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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 12, 2013
Actual Record Closed Date: January 8, 2014
Hearing Officer: Leah Almeleh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2013
Attorney — Student
Parents
Co-Director (Via Telephone) — Student
Teacher (Via Telephone) — Student
DR., CSE Chairperson's Designee — DOE
PROCEDURAL CONTEXT
On October 3, 2013 I was appointed to hear the matter versus the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On October 3, 2013 a pre-hearing conference was convened telephonically for the purpose of developing a litigation schedule and narrowing the issues. Thereafter, hearing on the substantive merits was held on December 12, 2013. At this time, the Department declined to submit any evidence or testimony and the Parents proceeded with their case.
Specifically, the Parents assert that the Department’s educational placement for the 2013-2014 school year, as memorialized by the Individualized Education Program (hereinafter “IEP”) of August 21, 2013, stands in violation of its mandate pursuant to [20] U.S. Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exh.
B. In furtherance thereof, the Parents assert that the proposed Department of Education placement is neither suitable nor appropriate for their child, relying upon the rules and principles set forth in Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] and Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). Consequently, the Parents have interposed the within Due Process Request for tuition reimbursement for the 2013-2014 school year at the (hereinafter “ ”). Finally, consistent with 34 C.F.R. Sect. 300.515[a] and 8 NYCRR 200.5[j][5]), an extension to the timeline was granted and the decision date was duly extended.
It is noted is “a child with a disability” as that term is defined under the IDEIA,
THE DEPARTMENT OF EDUCATION’S CASE
No one testified on behalf of the Department of Education, nor was any evidence submitted, rebuttal or otherwise. The Parent’s Case is licensed by New York State as a Special Education Teacher and is a Board Certified Behavior Analyst. She presently serves as the Co-Director of . Tr. at 18-20. As such, she described the services offered by the , noting that there are approximately 328 students serving children from ages three through fourteen; the School is ungraded. All lower school classes are capped at eleven students with two full-time instructors in attendance at all times. As is responsible for modeling lessons, assisting with curriculum, meeting with parents and outside service providers and therapists, and supervising weekly meetings with each student’s team. She is, additionally, responsible for the day to day management of .
The School serves a population whose special education needs reflect a languagebased disability. Many of students therapy needs. Tr. at 21. A multi-facetted array of related service providers includes , math, language and who offer both push-in and pull-out services. is a non-integrated School, serving classified children only. All of ’s professional staff is certified and participate in on-going in-service training throughout the school year. Professional development at conferences is additionally offered as appropriate.
is employed by , a position she has held for three years. . is assigned to a class of eight and none year olds who demonstrate language-based difficulties and attentional needs. Tr. at 32. The use of special education techniques includes, chunking, previewing and repetition to ensure skill mastery before new material is introduced. Tr. at 60. The witness described a sweet with ( who . She noted that, “He has trouble sitting through . . . forty-minute periods. He needs a lot of movement breaks, he needs a lot of opportunities to ask questions and just uses different strategies to really help keep his body calm in order to you know . . . in the class.” . is additionally somewhat as expressed by a significant . Although he is of retaining information, the student requires a small class setting which offers a great deal of individualized support. She noted that . is when his questions are not addressed quickly, a scenario which exacerbates his anxiety and inability to self-regulate. Tr. at 30-33. .’s needs are met by allowing a , 1:1 and small group instruction and limited environmental transitions. In addition, is allowed constant access to the occupational therapy room if he is experiencing an “off” day. Tr. at 52.
. receives small group instruction in several content areas. During these times, the witness testified that the child is placed according to his grade level and ability. In reading, . is working on decoding, spelling, comprehension and fluency. .’s reading teacher has indicated that the student is becoming a stronger decoder by tackling multisyllabic words. additionally addresses .’s reading deficits through the Orton Gillingham approach by utilizing a consistent, rule-based, multi-sensory approach to teaching phonics and word associations. This has been particularly valuable for as the program’s internal consistency militates against . Tr. at 37. The student is additionally developing his ability to make inferences through augmenting his vocabulary and utilizing context clues. Lastly, ’s reading fluency. As such, the student is learning to modulate his voice and respect punctuation. Ibid. Progress is monitored both informally and formally through weekly quizzes.
Beyond academic improvement, Ms further noted that the child has developed greater self-advocacy skills; this is particularly important as these skills support ability to remain on task, function independently and engage more appropriately within a social setting. Tr. at 51-54. The School’s use of the Social Detective program additionally develops .’s social skills through role playing and team building activities.
The child is additionally assigned to a math class in which the students are reinforcing the automaticity of multiplication facts from zero to 12. Using both the Singapore Math and Stern curricula, each new skill is broken down into very small steps and students practice their skills through the use of manipulatives in a multi-sensory and physically active format. can now successfully read and write numbers to the millionth place using a box template. His multiplication skills are additionally strengthening.
Writing is one of ’s most stressful classes as this skill places demands upon many aspects of executive function such as organization and sequencing. . is assisted with the brain-storming and organizational components of this process by focusing on the use of small outlines which reflect key words, topic and concluding sentences. Although A.H. initially required segregation in the School’s break-out room during this instruction, he is now able to remain with the group and work independently. He is no longer task avoidant and is now cooperative during this class, a situation Ms. described as “huge progress.” Tr. at 48. Finally, the witness noted that participated in a social studies class in which he received push-in language services, a protocol which enabled A.H. to maximize receive the benefit of these services within a highly language-based classroom.
Ms. additionally observed that formal team meetings with teaching staff and related service personnel are held twice weekly for each student. This enables the use of “cross-curriculum overlap” to reinforce skills being addressed throughout the day, rather than in one particular class. Tr. at 56.
The Parent additionally testified. She noted that her son participated in mainstream preschool at the . At age four, he was referred for occupational therapy intervention. Thereafter, began attending the Ideal School where he remained briefly until articulating into P.S. 191. In 2011, A.H. was enrolled at Gaynor where he has been placed until the present time.
The Parent noted that is medicated for and, although he his doctors are reluctant to initiate a course of medication for . due to his age. Tr. at 68-69. Nevertheless, A.H. receives weekly therapy from a clinical psychologist for this condition. Tr. at 84. In 2009, her son was evaluated by the Department and since that time, he has been classified. On August 21, 2013, Ms. participated in a CSE meeting.
At this time, . was classified as “ ,” and a class was recommended. The witness noted that she objected to the classroom designation, noting that it was too large an environment for . In furtherance thereof, she opined that required two instructors within the classroom, due to the impact of his and on-task behavior. Similarly, .’s led to a constant need for teacher interaction, approval and assurance. As such, she did not believe her son could manage with only one teacher in the room. Beyond this, Ms disagreed with the CSE’s determination that . did not require a behavior intervention plan, a decision she believed was based upon .’s lack rather than his actual needs. Tr. at 71-72.
Although the Parents had repeatedly noted a change of address and additionally requested a specific placement on August 22, 2013, they did not receive a placement letter from the Department until after September 9, 2013. Exhs. C, D. Thereafter, Ms. testified that several attempts to visit the school were made. Notwithstanding this, the Parents received no response from the Department and were unable to visit the proposed placement until September 17, 2013. At this time, the witness was advised that the proposed classroom was over-subscribed and the school was unable to accommodate a new student. Tr. at 76.
In sum, the Parent testified that she is pleased with . Her son now enjoys attending classes, is reading better and feels successful and confident in his studies. Despite his reading struggles, he has even asked for a Kindle this year. Nevertheless, Ms. . indicated that she, ultimately, hoped . would attend public school and noted included an “opt-out” option within their tuition contract, should the Department offer her child an appropriate placement. Tr. at 77. The Parent's Position
The Parents assert that the Department stands in abrogation of its duty to provide A.D. with a free and appropriate public education for the 2013-2014 school year in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). In view of the above, the Parents maintain that they were compelled to unilaterally place their child in a non-public school placement (Board of Education of the Hendrick Hudson Central School Department, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). Consistent with their argument, the Parents contend that constituted an appropriate placement for their son during the 2013-2014 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School Department, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.
an appropriate educational placement for . during the 2011-2012 school year?
Given its lack of evidence and testimony, I find that the Department of Education has not met its IDEIA mandate pursuant to 20 U.S. Code Section 1412 [a][3]; Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] and Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). As such, there is no prong one issue to address; the only issue before me concerns the appropriateness of Gaynor and the Parents’ equitable entitlement to reimbursement.
Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).
The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02111).
Although it is clear that the Department’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.
The facts in this matter are simple. . is an eight year old child classified as other health impaired, based largely upon a formal diagnosis of . Along with this, the child exhibits symptoms of a impairment as well as for which he is treated.
I find, at the outset, that the program offered correlates well with the student’s functional needs. Tr. at 32. The child’s weaknesses are addressed daily through small group instruction and a specialized reading program by instructors trained in Orton Gillingham methodology. This is entirely appropriate for the student and his decoding deficits. This protocol additionally provides a rule-based paradigm whose consistency addresses “as he knows what to expect.” Tr. at 37.
.’s ability to function appropriately in his classes is achieved through various accommodations and modifications. These include small group and individualized instruction in which repetition, review and previewing occur. Material is broken down into small discrete units which are easily mastered and not over-whelming. In math, special programming with Singapore Math and the Stern protocol enable a multi-sensory approach which includes a level of physicality . requires due to his The child additionally receives a specialized language-based curriculum throughout the day which is supplemented by related services such as remedial reading, language and occupational therapy, both push-in and pull-out. Beyond this ’s writing deficits are addressed through programming which supports in executive function through supported planning and organization of written materials via key words and small paragraph outlines. Most importantly, the child is learning to self-advocate recognizing, for example, his own need for sensory regulation. This has enabled . to achieve a greater degree of independence within the classroom.
The student’s is, moreover, addressed through a great deal of classroom flexibility. . is provided with on-going sensory supports, including fidgets and weighted occupational therapy materials. The child avails himself of a break-out room when he cannot tolerate his classroom environment and has on-going access to the occupational therapy gym when . is dysregulated.
The uncontroverted evidence indicates that . is progressing within this supportive environment. Tr. at 40, 51-52, 56.
“[U]ltimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In this respect, testimony regarding the student’s progress is credible and uncontroverted. I, therefore, find that the program at Gaynor is appropriate.
Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2013- 2014 school year?
Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v.
Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent.
Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch.
Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.
Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.
v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina
City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch.
Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).
In the matter at bar, the Parents received a Final Notice of Recommendation after the school year had begun. Nevertheless, in good faith, they attempted an observation of the Department’s recommended placement, only to be advised that the program was oversubscribed. Alerting the CSE as to this state of affairs, it appears that no alternative placement was offered.
I find that there are no equitable factors which militate against the Parents’ right to recovery. The evidence indicates that Ms. . participated willingly in her son’s CSE convenes, permitted evaluations of her child and shared private assessments she had obtained herself. Ms. . has attempted to work collaboratively with the Department of Education, but has been unable to engage anyone on behalf of the Department of Education to address her concerns. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition.
CONCLUSION
The Parents’ request is granted.
Wherefore, it is hereby ordered that:
Upon due submission of proof of payment along with an affidavit from the , the Department of Education shall reimburse the Parents for tuition expenses incurred at the for the 2013-2014 school year. Dated: January 10, 2014
LEAH BOTWINIK ALMELEH, ESQ.
Impartial Hearing Officer
LBA:gc
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
A Hearing Request, 10/3/13, 2 pages
B IEP, 8/21/13, 12 pages
C Final Notice and Envelope, 9/5/13, 9/9/13, 2 pages
D Letter to CSE & fax receipt, 8/22/13, 2 pages
E Letter to CSE & fax receipt, 9/17/13, 2 pages
F Educational Update, May 2012, 14 pages
G Tuition Contract, 2/20/13, 4 page
H Description of , undated, 1 page
I Class Schedule, undated, 1 page
J Proof of Payment, 2/17/13 – 10/8/13, 9 pages
Footnotes
[20] U.S.C. § 1400 et seq., and is classified as “ ” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no active dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.