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

Dates of Hearing: February 4, 2014

May 2, 2014

May 5, 2014

Actual Record Closed Date: May 21, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2014

Esq. Attorney — Parents

Dr. CSE Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2014

Esq. Attorney — Parents

Dr. Father — Parents

Dr. CSE Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OHN MAY 5, 2014

Esq. Attorney — Parents

Dr. Father — Parents

Headmaster, — Parents

Teacher, — Parents

Dr. CSE Chairperson’s Designee — DOE

On February 4, 2014, May 2, 2014 and May 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”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated September 10, 2013. (Ex. B) I was appointed Impartial Hearing Officer on January 30, 2014, after the recusal/s of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on January 31, 2014, the hearing was scheduled for February 4, 2014, May 2, 2014 and May 5, 2014, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 14-15, Ex. I)

The parent requested issuance of an order concerning the student’s pendency entitlements. (Ex. B) On February 10, 2014, an order was issued which provided reimbursement for the pendency of this proceeding.

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. 15-16, Ex. II)

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

Background and Positions of the Parties

The student entering at the commencement of the 2013-3014 school year. The student had previously attended ”) and he was reenrolled grade. (Ex. B) York is a private school which not approved by the New York State Education Department as a school with which the DOE may contract for the delivery of special education services,

The parent asserts that the CSE did not convene to develop an IEP for the 20132014 school year, that it did not recommend any placement and that, therefore, it failed to provide a FAPE for that school year. The parent is appropriate for this student and that equitable considerations favor the parent and do not provide a basis for denial or limitation of reimbursement in the amount of $41,200 for the student’s program there.

The DOE concedes that it failed to provide a FAPE. It did not assert opposition with regard to the student’s placement or the equities in this matter as they relate to reimbursement. (T. 17)

Cases Presented

The DOE presented no witnesses and submitted no documents.

A list of the documents submitted by the parent is appended. The parents presented the testimony of four witnesses:

”)

was the student’s English teacher in the first semester of the 2013-2014 school year (T. 21, 23) The class, with 12 students grouped to attain personality mix and skill levels and with 10-12 with learning disabilities, was designed as a writing class to prepare students, consisted of 40 % writing activities, for college level writing and included a writing lab once a week in addition to five classes. (T. 22, 27-28, 38) described the student as having language-based deficits and struggling with reading comprehension and written comprehension including in the organizing and developing of his thoughts based upon his own observation and information provided to him by the Director program

(“JS”). (T. 24-25)

Strategies utilized included efforts to turn the student into an independent writer by giving him prewriting strategies and techniques to help him begin and teaching him to creating charts to help organize his thoughts, the use of a SMART Board in the room for guidance and modeling, graphic organizers, peer editing and rubrics. (T. 25-27, 29-31) One to one assistance was provided. (T. 28-29) The text utilized breaks down the writing process and streamline many different writing techniques. (T. 29) To address the student’s reading comprehension difficulties, Serri provides active reading tips including annotating and utilizes the SMART Board, reading aloud to clarify and help him perceive and coordinating fildm with text. (T. 30-33) He is also available for student meetings during the school day and after school. (T. 33-34)

With regard to progress, detailed definite improvement in writing and grades, increased confidence and willingness leading to increased independence. (T. 34-35) He stated that the student had utilized strategies learned in prior years and that the support system in place still in place pursuant to that program benefited him. (T. 36) He estimated that the student’s reading level was at grade and that his writing level was about . (T. 36)

Father (or “the parent”)

Father testified that learning problems were observed at about particularly around reading. (T. 41) At around the grade the student was tested and difficulties with learning processing were reported. (T. 42) In 2012, the student was tested again and the same results were reported. (T. 43, Ex. C) The student was in public school from kindergarten -8th grade, in a school for gifted and talented children reading and writing.

(T. 43-44) Various testing accommodations were provided and various supports were given including SETSS after an IEP was developed. (T. 45, 55) That school ended with the 8th grade and the student was because, as a consequence of the student’s strengths in other areas, he required an appropriate inclusion program which could develop his very substantial math and science strengths. (T. 45-46, 52-54)

The parent is apprised about the student’s York program, assignments and progress through an online system (“Edline”) which also enables the student to help organize. (T. 46-47) There is ongoing email communication between students and parents and the school staff and parent meetings. (T. 47-48)

In June 2013, the parent wrote the CSE requesting that a CSE review be scheduled for the 2013-2014 school year because of the parents had needed to sign a contract to hold a place but did not receive a response. (T.48-49, Ex. E) The parents had purchased tuition refund insurance when contract in May 2013. (T. 54, Ex. D) The parent wrote again on August 15, 2012, stating that he had had no response to his earlier request and was sending the and would seek DOE reimbursement. (T. 49-50, Ex. F) He received no response and never received a placement from the DOE for the 2013-2014 school year. (T. 50)

Father stated that the student had made tremendous writing progress this year and described the student, based upon his experience as a college instructor, as about midlevel CUNY freshman with increased independence and ability to handle texts. (T. 50-51) The student’s strength is in math and science and has been accepted in an engineering programs at an out-of state university with a merit-based scholarship. (T. 52)

(“the headmaster”)

The headmaster testified that he has held the position for some 45 years and founded the school. (T. 62) The school utilizes a tracking system to enable appropriate grouping and student movement during the school year to reflect current levels. (T. 62-

63) It is a college prep school. (T. 63) was developed particularly to address the needs of students with learning disabilities and all teachers teachers teach regular classes including one of this student’s current year classes. (T. 68) In 12th grade, because there are numerous elective classes, class size ranges from about 9-18 and all utilize Edline which helps all students, whether or not currently enrolled in the , organize themselves and informs and involves parents. (T. 68-71) Even when no longer students who participated in that demonstrate increased organization and independence. (T. 71-72)

(“ ”)

is the student’s grade English teacher and holds a North Carolina certification as a secondary school English teacher. (T. 76) The class is a literature elective with 14 students. (T. 77) Pennington also taught the student in grade English class. (T. 77) He described the student as clearly having language-based learning disabilities primarily impacting reading comprehension and writing. (T. 78) Information concerning the was also provided by the school psychologist and from other teachers via Edline and team meetings. (T. 78)

With regard to written work, the student benefits from and receives modeling, the use of graphic organizers and writing conferences and writing labs enabling one to one communication and evaluation. (T. 79-87) With regard to reading comprehension and to address the student’s difficulties in retrieving specifics from utilizes the assignment of reading objectives, annotating and note taking from literature texts and breaking down reading assignments. (T. 87-89 is available afterschool for conferences. (T. 89) The student receives extended time and uses a laptop in ’s class. (T. 90)

Progress has been demonstrated this year and includes more organized writing, reading with greater purpose and with greater understanding, much greater timeliness in turning in assignments demonstrating that he has developed appropriate strategies, less anxiety and greater ability and willingness to self-advocate. (T. 90-91)

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

The DOE has conceded that it failed to provide an appropriate program/placement. (T. 17)

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 conclude that the parent has met his burden in the instant matter.

I find each of the parent’s witnesses credible and their testimony, set forth above, reliable. With regard to the , I note that the 2012 evaluation has not been challenged by testimonial or documentary evidence in this proceeding and find that the reliability of its contents has not been rebutted by the DOE. Further, the testimony of the student’s teachers and the parent, set forth above, is consistent with that. The evidence shows that the student has been diagnosed with a , novel stimuli in a timed manner. He has but relative skills suggesting that he has a related to reading and writing and that his program . (Ex. E)

The the student receives focuses on those deficits in a program which is particularly designed to address them and take into account this student’s unique needs and substantial strengths. Appropriate strategies are utilized and appropriate accommodations are provided. (Ex. E) The staff is sufficiently qualified with regard to this student’s needs. There is ongoing communication between parents, students and school and the student’s progress is appropriately assessed and has been demonstrated. (Exs. G, I) Further I note that the DOE has made no claim that the program he receives is not appropriate.

I conclude that the parent has met his burden to demonstrate that the program unilaterally provided was reasonably calculated to enable this student to make meaningful educational gains.

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 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, the undisputed evidence shows that the parent timely informed the CSE with regard to need for a CSE review and placement placement they had secured. (Exs. E, F) Further, the parents obtained tuition insurance when contract was executed in the event that an appropriate program was offered by the CSE. (Ex. D) No claim of lack of cooperation has been made by the DOE. In contrast, the DOE has conceded that it failed to provide a FAPE and has asserted no basis in equity for the denial of full reimbursement.

Based upon the foregoing, I conclude that a weighing of the equities supports full tuition reimbursement for the York program the student received.

Order

The DOE shall promptly reimburse the parent $41,200 for for the 2013-2014 school year upon receipt by the DOE of satisfactory proof of payment and attendance. Payments made pursuant to the interim order regarding pendency in this matter shall be deducted.

Dated: May 27, 2014

Judith Schneider, Esq. gc

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

JS:gc

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

A 2012-2013 Decision of IHO, 4/24/13, 26 pgs. Parent

B Impartial Hearing Request, 9/5/13, 6 pgs. Parent

C Report, 1/7/12, 8 pgs. Parent

D Contract, 5/10/13, 3 pgs. Parent

E Parent Letter to CSE, 6/24/13, 3 pgs. Parent

F Parent Letter to CSE, 8/15/13, 3 pgs. Parent

G First Semester Report, 1/6/14, 1 pg. Parent

H Proof of Payment, Various dates, 3 pgs. Parent

I Third Quarter Academic Report, 3/7/14, 1 pg. Parent

I Prehearing Conference Memorandum Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer

III Interim Order on Pendency Impartial Hearing Officer