the amount paid to the parents pursuant to the Interim Order on Pendency in this matter shall be deducted.

Dated: April 28, 2014

Judith Schneider mv

JUDITH SCHNEIDER, 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

C. Day Notice of Placement, 8/23/13, 4 pgs. D. Enroll. Contract, 4/29/13, 2 pgs. Parents E FACTS Mgmt Co Agreement, 7/3/13, 1 pg. Parents F Proof of Payment, 4/29/13, 1 pg. Parents G Proof of Payment, 8/7/13, 1 pg. Parents H. Descrip.-, 2013-14, 5 pgs. Parents I Student Schedule- Quarter 1, 1 pg. Parents J Third Quarter Rpt. Card, 2013-2014, 7 pgs. Parents K Parent Resp. to FNR & proof of deliv. 6/18/13, 2 pgs. Parents I Prehearing Conference Memo Impartial Hearing Officer II Compliance Date Extension Decisions Impartial Hearing Officer III Pendency Order, 9/30/13 Impartial Hearing Officer (10 pages; Parents)