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

Datea of Hearing: June 3, 2014

June 11, 2014

Actual Record Closed Date: September 2, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED June 3, 2014 June 11, 2014

ESQ. — Student

Parent/Mother — Student

ESQ. — DOE

Committee on Special Education Region Nine (Via Telephone) — DOE

Attorney — Student

Mother — Student

CSE Liaison (Via Telephone) — Student

Attorney — DOE

Placement Official (Via Telephone) — DOE

Principal (Via Telephone) — DOE

On June 3, 2014 and June 11, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) 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”).

The proceeding was initiated at the request of the parents by correspondence dated September 27, 2013. (Ex. A) I was appointed Impartial Hearing Officer on September 30, 2013. (T. 4) I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on October 29, 2013, the initial hearing was scheduled for January 6, 2014, the first mutually available date for the parties, the hearing officer and the witnesses but that hearing was thereafter adjourned at the request of the parent. (T. 4, Ex. I ) The hearing was rescheduled to February 16, 2014.

(T. 4) By correspondence dated January 28, 2014, an amended hearing request was filed, amendment waa=s thereafter granted and, accordingly, the February 6 hearing was cancelled as a consequence of the new resolution period. (T. 4, Ex. B) A prehearing conference concerning the amended complaint was held on March 3, 2014 after the second resolution period ended and a hearing date of April 24, 2014 was scheduled. (T. 4, Ex. I ) However, the hearing office had not processed the notice of appearance of the district’s counsel, he did not participate in the conference and was not available on the scheduled date. (T. 4-5) The hearing was thereafter scheduled for June 3 and June 1. (T. 5)

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 memoranda. 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. (T. 5, 57, 261262, Ex. II )

The current compliance date is October 10, 2014. The record closed on September 2, 2014, upon my receipt of all closing memoranda. ^[1]

2

Background

The student for the 2013-2014 school year and classified as a student with . (Ex.2) That classification is not in dispute. (Ex. V) The student commenced as a school age student in public school in a mainstream class, was thereafter classified as a special education student and has . (T. 241-243) He has . (T. 242)

On February 21, 2013, the parents executed a contract for the 2013-2014 school year specifying that tuition for that and that the parents were responsible for full payment of tuition unless the by July 1, 2013. The contract specified that if there was a withdrawal by that date the parents were responsible only which would not be refunded. (Exs. G, I)

The CSE convened on April 22, 2013, to develop an IEP for the 2013-2014 school year. It recommended an ”). specified numerous management needs and provided testing accommodations. Goals . (T. 37-44, Ex. 2) The student’s mother (“the parent”), his ELA teacher participated in the review and all disagreed recommendation on the ground that the student required a . (T. 244-245, Exs. 2, 5) At the review, the parent was advised that she would receive a copy of the proposed IEP in the mail. (T. 246)

The parent made several telephone calls during the summer concerning lack of receipt of the IEP and placement but was unable to reach anyone. (T. 247)

By letter dated August 21, 2013, the parent informed the CSE that she had not received the IEP, had not received a placement for the 2013-2014 school year and that she believed that an ICT program was not appropriate for the student. She informed the CSE that unless an appropriate IEP and placement were offered, the student would continue at received from the CSE. (T. )

By letter dated September 27, 2013, the parents requested the instant impartial hearing, claiming among other things that neither the IEP nor a placement offer had been received. (Ex. A) The DOE Due Process Response, dated October 1, 2013, did not did not specify any placement. (Ex. 1)

In October 2013, subsequent to receipt of the DOE Due Process Response, the parents received a placement offer for a public school dated July 1, 2013. (T. 248, Ex. 4) In this mailing the parents received only the placement offer and were not provided with a copy of the IEP. (T. 249)

After receiving the placement offer, the parent visited the recommended school, with which she was familiar because the student had previously attended it. (T. 249-251,

258) By letter dated November 1, 2013, the parent informed the CSE that she continued to believe that the program was not appropriate. She also again informed the CSE that the parents had not received the IEP. (T. 249-251, Ex. E)

By letter dated November 13, 2013, the CSE acknowledged receipt of the November 1, 2013 letter and transmitted the IEP. (T. 251, Ex. F)

The parent filed an amended hearing request by letter dated January 27, 2014. (Ex. B)

Positions of the Parties

The parents assert that: the DOE failed to provide a placement before the commencement of the school year as required by State regulation; the DOE failed to provide the IEP prior to the commencement of the school year and therefore denied the parents meaningful participation; the IEP was procedurally and substantively defective because there is inadequate evidence supporting the claimed testing results and the program recommended is not appropriate. For each of these reasons the parents claim that the DOE has failed to establish that it provided a FAPE. The parents claim that their unilateral was appropriate and that equitable considerations require reimbursement. (Ex. V) 3 The DOE asserts that the IEP was procedurally valid and offered a program reasonably calculated to enable the student to receive educational benefit and that an appropriate placement which could implement the IEP was timely offered. The DOE makes no specific claims with regard to the transmission of the IEP. With regard to the unilateral placement, the because it was too restrictive. With regard to equitable considerations, the DOE asserts that parents did not demonstrate the good faith participation necessary to to warrant reimbursement, noting that the contract was signed prior to the IEP review and that no notice of that was provided to the CSE. (Ex. IV)

Cases Presented

Both parties submitted exhibits for admission into evidence. A list of documents in the record is appended.

The DOE presented the testimony of the following witnesses: the school t who participated in the April 22, 2013 CSE review and district representative (Ex. 2) school Special Education Evaluation Placement and Program Officer for CSE 9 at the relevant time (T. 97)

The parents presented the who was an experienced special educator (T. 167-

169) (“ ”).

Findings of Fact and Conclusions of Law

I find the testimony of the witnesses credible in that I find that they testified truthfully in accordance with their current recollections and as to the opinions they held. Relevant testimony in view of my conclusions in this matter is discussed below.

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]

Such other claims as may have been made in the parents’ amended hearing request are deemed to have Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that been abandoned. maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

Further, pursuant to the IDEA and State regulation, the district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. 34 CFR 200.323[a]; 8 NYCRR 200.4(e)(1)(ii); Appeal No. 13-156. I conclude that a district failure to establish that it timely provided a placement requires a conclusion that the district has failed to provide a FAPE. Mr. & Mrs. A v. NYC DOE, 769 F. Supp. 2d

403 (S.D.N.Y. 2011)

In the instant matter the parents assert that a placement was not offered until October 2013, after the filing of the impartial hearing request. The DOE disputes that claim. It claims that a Final Notice of Recommendation (“FNR”) identifying a placement dated July 1, 2013 (Ex. 4) was mailed the same date and relies upon the testimony of It asserts that the that in accordance with customary office practice, he printed the FNR on the date specified thereon, that he placed it in an envelope and that he brought it to the mailroom to be mailed on that date. (T. 100, 101, 103, 109, 125) There is no claim that the address specified was incorrect. Accordingly, the DOE relies upon the presumption of mailing and receipt by the addressee. (See Ex. IV at 7-9 and the cases cited therein; see also Appeal No. 13-156) Finally, the DOE testified that if a letter is not returned to his office it is presumed to have been received and that he had no recall as to that letter having been returned. (T. 108-109) However, I conclude that contrary to the district’s claims, the evidence does not show that the alleged customary office procedure was followed. Accordingly, the district’s reliance on that is misplaced. I note the following with regard to that conclusion:

asserted no specific recollection concerning this particular matter. (T. 123) That is not surprising. However, there is no documentary evidence whatever to support the claim that the FNR was timely provided although his testimony asserts that there should be in the records. (Exs. C, D) For example, testified that there should automatically be an “event” noted in the SESIS log when the FNR was printed. (T.111, 113, 115, 124,

129) 4 There was none. (Exs. C, D ) Although testified that an “event” could be

SESIS is the DOE’s computerized record keeping system.(T. 110) deleted/cancelled from that record, he stated that he would never do so and he provided no explanation for why or by whom that would have been done in this case. (T. 128-130) testified that he was the designated person with regard to the issuance of FNRs. (T. 101) Further, if some unknown person printed an FNR, there is no indication that that person was authorized to do so or that s/he followed alleged customary procedures concerning mailing or that it was mailed at all.

Further, I find not credible give no in this proceeding that an FNR bearing a certain date could only have been printed on that date. (T.106, 109) I note that there were gaps in his knowledge of and that his testimony as to how and when things were done was inconsistent, including for example his initial and repeated testimony that the prior notice package would be printed with a dated FNR although the FNR submitted bears a date several weeks after the record indicates that that the prior notice package was mailed on June 7. (T. 117, 118, 119, 123,126, Ex. C)

While the CSE’s failure to respond to the parent’s August 21 Ten Day letter might be considered to be oversight or lax practice with regard to those responses, I also note with regard to the reliability of the DOE’s claims in this matter, that there was no specification identifying the placement in the district’s Due Process Response although the issue was definitively raised in the parent’s initial hearing request and the Due Process Response form has a preprinted place for that information. (Exs. 1, A, 5) There was no testimony explaining the procedures for completing that form and shedding light on why that information might have been omitted if it was available at that time as the district claims.

Finally, there was no indication that an FNR was signed and returned by the parent. In such circumstances the DOE’s procedures require outreach efforts and the notation of the efforts in the SESIS records. (T. 116, Ex. I) Such records would have provided support for the DOE claim that an FNR had been issued and mailed to the parent. However, there are no entries indicating any calls were made. (Exs. C. D) While that , it could also indicate that no placement offer had been sent to the parent.

There is therefore no evidence, testimonial or documentary, warranting reliance on office procedures to establish that the DOE timely offered a placement by issuance and mailing of an FNR. Further, there has been no testimony as to anything else indicating that the district had an IEP in effect at the commencement of the school year. I note for an example, that the designated school had not been provided with that information. (T. 156)

I conclude that the district has failed to establish that it provided a FAPE for the 2013-2014 school year. Accordingly, I do not address the parents’ other Prong 1 claims except to note with regard to transmission of the IEP that I find credible the parent’s testimony that that was not received until November 2013. The record does not support a conclusion that it was provided prior to that time. I had no knowledge with regard to the transmission of the testified only that she had no recollection in this case and that “normally a copy is mailed to the parent” without any further information provided as to how, by whom and according to what procedure or practice that is done. (T. 112, 54)

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. 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 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).

With regard to the student’s deficits, I note that the CSE classified the student as learning disabled. The IEP specified that the student had estimated to be at the and comprehension estimated to It specified that the student required teacher modeling to and prompting at his ability to solve word problems. The IEP specified that he was . (Ex. 2) See also T 177-178, 181, 212. asserted that there were significant inconsistencies between teacher estimates and test results, it is noteworthy that the CSE did not do its own testing and that the student continued to be classified as a student with a disability.

The undisputed evidence shows that:

Windward is a special education school that primarily serves students with language the IEP as well as the opportunity to expand and elaborate on his ideas, develop confidence in expressing what he knows and learn strategies to read and understand more complex text. (T. 209-211, 182-184, 189-195, Ex. 2)

Reading and writing instruction was provided in a class which facilitated necessary individualized support and attention. And students were grouped according to language needs. (T. 195, 197) His teachers included a certified special education teacher who was also . (T. 179) The student per day (reading, writing which enabled appropriate and reinforced addressing of the . (T. 178-179, 181-188) writing program was utilized to address the student’s writing needs by teaching the the expansion of sentences and the elaboration of issues. (T. 190-195) The student demonstrated progress in the 2013-2014 school year in . (T. 215) His writing improved with regard to the expansion and elaboration of ideas, the utilization of more specific vocabulary and more complex structure and the new ability to write a multi-paragraph essay with appropriate supports. (T. 184, 194-195) “Good progress” was made in spelling and the student reached an end level. (T. 199) The student’s decoding improved, as determined by formal and informal assessments, from an has improved from beginning . (T. 198, 200, Ex. 2) See also Exs. J, K.

Math instruction was provided initially but in about mid with students all operating at a similar level. (T. 202) His teacher was certified in special education and had taken math training classes. (T. 203) The Envision math program was utilized in his class. (T. 204) The student has strengths in math computation but weaknesses in word problems which were addressed through the teaching of strategies such as model drawing and through scaffolding. (T. 204-205) The student progressed in the 2013-2014 school year in areas including decimals, fractions, integers and basic algebra as demonstrated by was working on skills appropriate to his grade level. (T. 207-208, 204)

The student also received science and social studies instruction from certified teachers and the courses were based upon State curriculum standards. (T. 208-209)

Windward provides an intensive professional development program, all teachers and assistant teachers are required to take courses in multisensory reading instruction, expository , and other courses and workshops are offered. (T. 174-176, 218-219, 231232)

The sole specific challenge to the parents’ placement made by the DOE is that it was too restrictive. However, as the DOE acknowledges, it is well established that although it is a factor to be considered, a parents are not bound to the same LRE requirements as the district. Further, the credible evidence shows that there were many socially appropriate students and appropriate peer models at Windward and the student had an opportunity for appropriate social interactions. (T. 214-215) I also note that parents need not demonstrate that their placement was perfect.

I conclude, based upon the foregoing, that the parents have met their burden to demonstrate that the placement they selected was reasonably calculated to enable the 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.

In the instant matter, the DOE does not assert that the parent failed to cooperate with the CSE in the development of the IEP and, further, I find that there is no evidence to support such a claim. Although the DOE asserts that the parent did not inform the CSE as to the contract, there is no indication that that information would have resulted in any different action by the CSE. (Ex. IV) It is undisputed that the informed the CSE at the review as to concerns that the program it proposed was not appropriate and, further, that the Windward program of small classes was. The evidence shows that the parent participated and timely communicated her objections to the program and later about the school. (T. 244-245, Exs. 5, E)

Rather, the DOE asserts that the parents had no genuine desire to consider any public school program was preferred. (Ex. IV) However, a parent’s preference for a private school 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. The DOE notes with regard to this issue that the contract did not permit withdrawal after July 1, 2013. (Ex. IV) However, the parent testified that based upon extensive personal as well as communications with other parents she believed that the parents if a DOE placement was accepted and the . (

T. 252-255) I find that testimony credible.

Accordingly, I find that equitable considerations do not bar or limit DOE funding in this matter.

Order

The DOE shall promptly reimburse the parents for the 2013-2014 school year in the upon submission of satisfactory evidence of the student’s attendance and the parents’ payments.

Dated: September 10, 2014

, 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.

EXHIBITS

PARENT

A Impartial Hearing Request, 9/27/13, one page

B Amended Impartial Hearing Request, 1/8/14, two pages

C Log, 3/13, 3/14, 2 pages

D Log, 7/25/11 to 11/13/13, two pages

E Parent Letter to CSE, 11/1/13, 1 pg

F Letter to Parent, 11/13/13, one page

G dated 2/21/13, 2 pages

H Proof of payment 2/2013 through 1/2014, 3 pages

I DOE standard operating procedure manual pgs. 116-117, 3 pages

J reports, 2014-2014, 14 pages

K report card, 2013-2014

DEPARTMENT OF EDUCATION

1 Due Process Response, four pages

2 IEP, April 22, 2013, ten pages

3 Evaluation, 3/28/11, 4/1/11, 4/6/11, four pages

4 School Placement Letter, July 1, 2013, one page

5 Ten Day Letter to CSE, August 21, 2013, one page

IMPARTIAL HEARING OFFICER

I Prehearing Conference Memos

II Compliance date extension decisions

III Subpoenas

IV DOE Closing Memo

V Parents Closing Memo

Footnotes

[1] The initially scheduled date for submission of closing memoranda was rescheduled at the request of the district with no opposition from the parents. The contents of this Background section is included herein as Findings of Fact.