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

Date of Hearing: May 21, 2013

July 1, 2013

September 17, 2013

October 31, 2013

December 4, 2013

Actual Record Closed Date: January 18, 2013

Hearing Officer: Israel Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

Advocate, Educational Advocacy Service (Via Telephone) — Parents

NO APPEARANCE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 1, 2013

Advocate — Parents

District Representative, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17,

2013

Advocate — Parents

Parents

CSE DOE Representative — DOE

IEP Witness (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2013

Advocate — Parents

Parents

Executive Director of — Parents

Program Coordinator (Via Telephone) — Parents

District Representative, CSE 7 — DOE

Assistant Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2013

Advocate — Parents

CSE- Representative — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

On March 13, 2013, following a recusal by another Impartial Hearing Officer (IHO), I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 794 in the matter . I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: May 21, 2013 (prehearing conference), July 1, 2013, September 17, 2013, October 31, 2013, and December 4, 2013. Extensions of the compliance date were granted due to unavailability of witnesses as well as to allow time for receipt of the final transcript so that this IHO could render a decision referencing the complete records of this hearing.

This is a dispute with regard to the appropriateness of the placement site offered by the DOE as well as with regard to the appropriateness of the unilateral placement arranged by the parent Individualized Education Program (IEP) and the placement for for the 2012-13 school year. The Department of Education defended its IEP dated 5/30/12, in which was classified as having a impairment, the 12:1 class it recommended, Exhibit 1, and the placement offered and the DOE’s position is also that the equities favor the parent. Tr. 14-16, 209-217. The position of the parent is that “the Parent is not challenging the class placement, but the lack of availability of the class placement described in …[ ’s ] IEP.” The Parent’s view is also that the unilateral placement was appropriate and that there are no equitable considerations that would lead to reducing or stopping the ordering of payment by the DOE for ’s educational costs the private school where was unilaterally placed by her parents. Tr. 204-209.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only show 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.”

In R.B. and H.Z. on behalf of C.Z. v. New York City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.”

Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE.

The second circuit has recently clarified “that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.” R.E. v. N.Y.V. Dep’t of Educ., 694 F.3d 167, 2012 WL 4125833, at 12 (2d Cir. Sept. 20, 2012).

Basing its decision on R.E., in R.C. ex re. M.C. v. Byram Hills School Dist., 2012 WL 5862736 (S.D. New York Nov. 16, 2012), at 11, District Judge Daniels wrote the following with regard to the effect of a parent rejecting an IEP:

Given the Second Circuit’s recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom a student would be placed in where the parent rejected an IEP before the student’s classroom arrangements were even made.

As is clear from another recent case, however, the burden remains on the school district “to prove that the proposed placement was adequate.” B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., F. Supp. 2d, 2012 WL 6691046 (S.D. New York Dec. 26, 2012), at 7.

R.E. reaffirmed its prior holding in T.Y., that a school district must “conform to the program offered in the IEP.” R.E., 694 F.3d 167, at 192. As stated in T.Y., 584 F.3d at 420, school districts do not “have carte blanche to assign a child to a school that cannot satisfy the IEP’s requirements.”

Another recent case, K.L. v. NY City DOE, 2012 WL 4017822 (SDNY), at 13, the court reiterated the conclusions of TY, at 419, that the federal regulations “only require that the parents have an opportunity to participate with respect to ‘the general type of educational program in which the child is placed,’ not the specific brick and mortar site.”

In a recent case in which a mother testified based on her single half hour visit to a school that her child would have been placed with higher functioning students, and there was evidence to the contrary, the judge concluded that her testimony was not sufficient “to warrant a finding that … [the] IEP was not ‘reasonably calculated’ to confer educational benefits.” The opinion continued:

… just as the Department may not rely on retrospective testimony concerning the services that F.L. would have received had the parents accepted the proposed placement, the parents cannot rely on observations of a particular teacher or classroom because there is no guarantee that F.L. would have been placed in the classroom visited…

F.L. v. NYC DOE, WL 4891748 (SDNY), at 14.

A recent SRO decision summarized the view that when parents reject a program and placement in advance, determination of whether the offered program was appropriate may be made on the basis of the IEP alone:

The sufficiency of a district’s offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42

[SDNY 2011]. If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to failure to implement it (id., see also Grim, 346 F.3d at 381-382 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]).

SRO 12-10.

In Grim v. Rhiinebeck, 346 F.3d 377, 381-382 (2d Cir. 2003), the situation was that the parents had removed their child in advance. The Second Circuit analyzed the appropriateness of the program offered by the school district on the basis of the IEPs alone.

In a case just decided recently, D.C. v. New York City D.O.E., 12 Civ. 1394, 3/25/13, at 43, Judge John G. Koeltl wrote that in cases “involving implementation of the IEP, testimony from the Department is permissible, but it must be limited to information that was reasonably known to the parties at the time of the placement decision.” Also, the Judge held with regard to inadmissibility of evidence by the Department of Education, “… only testimony regarding events that occurred after the unilateral placement decision was made [are inadmissible] or testimony of information that alters the representations that were made to the parent.” Id. at 42. Thus, once a unilateral placement has occurred, what occurred afterwards is not only irrelevant to the legal conclusions but should be inadmissible as evidence.

Here, we have a situation where the parent is not contesting the program recommended by the DOE. There was testimony by the DOE’s own witness, however, that the site at which the DOE sought to place did not in fact contain a class that offered what the IEP mandated; i.e., a 12:1 special education class. The DOE’s school witness explained that the School Based Support Team would have had to meet with the parents and develop something else, such as an ICT Program, and then modify the IEP. Tr. 90-111. On this same topic, the parent testified, “They didn’t have a 12:1 class. [With regard to her visit to the proposed placement site, she said that a member of the school staff she met with] “seemed confused I was sent there.” Tr. 118-119. It is clear from the case law cited above that the DOE has the obligation to provide a placement that fulfills the IEP; which it appears they did not do. Further, as is clear from RE and subsequent cases, the DOE cannot remedy deficiencies in its IEP subsequent to the time when the parent had to make a decision. The best the DOE could have done, it appears from the testimony, was to make post-IEP modifications. But the parent had to decide on the basis of the IEP, not on the basis of unknown changes to me made subsequently. Thus, it is clear that the DOE has not satisfied its Prong 1 burden, under Burlington/Carter.

Ms. Executive Director, described as a “transitional school where children come in for approximately two to three years and do an educational cycles to teach and improve all their language skills so they can progress and open the pathways for reading, writing, spelling, comprehension, math, science, social studies, so their reading becomes on par and their learning skills so that they can continue in a mainstream educational program with success…” Tr. 130. She described the school’s supervision of the and also had . Tr. 137. Ms. opined that progressed during the 2012-13 school year; progressed in reading, math and other academic areas. Tr. 142-143.

Ms. the assistant program coordinator at testified. She described the school as multisensory in its approach. She explained that the was utilized, which is suitable for a student such as , who was classified has having a and who has “significant problems with phonological awareness.” She described other areas of difficulty such as writing difficulties. She testified was taught by a teacher with a Masters degree in special education in a small class, containing ten students. The class had a teacher and an assistant teacher. Tr. 156-160. She described the curriculum and how it was modified to meet MB’s needs as well as instructional approaches utilized to address MB’s learning needs. Tr. 161-172.

Although did not provide related services provided by a speech therapist, as was mandated on ’s IEP, the school appears to have addressed needs in this area through the Orton-Gilllingham instruction that was offered. “We’re a speech and language program and we met her goals and addressed them all in the IEP in the daily Orton Gillingham sessions. “ Tr. 149 . it appears was also provided with counseling. Tr. 150.

Thus, it appears that provided individualized instruction, in small classes, with curriculum and instructional approaches that seem to have been tailored to meet unique educational needs. And she appears to have progressed as a result. I therefore conclude that the Parent has satisfied the burden of showing the appropriateness of Ohr Halimud.

I see nothing in the record that would lead me to conclude that the parent was anything but cooperative and I see no reason to deny or reduce the awarding of funding for equitable reasons.

The income of the family was approximately $38,000 per year, according to their 2012 federal tax return. With this income, the family had to support two parents and three children. Exhibit L. Given that the cost of of $39,725.00,

Exhibit K, exceeded the family’s income, it is understandable that the parents had difficulty paying the school costs up front. Exhibit K shows as of April 2013, the family had only paid approximately $4,025.00 to the school. In such a situation, where parents lack the funds to pay up front, a school district must pay the monies owed, assuming that the parent’s claim is meritorious with regard to the three Burlington factors. This conclusion is based upon the following case law.

In Miener v. Missouri, 800 F.2d 749 (8th Cir. 1986), 753, the court declared, “we are confident that Congress did not intend the child’s entitlement to a free education to turn upon her parent’s ability to ‘front’ its costs.” So the fact that the situation is not one of reimbursement should not be the important factor, eliminating the ability of a parent to obtain financial relief.

In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) at 805, the court followed similar reasoning:

By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception… Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of could lead to tremendous educational, social, emotional, and . Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.

In a more recent second circuit case, Mr. A. ex rel. D.A. v. NYCDOE, 769 F. Supp. 2d 403 (SDNY 2011), the court concluded that federal statute “authorizes direct retroactive tuition remedy for the same reasons that the Burlington court found that the Act authorizes a tuition reimbursement remedy…. Where … parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition relief.” Id . at 428.

That attended a private school which appears to include religious instruction, should not pose a problem with regard to the DOE funding the nonreligious part of the school day; i.e. by far most of the day. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “ The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive religious instruction in …[the private school].” Application of a Child with a Disability, Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their disabled child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a sectarian school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for religious “worship, instruction, or proselytization.” This rule prohibiting use of federal funds to pay for worship, instruction or proselytization is from 34 CFRϸ 76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid. Zobrest did allow public funding of a sign-language interpreter at a Roman Catholic School.

Consistent with this case law, the fact is a sectarian school presents no obstacle to funding of special education services there. Funding of a part of the day devoted to prayer and religious instruction, however, presents a problem with regard to using public funds to promote the establishment of a particular religion, which consistent with Footnote 7 of Zobrest, is prohibited as a constitutional violation.

Based on the information obtained in Exhibit F, Class Schedule, it appears that there were 33 hours of instruction per week at . Judaic Studies, taught four hours a week, would appear to be of a religious nature. Four hours is approximately 12% of the total. Thus, the DOE shall be responsible to pay 88% of the total cost

ORDER

Upon receipt of confirmation of the amount paid by the parents and the amount still owed by the parents for s attendance during 2012-13, the DOE shall reimburse the parents and pay directly to for the cost of $39,725.00. This amount shall be paid within two weeks of receipt of confirmation of the amount paid and the amount still owed by the parents to . Dated: January 22, 2014

________________________

ISRAEL WAHRMAN,ESQ.

Impartial Hearing Officer IW;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 mailing and the four days subsequent thereto shall be excluded in computing 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 filing 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

PARENT

A Impartial hearing request, dated 3/11/13, 4 pages B Program description, undated, 2 pages D FNR, dated 6/27/12, 2 pages E 10-day notice, dated 8/15/12, 2 pages F '12-'13 class schedule, 1 page G '12-'13 student progress report, 4 pages H '12-'13 class description, 1 page I Enrollment contract, dated 9/5/12, 1 page J '12-'13 attendance record, 1 page K Affidavit of payment, dated 4/24/13, 1 page L U.S. Tax Return, dated 3/18/13, 3 pages M 2012 proof of payment, various dates,5 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 5/30/12, 12 pages 2 FNR, dated 6/27/12, 1 page 3 Teacher progress report, dated 5/2/12, 2 pages