Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 19, 2014

Actual Record Closed Date: July 25, 2014

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2014

Esq. Attorney — Parents

Law Student Intern Mother — Parents

Parents

(via telephone) School Director

Parents

(via telephone) School, Teacher

INTRODUCTION

On June 19, 2014 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, The hearing commenced at 1:00 p.m. and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

dated October 15, 2013, NB’s parents, by their attorney , Esq., of the Law Offices , filed due process request for an impartial hearing. Ms. filed an amended due process request on February 20, 2014. In that request, the parents maintained that the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year in that the Individualized Education Program (“IEP”) dated June 13, 2013 was substantially and procedurally flawed, that the program recommendation was not appropriate for and that no placement was offered for prior to the beginning of the 2013-2014 school year. The parents alleged that is appropriate and that the equities favor them (Parents’ Ex. A). The Department of Education did not file a response and did not appear for the impartial hearing.

I was appointed as the Impartial Hearing Officer on October 15, 2013. The original compliance date was December 30, 2013. The parents filed an amended hearing request on February 20, 2014 and the revised compliance date was May 6, 2014. On April 7, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to June 5, 2014 and hearings were scheduled for June 2, 2014 and June 4, 2014. On June 3, 2014, at the request of both parties due to a personal emergency of the District Representative the compliance date was extended to July 5, 2014 and a hearing was scheduled for June 19, 2014. At the conclusion of the hearing on that date at the request of the parents for the review of the transcript and the issuance of a Decision and Order the compliance date was extended to August 4, 2014

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

THE PARENTS’ POSITION

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

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education did not appear for the impartial hearing. Prior to the impartial hearing he Department of Education advised the parent’s attorney that it was conceding Prong I in the case and that it would not be presenting any witnesses (HO Ex. II). Shortly before the impartial hearing the District notified this hearing officer by telephone that it would not send a representative to appear at the impartial hearing. The District did not submit any documents into evidence.

ISSUES TO BE RESOLVED

Whether is appropriate to meet ’s unique special education needs and whether the equities of the case favor the parents.

FINDINGS OF FACT

The Parents’ Case

mother. has a Master’s Degree in general and special education and she is licensed and certified in New York as a special education teacher and a social worker (Wiltshire: 6-7). has a Master’s Degree in early childhood special education and is certified in New York in special education (Carfagna: 20-21).

on many levels.” because it is a very small school and has small classes with two teachers. gets one-on-one attention and the FM system in the school is very beneficial to NB (DB: 45).

DB had NB privately evaluated in May 2011 (Parents’ Ex. H). The evaluator told DB that “there was nothing wrong with” and “classified her as having related services.” DB knew that the evaluation result was not accurate and she asked the Department of Education to conduct its own evaluation (DB: 46-47).

’s parents attended the IEP meeting on June 13, 2013 for the 2013-2014 school year. The participants at the meeting reviewed the Department of Education evaluation and the IEP . The parents were told that more testing would be done and that a placement recommendation would be sent to them for a special class in a community school (DB: 47-49). However, the parents did not receive a school placement and NB remained at McDowell (DB: 48).

Ms. ( : 9-10). The mission of is to educate children with learning disabilities to their highest potential (Wiltshire: 10). The school is ungraded in order to provide flexibility for classroom groupings in that students are placed in classes based on age and social compatibility. Reading and math groups are based on the instructional levels of the students ). provides staff development for the teachers including training in the Orton-Gillingham reading program and in the Teaching Basic Writing Skills program. There are also two full professional development days over the course of the school year on a variety of special education issues (Wiltshire: 9-10).

The school uses the Orton-Gillingham reading approach to teach encoding and decoding to students curricula are used for students who do not make progress with Orton-Gillingham (Wiltshire: 11-12). The school uses specific curricula for math and writing as well (Wiltshire: 12-13). The school provides Progress Reports twice a year and meets with parents in the fall and in the spring (Wiltshire: 15).

During the 2013-2014 school year supervised , ’s head teacher in the Ms. Carfagna supervised the assistant teacher : 13-14; 22-23).^[1] There were seven boys and five girls in the class, including , all between the : 14).

( : 14). NB has delays in all academic areas. She also when working in whole group, small group and individual lessons ( 25-26). NB “struggles” with language processing, attention and stamina and she has weak memory pragmatic language impacts on how she maintains relationships and her ability to independently resolve verbal conflicts : 26 that affect her focus worked closely with the occupational therapist to implement strategies that : 25-26). NB received the related services of language therapy twice a week for 30 minutes, occupational therapy with one other student once a week for 30 minutes and was in a larger group for therapeutic typing once a week, a class conducted by the occupational therapist (Wiltshire: 15-17).

was in a reading group with three other students; her teacher was was in a math group with four other students; her teacher 25).

To address ’s ability to focus she was given preferential seating either next to the teacher or at the front of the class, “very close” to the worked with the occupational therapist to her writing, such as using a slant board and helping her keep her body upright. Sometimes the a stool at a “standing desk,” which kept her “upright and focused.” In addition, the teachers used a lot of visuals and graphic organizers to help NB express her thoughts in ). is also used headphones during independent work to “drown out” external : 31).

When NB arrived in class each day the first activity is “journal time.” During that period the teachers wrote a question for the students in the form of a letter, with the date. had to respond to the question in writing. At the beginning of the school year the teachers had race the date and also the beginning of her response, namely, “ and ,” and sometimes they would give her a sentence starter such as, “This weekend I...” The teachers highlighted to help her stay on the lines and when she wrote a particularly detailed sentence the teachers had her write each word on a separate line, which helped her to not skip any words. had a “personal dictionary” to help her with words she did not know how to spell and would often ask the teachers if she needed help with something. She also had an editing checklist on her desk to help her review her work before showing it to the teachers. She required individual teacher support to keep her focused, discuss what she wanted to write about and to help 28-30).

reading report and her discussions testified that as of June 2014 NB’s encoding and decoding levels were “high or late” first grade. Her comprehension level was mid-first grade, in part because the text she is reading is very controlled based on the spelling that the group has learned so that there are not a lot of comprehension questions that can be asked about the material. the words that she was not focusing on their meaning 34).

math report and her discussions solving using he “modified curriculum for the Faction program : 34).

The class has a social/emotional period once a week. The curriculum for that program helped the students build their social skills and address their “feelings and emotions.” ( 36-37). The students were taught explicit strategies about what to do to make themselves feel better and to help them build ways to problem solve when faced with verbal conflict, including using specific statements such as “When you do this, I feel this way” ( : 37). This program ”s vocabulary in that it gave her more language and words to help her describe how she feeling at any given time. It also the language to use so that she can clearly express her feelings if she has a conflict with a friend or her feelings are hurt. Ms. testified that by the end of the school was beginning to internalize these strategies ( : 38). has friendships with students from her classes in prior years and she is also friendly with students who entered the school during the 2013-2104 school year ( : 38-39).

Ms. opined that her class was appropriate both academically and socially, and she testified progress during the 2013-2014 school year. NB‘s spelling improved during the year, progress that Ms was the “carryover” from the skills she learned with her reading teacher using the Orton-Gillingham program. At the end of the was more comfortable volunteering to read a few sentences from the smartboard during a group activity than she had been at the beginning of the year and she also made progress in that she independently asked for help when she : 31-33).

In addition, Ms. noted overall confidence improved as shown by her ability to answer a question out loud in front of the class, which she did not do at the beginning of the school year. She also showed much progress in writing. At the beginning of the school year write a one or two sentence response in a 30-minute period and she required “a lot of support.” By the end of the school able to do her journal entries more independently and no longer required a sentence starter. Although she continued to need the “reminders,” she was able to write content that pertained to “exactly” the question that was being asked and she was able to more consistently write in complete sentences. NB also progressed in that by the end of the school year she was able to write a paragraph, with support, on a specific animal using a topic sentence and four supporting sentences, something she would not have been able to do at the beginning of the school year : 3031, 40-41). “slow and steady.” While she was responsive to the strategies used it was a slow process due to her struggles with memory (Wiltshire: 17).

Ms. believed in that the school’s environment met her learning needs. For example, the school addressed her weak memory skills by providing repetition of information, breaking down information into small steps and presenting information in a multisensory approach. started to recognize when she needs support and advocate for herself (Wiltshire: 17-18).

“definitely” benefitted from her for the 2013-2014 school year. progress during the 2013-2104 school year, noting that NB’s confidence level had increased as all of her skills improved. In particular, to read (DB: 45). DB also noted benefitted from having two teachers because she requires “so much special one-one-one attention” (DB:

50).

CONCLUSIONS OF LAW AND DISCUSSION

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

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

To begin, I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. I.

The Department of Education was aware of the date and time of the impartial hearing but did not appear and did not present any evidence into the record. The Department of Education representative advised the parents attorney prior to the hearing date that it would be conceding Prong I. Thus, I find that the Department of Education failed to demonstrate that it a FAPE for the 2013-2014 school year. II.

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

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

The testimony and the evidence showed was an appropriate placement for NB for the 2013-2014 school year. As related in detail in the Findings of Fact above, the testimony , a certified special education teacher, and by the director of elementary school, demonstrated that the program was reasonably calculated to provide NB with educational benefits and that it did so.

NB was in a small homeroom class of only twelve students, two teachers, Ms. ,” the assistant teacher, both of whom are New York State certified in special education. For reading and math, the subjects in significantly below grade level, she was one of only four students in her reading group and one of five students in her math group, thereby enabling the teacher to significant attention. s classroom teachers repeating information, breaking down information into small steps and presenting information in a multisensory approach.

Ms. Ms. explained rogress during the 2013-2014 school year. Specifically, the witnesses testified that made progress in writing, both in writing more independently and more consistently in that by the end of the school year with support she was able to write multiple complete sentences on a specific topic, skills she did not have when the school year began. The testimony also showed that her spelling skills improved as a result of the carryover from her reading group. In addition, both attested to the increase in self-confidence as her skills improved. Specifically by the end of the school year was volunteering to read from the smartboard and answer questions aloud. noted that progressed in the she is now beginning to read. The evidence also showed that by the end of the school to recognize when she needs support and to advocate for herself.

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

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

The evidence showed that the parents participated in the IEP meeting held on June 13, 2013 and that they made for an evaluation by a Department of Education psychologist. There was no testimony or evidence to support a finding that the parents in any way failed to cooperate with the Department of Education throughout the IEP and placement process and I conclude that the equities of the case support the parents. * * *

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

ORDER

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

a) Within 30 days of receiving a copy of the tuition contract for the 2013- 2014 school year , proof of payment by the parents and proof attendance, the District is reimburse the parents for the amount of tuition not to exceed

$51,390.00 minus the fee for the Parent Association Dues and any late fees that may have been assessed.

Dated: August 4, 2014 Rona Feinberg mv

RONA FEINBERG, ESQ.

Impartial Hearing Officer RF;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of 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

Department of Education:

The Department of Education did not submit any exhibits into evidence.

Parents:

Exhibit A Notice and Request for

Transportation dated August 23,

2013, 2 pages

Exhibit B Impartial Hearing Request dated

February 20, 2014, 4 pages

Exhibit C School Affidavit, 2013-2014, 1 page

Exhibit D School Contract, 2013-2014, 2 pages

Exhibit E School Class Schedule, 2013-2014, 1

page

Exhibit F School Attendance Record, 2013-

2014, 1 page

Exhibit G Mid-Year Report, 2013-2014, 19

pages

Exhibit H Evaluation dated April 29, 2013, 7

pages

Impartial Hearing Officer:

Exhibit I Case Follow Up sheets indicating

extensions of the timeline, various

dates, 3 pages

Exhibit II Email from Parents’ Attorney re:

Department of Education Conceding

Prong I, 1 page

Footnotes

[1] The assistant teacher has a Master’s Degree in early childhood special education and is state certified in special education (Carfagna: 41-42).