New York City Department of Education, Impartial Hearing Decision

FINDIS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Heari Requested By: Parent

Date of Heari: September 24, 2013

January 13, 2014

February 25, 2014

March 13, 2014

Actual Record Closed Date: June 5, 2014

Heari Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,

2013

Attorney District Representative Department of Education — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2014

Attorney — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,

2014

Attorney District Representative Department of Education Mother Teacher Assigned, Department of Education — Parents

Parents

(via telephone)

Parents

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2014

Attorney District Representative Department of Education Mother — Parents

INTRODUCTION

On September 24, 2013, February 25, 2014 and March 13, 2014 I held an impartial heari pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regardi the education program of a (“”). The heari commenced at 11:00 a.m. and 9:00 a.m., and 1:00 p.m., respectively, and was held at the Impartial Heari Office, 131 Liviston Street, Brooklyn, New York. A list of witnesses testifyi and documents received into evidence are attached to this Decision and Order.

BACKGROUND

and attends the (“”). In a letter dated September 9 2013, ’s parent, (“”), by her attorney, of the Law Offices of , filed a due process request for an impartial heari. In that request, the parent maintained that the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year in that the Individualized Education Program (“IEP”) dated February 14, 2013 was substantially and procedurally flawed and that the program and placement recommendations were not appropriate for . The parent alleged that is appropriate for and that the equities favor her. (Parents’ Ex. A). The Department of Education did not file a response.

I was appointed as the Impartial Heari Officer on September 11, 2013. The original compliance date was November 25, 2014. On October 15, 2013, at the request of both parties for the availability of witnesses the compliance date was extended to December 25, 2013 (subsequently adjusted to December 26, 2013), and a heari date was scheduled for December 9, 2013. On December 11, 2013 at the request of the parent for the availability of witnesses, the compliance date was extended to January 25, 2014 and heari date was scheduled for January 13, 2014. On January 13, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to February 24, 2014 and heari dates were scheduled for February 5, 2014 and February 25, 2014. On February 4, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to March 26, 2014. At the conclusion of the heari on February 25, 2014 another heari date was scheduled for March 13, 2014. At the conclusion of the heari on that date at the request of both parties for the receipt of the transcript and the submission of closi briefs, the compliance date was extended to April 25, 2014. The parties did not submit the briefs as scheduled and on April 29, 2014 at the request of both parties to more fully review the transcripts and submit briefs the compliance date was extended to May 25, 2014. The parent’s attorney submitted her Closi Brief on May 23, 2014. On May 27, 2014 the District Representative advised this heari officer that she would not be submitti a closi statement. Pursuant to a request by both parties on that date for this heari officer to issue a Decision and Order the compliance date was extended to June 26, 2014.

The extensions were granted after consideri the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelli reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attendi , the independent placement, and thus there was no negative impact on the child’s educational interest or well-bei as a result of the delay; (b) in accordance with due process the parties were entitled to the opportunity to secure witnesses to appear at the heari in support of their position and the parties were entitled to issue closi statements based on the transcript and have this heari officer review the transcript and consider the evidence and the closi briefs prior to the issuance of a Decision and Order; (c) although the child is receivi services pursuant to pendency the District joined in all but the second extension requests and did not object to that request by the parent, and thus there is no reason to conclude that there were any financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.

THE PARENTS’ POSITION

represented the parents at the impartial heari. Ms. alleged that the Department of Education did not provide with a FAPE for the 2013-2014 school year, that is appropriate for and that the equities support the parents (IHO Ex. II).

THE DEPARTMENT OF EDUCATION’S POSITION

represented the Department of Education. While Ms. did not issue a closi statement she argued in her Openi Statement that the Department of Education offered a FAPE for the 2013-2014 school year, that was not appropriate because, amo other this, it is a school for students with and did not have such and because it does not allow for any interaction with typically developi children. Ms. asserted that the equities favor the Department of Education (Heari: 16-18).

ISSUES TO BE RESOLVED

1) Whether the Management Needs on the IEP were sufficient; 2) Whether the ICT program recommendation by the Department of Education was appropriate to meet ’s unique special education needs and able to meet her IEP goals; 4) Whether the promotional criteria on the IEP was inappropriately modified; 5) Whether the placement recommendation by the Department of Education was appropriate to meet ’s unique special education needs; 5) Whether the parent was denied the opportunity for meaniful participation in the education planni for ; 6) Whether is appropriate to meet unique special education needs; 6) Whether the equities of the case favor the parent.

FINDIS OF FACT

The Department of Education’s Case

signed the enrollment contract on February 4, 2013. She was required to submit a deposit in order for the school to hold a place for . Nevertheless, stated that she was “open” to consideri a (: 124).

CONCLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providi personalized instruction with sufficient support services to permit to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parent, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parent were appropriate; and 3) equitable considerations support the Parents’ claim. School Committee of the Town of Burliton v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrati the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404(1)(c); Application of a Child with a , Appeal No. 11-053.

To begin, I credit the testimony of all of the witnesses who appeared at the heari. The Decision as stated below is based on the testimony and evidence presented at the heari, which is detailed above with appropriate citations to the record. An additional facts included below will be referenced to the record as well. I. The Department of Education failed to provide with a FAPE for the 2013-2014 School Year

To meet its burden, the Department of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188189; 34 CFR 300.550 (b); 8 NYCRR 200.6 (a)(1). An appropriate program begins with an IEP which accurately reflects the results of identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).

A. Management Needs

“Management Needs” refers to the “nature and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction.

The parent asserted in her Due Process Complaint that the “Management Needs” sections of the February 2013 and June 2013 IEPs were insufficient in that they did not include “small group work with the support of trained special education teachers.” Thus, the parent asserted, ’s teachers and related service providers would not be alerted to the need for appropriately modified instruction to meet ’s unique special education needs. The parent also alleges that due to the absence of this management need the placement office would not be provided with adequate guidance as to the appropriate program for (Parent’s Ex. A). See 8 N.Y.C.R.R. 200.6(h)(2).

The parent is correct in that the Management Needs sections of the IEPs in question do not make any reference to ’s need with the support of a special education teacher. A review of the IEPs shows that the only mention of the importance of small group instruction for is a reference to her teacher’s belief and ’s belief that has been successful (DOE Ex. 1 at 11).

For the reasons explained above I find that the Department of Education failed to meet its burden of demonstrati that it provided with a FAPE for the 2013-2014 school year. II.

Under the second criterion of the legal standard, ’s parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for for the current school year. N.Y. Educ. Law §4404(1)(c); M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a , Appeal No. 11-053. In order to meet that burden, the parents must show that the educational services were "proper under the act" (IDEA). Burliton, 471 U.S. at 370, i.e., that the educational program is one which met 's special education needs. To qualify for reimbursement under the IDEA, a parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. A parent cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as the developi IEPs or employi faculty members that are not state certified. Rather, the parent 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." Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459 F.3d at 364.

While a parent not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determini whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 96.

The testimony and the evidence showed that is an appropriate placement for for the current school year. As related in detail in the Findis of Fact above, the testimony by ’s teacher,

In sum, I find that the parent met her burden of demonstrati that r is “reasonably calculated to enable to receive an educational benefit.” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. III.

The third criterion of the Burliton standard requires a balanci of the equities in determini whether reimbursement should be awarded. A major consideration in determini whether the equities favor the parent is whether the parent cooperated with the Department of Education throughout the process to “ensure that the child receives a FAPE.” D.C. v. New York City Dept. of Educ., 950 F. Supp.2d 494, 515 citi Bettier v. N.Y.C. Bd. of Educ., No. 06 Civ. 6889, 2007 WL 4208560 at *6 (S.D.N.Y. Nov. 20, 2007).

I conclude that the equities support the parent. The evidence establishes that the parent cooperated with the Department of Education throughout the CSE process for the 2013-2014 school year.

The enrollment contract with and the money paid to the school did not demonstrate that the parent failed to cooperate with the CSE (DOE Openi Statement, Heari: 18). was required to pay an $8,000.00 non-refundable deposit to prior to the IEP meeti in February 2013, in order to secure a placement for in the event that the Department of Education did not provide an appropriate program and/or placement. And, to maintain that placement she was required to make additional payments of $21,695.00 prior to the first day that she was permitted to visit P.S. 282 (: 136-137; Parent’s Ex. E at 1, Ex. H) Thus, the signi of the contract and the tuition paid prior to the start of the school year was not evidence of bad faith. See D.C. v. New York City Dept. of Educ., 950 F. Supp.2d at 515, supra

The contract specifies that if the student attends a public school and is notified by September 1, 2013 of the parent’s intent to accept that placement, the school would refund all tuition payments excludi the deposit and any late fees, upon receipt of two report cards from the attended public school (Parents’ Ex. E. at 1). The fact that did not get to visit the proposed placement until after the September 1st deadline was through no fault of her own. As explained previously, although the IEP was developed on February 14, 2013 givi the CSE more than ample time to offer a placement recommendation prior to the end of the 2012-2013 school year and well before the September 1st refund deadline, it did not send out the FNR until July when could not visit because the school was already closed for the summer.

In light of the above I find that the equities of the case support the parent. * * *

Based on the above findis of fact and conclusions of law, I find that the Department of Education is required to reimburse the parents in the amount of $51,390.00 minus the fee for the Parent Association Dues and any late fees that may have been assessed for ’s tuition at for the 2013-2014 school year (Parents’ Ex. J at 1).

ORDER

In light of the above findis of fact, it is hereby ordered that:

a) Within 30 days of receivi a copy of the tuition contract for the 2013- 2014 school year at , proof of payment by the parent and proof of ’s attendance, the District is reimburse the parents for the amount of tuition not to exceed $51,390.00 minus the fee for the Parent Association Dues and any late fees that may have been assessed. If the parent is still maki periodic payments to the school the Department of Education is to reimburse the parents within 30 days of proof of each payment. Dated: June 18, 2014

Rona Feinberg mv

RONA FEINBERG, ESQ.

Impartial Heari Officer RF;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 maili and the four days subsequent thereto shall be excluded in computi 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 fili 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

Department of Education:

Exhibit 1 Individualized Education Program

dated June 26, 2013, 12 pages

Exhibit 2 dated December 11, 2012, 1 page

Exhibit 3 dated January 15, 2013, 5 pages

Exhibit 4 dated April 29, 2013, 4 pages

Exhibit 5 dated April 29, 2013, 8 pages

Exhibit 6 Final Notice of Recommendation

dated July 3 2013, 1 page

Exhibit 7 Individualized Education Program

dated February 14, 2013, 12 pages

Parent:

Exhibit A Impartial Heari Request dated

September 9, 2013, 6 pages

Exhibit B Findis of Fact and Decision dated

April 23, 2012, 15 pages

Exhibit C Notice dated August 23, 2013, 2

pages

Exhibit D Confirmation of Delivery of Notice

dated August 23, 2013, 3 pages

Exhibit E Enrollment Contract dated February

4, 2013, 2 pages

Exhibit F Attendance Report dated November

8, 2013, 1 page

Exhibit G , 1 page

Exhibit H Tuition Affidavit dated October 15,

2013, 1 page

Exhibit I dated August 2, 2013, 1 page

Impartial Heari Officer:

Exhibit I Case Follow Up sheets indicati

extensions of the timeline, various

dates, 9 pages

Exhibit II Parent’s Closi Brief undated,11

pages