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: December 4, 2013

June 16, 2014

June 20, 2014

Actual Record Closed Date: August 2, 2014

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

Dr. School Psychologist DOE 12/04/13 06/16/14 06/20/14

(T) School Psychologist DOE 12/04/13

Director of Special Services DOE 12/04/13 Advocate PARENT 12/04/13 06/16/14 Advocate PARENT 06/20/14

Father PARENT 12/04/13 06/20/14

(T) Teacher PARENT 06/20/14

On October 4, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a student who attended a private school during the 2012-2013 school year and the New York City Department of Education (“DOE”) - Home District: , Service District: involving the student’s special education program. After adjournments were granted on consent of the parties or for cause, the hearing was held on December 4, 2013, June 16, 2014 and June 20, 2014. A list of the witnesses who appeared and the documents taken into evidence is annexed hereto.

BACKGROUND

The Parent in this case alleges that the Committee on Special Education (“CSE”) developed an Individualized Educational Program (“IEP”) for the student’s 2012-2013 school year that was procedurally and substantively flawed. (See Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student at a private school for the 2012-2013 school and seeks tuition reimbursement for the same. (Id.)

THE DOE’S CASE

The DOE argues that its recommendations for the student were appropriate for the 2012-2013 school year. (T-7) The recommended DOE school could have provided the services that were recommended for the student. (T-8)

The DOE called (2) witness to testify on its behalf and submitted (2) documents in evidence. In sum, substance and relevant part the testimony on behalf of the DOE is as follows:

The first witness for the DOE sat in on several of the student’s CSE reviews and “thinks” she tested him this year. (T-9) She is certified as a monolingual and bilingual school psychologist. (T-12)

The witness testified that the IEP meeting on May 15, 2012 was attended by a special education teacher, a general education teacher, the district representative, herself as the school psychologist and the Parent’s advocate. (T-14) She does not recall the specifics of the meeting. (T-19) To the best of her knowledge the student’s management needs came from the classroom teacher. (T-22) She does not recall if any one disagreed with any of the student’s goals at the meeting. (T-25) She does not recall specific arguments about the recommended small class. (T-26)

On cross examination the witness testified that she did not recall the date of the testing that was relied on at the meeting, how long it’s been since the student was tested, what documents they had at the meeting, whether a classroom observation was done at the meeting, what grade the student was in, how many students were in the student’s class, what the staffing ratio was or whether the student was receiving any related services. (T-28-32)

The witness testified that there are no goals on the IEP to deal with the student’s frustration tolerance. (T-33) The Parent did not have an opportunity to review the IEP goals in their current format. (T-35-6) She does not recall a specific discussion about the recommended placement. (T-37)

The DOE’s second and final witness is a New York State certified school district administrator. (T-47) She testified that they have self-contained classes in a 12:1:1 ratio, integrated co-teaching classes and special education teacher support services. (T-48) They also . (T-49) For the 2012-2013 school year they had two speech therapist. (T-

50) They had at least two self-contained classes and there was a seat available in September of 2012. (T-51) The special education students stay together for their core subjects, but mainstream for gym and music and art. (T-52-3)

The witness testified that they have school assessment teams. (T-56) The teacher would be given a copy of the student’s IEP and then the rest is in his or her hands. (T-57) She believes that they could provide the services recommended on the student’s IEP. (T62)

On cross examination, the witness testified that they did not have any “12:1” classes. (T-63-4) The students have various classifications with reading levels as low as 1st or 2nd grade and up to 4th or 5th grade. (T-65-6) There are approximately (800) students in the building. (T-66) They do have provider in the building. (T-67-8) It is an asset to have a “12:1:1” class. (T-71) There was no re-direct examination of the witness. (T-72)

THE PARENT’S CASE

The Parent reserved on making an opening statement and ultimately declined to do so. (T-8 & 88)

The Parent called (2) witness to testify on its behalf and submitted (12) documents in evidence. In sum, substance and relevant part the testimony on behalf of the Parent is as follows:

The Parent’s first witness was the student’s teacher. (T-88) She has a Master’s Degree in special Education. (T-90) She is certified as a Special Education Teacher. (T91)

The witness testified that there were (50) student’s in the private school. (Id.) The student had (10) students in his class between the ages of (12) to (14) years old. (T-

92) She had one full time assistant and two assistants for reading and math. (T-93) The student started reading at the beginning of level and tried . (Id.) In math he used grade math book. (Id.) In terms of the student was very well mannered and compliant and friendly. (T-94) He did not . (T-94-5) They have a clinical psychologist and a social worker at the private school. (T-96) . (T-98)

The witness testified that they use a modified New York curriculum. (T-99) The student has progressed in reading instruction. (T-100) He beginning (T-101 & 103) The student the private school. (T-101) The student needed a lot of teacher intervention and a lot of reassurance. (T-101-2) The grouping size for reading and math was (4) students. (T-104-5)

On cross examination, the witness testified that from 8:45 am to 12:45 pm there was secular instruction at the private school and from 1:15 pm to 4:15 daily there would be religious subjects. (T-106) She did not know if the Hebrew teacher had any licenses or certifications. (T-107) There are two speech therapists in the building. (T-108) The private school covers grades (1) through (8). (T-109) They do not do standardized testing at the private school. (T-110) For reading, the student was in a group of (3) students. (T-112) She does not know if the private school nurse was licensed. (T-113) The 2012-2013 school year was not the student’s first year at the private school. (T-115) The student’s behavior chart just said that and 118-9) There were no formal observations or formal testing at the private school. (T-122) The psychologist and social worker never gave her written summaries of their meetings with the student. (T-124) There was no re-direct examination of the witness. (Id.)

The Parent’s second and final witness is the student’s father. (T-125) He testified that the advocate assisted him at the IEP meeting and that he did not agree with the 12:1 recommendation. (T-127) The student needs for his hand to be held not only because of his lack of focusing, but also because he hates to read . (T-127-8) The student’s was discussed during the meeting. (T-128) He visited the recommended DOE school. (T129)

The witness testified that he did not speak with at the private school, but he is sure that his wife did. (T-130) The witness stated that he does not know if he will have the pay the $5,000 tuition for last year to the private school. (T-131-2) He is paying for this school year. (T-132)

On cross examination, the witness testified that the student has never attended a public school setting. (T-134) His other children have also never attended a public school. (Id.) He did not bring the student to the recommended DOE school. (T-134-5) He believes that the DOE recommended school had services. (T-135-6) He does not remember if he discussed with the DOE school. (T-136) The 137) Considering that the student for his entire academic career, he would not send the student to a public school. (T-138) There was no re-direct examination of the student.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

I first turn to the question of whether the DOE offered the student a FAPE for the 2012-2013 school year. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the record indicates that the student’s CSE team on May 15, 2012 was composed of a special education teacher (via telephone), a general education teacher, the Parent (via telephone), the district representative, the school psychologist and the Parent’s advocate (via telephone). (D-1) There was no parent member at the meeting.

8 NYCRR § 200.3(a)(1)(viii) states:

200.3 Committee on special education and committee on preschool special education.

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:

(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)

It was the duty and responsibility of the CSE to ensure the Parent could effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8).

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity.

I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See 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 FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]) It is concerning that both the Parent and his advocate appeared at the IEP meeting solely via telephone. Nevertheless, I find that the record is insufficient to find that the CSE’s procedural failure to include a “parent member” at the student’s May 15, 2012 CSE meeting affected the student’s right to a FAPE.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]) Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4])

Here, the DOE’s witness to the CSE meeting did not recall the specifics of the meeting. (T-19) She did not recall if any one disagreed with any of the student’s goals at the meeting or any specific arguments that were raised about the recommended small class. (T-25-6) She also did not recall the date of the testing that was relied on at the meeting, how long it’s been since the student was tested, what documents they had at the meeting, whether a classroom observation was done at the meeting, what grade the student was in, how many students were in the student’s class, what the staffing ratio was or whether the student was receiving any related services. (T-28-32) She did not recall a specific discussion about the recommended placement. (T-37) The student’s May 15, 2012 IEP states only that the “most recent revealed the following results:” (D-1)

On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

Here, the record is devoid of any evidence that the DOE produced an IEP that accurately reflects the results of evaluations to identify the student's needs. (Supra) No evaluations were submitted in evidence and there is no proof that Evaluation referenced in the IEP was created within the previous three years, or what the contents and recommendations of that evaluation state. Under the circumstances, I must find that the Doe did not meet its statutory burden. Accordingly, I find that the student was denied a FAPE for the 2012-2013 school year.

I next turn to the question of whether the student’s private school placement was appropriate for the 2012-2013 school year. Here, the Parent need only demonstrate that the private school provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

As noted above, there were no evaluations submitted in evidence to show what the student’s needs were for the 2012-2013 school year. The student . (T-94-5) He is said to have had and needed a lot of teacher . (T-101-2) The student’s father testified that the student needs for his hand to be held not only , but also because and (T-127-8)

At the grouping for reading and/or math was either (3) of (4) students. (T-104-5 & 112) The private school does not do standardized testing. (T-110 & 122) They have a for the student, but it consists of only a chart just stating that the . (T-118-9) There are no formal observations at the private school . (T-122 & 124) This is especially problematic considering the .” (T-127-8) Finally, half of the school day every day consists of religious, not secular instruction. (T-106)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]).

There is no evidence that the student received the one-on-one assistance thereat that his “need to have his hand held” would intimate. (T-127-8) The private school does not formally assess the student and (50%) of the instruction thereat is composed of religious and not secular academic instruction. Based on the record before, I cannot find the private school appropriate for the student for the 2012-2013 school year.

Having found the private school inappropriate, the necessary inquiry is at an end. Nevertheless, I would be remised not to note that the Parent in this case stated that he did not know if he was financially liable to the private school. (T-131-2) The student in this case has never attended a public school and neither have any of his siblings. (T-134) Despite testifying that the student has not remember discussing that with the private school. (T-136) Finally, the student’s

Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]) Equitable considerations may also not support an award of tuition reimbursement where parents have failed to cooperate with a school district or have otherwise frustrated a district's attempt to offer a FAPE. (See Bettinger, 2007 WL 4208560, at *6 [stating that a "major consideration" in deciding whether equitable considerations are satisfied is whether the parents have cooperated with the district throughout the process to ensure that the student receives a FAPE]; Carmel, 373

F. Supp. 2d at 411, 417 [stating that numerous courts have held that parents who refuse to cooperate with the CSE equitably forfeit their claim for tuition reimbursement]) Moreover, equitable principles dictate that parents cannot deliberately withhold their child from an intake interview and impede a district's ability to offer a FAPE and also secure a future award of tuition reimbursement at a private school of their choosing. (See Bettinger, 2007 WL 4208560at *7-*8 and SRO Nos.: 06-025 & 05-075)

Whereas here, where the Parent has unequivocally stated that he would not put the student in a public school, I find that equitable considerations are a bar to award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for tuition reimbursement is DENIED. Dated: August 7, 2014

Edgar De Leon mv

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL;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

Number/Letter Title Dated For # of Pages

01 IEP 05/15/12 DOE 11

02 FNR 06/12/12 DOE 01

A Impartial Hearing Request 10/04/13 PARENT 05 B School Description undated PARENT 04

C IEP 05/15/12 PARENT 14

D 10 Day Notice 08/15/13 PARENT 02 E Student Progress Report 01/2013 PARENT 01 F Class Schedule 12/2013 PARENT 01 G School IEP 12/2013 PARENT 03 H Enrollment Contract 07/09/12 PARENT 01 I School Affidavit 10/05/13 PARENT 01 J Proof of Payment 12/2013 PARENT 05 K 2012 Tax Return 2012 PARENT 02 L Doctor’s Note 06/10/14 PARENT 01