New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 14, 2014

Actual Record Closed Date: July 30, 2014

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2014

Attorney — Parents

Mother Administrator/ School — Parents

Teacher/ School — Parents

Dept. Designee — DOE

INTRODUCTION

On the above date, I conducted hearing, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #148115. The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing through their educational advocate on October 21, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee, the parent was represented by their attorney, .

BACKGROUND

The student is currently a old male who is classified as “ On April 4, 2013, the Committee on Special Education (CSE) met to discuss the educational needs in order to develop an individual educational program, (IEP) for the child, hereinafter referred to as “ The CSE team classified the child as stated above, and recommended placement in special class , with in a group of five (2) times per week for forty minutes in a separate location.

THE DEPARTMENT’S POSITION

The DOE maintained that although they have not presented witnesses, they are relying on their IEP that was created on April 4, 2013 and the final notice of recommendation (FNR) that was provided to the parent in July, 2013 to establish that it offered a free and appropriate public education (FAPE) to the child.

THE PARENT’S POSITION

Parent maintained that the CSE convened on April 4, 2013 and prepared an IEP for which was procedurally and substantively flawed and invalid. Additionally, parent’s counsel maintained the CSE team was improperly constituted and that the goals were “too generalized, immeasurable, and inadequate for the child’s particular learning disability.

Additionally, it was stated that the parents had no alternative but to unilaterally place the child in a private school, , hereinafter referred to as , wherein the child receives individual and/or small group support. Lastly, parent maintains that they were active participants and cooperated with the CSE and that there are no equitable considerations to part of this claim.

THE DEPARTMENT’S CASE

As stated above, the DOE did not concede Prong I of the Burlington/Carter test, however, did not present witnesses.

THE PARENT’S CASE

Ms. , after being duly sworn, stated that she began working as an Assistant Teacher and then became a head teacher. She is currently the Assistant Director at and her duties and responsibilities include working with the faculty to support students, professional development supervision and observation of students in the classroom (TR Page 11). Ms. stated that there are 109 students in the school and that they all have IEP’s. The children have a expressive language issues, auditory processing issues, Page 11). Ms. stated for students with learning disabilities and provides small classrooms to address the students’ needs including college prep. There is also Quaker history and practice for 10th graders which is essentially a history lesson and also addresses thoughts regarding ethics, peace, equality, etc. (TR Page 12).

The witness stated the classroom setting provides a multi-modal instruction which is modified at a pace for the students to absorb concepts (TR Page 13). The witness reviewed Exhibit “F” and stated that she is familiar and that he was a senior at Mary to be graduating during the current school year. She was directed to Parent’s Exhibit “F” and described his classroom schedule including International Relations in a 6:1 environment, ; Tech Music in a larger class with Astronomy and Integrated Algebra in a (TR Page 14).

Ms. is a student that likes to learn, particularly in the sciences. He support and redirection to keep him on track (TR Page 15). Evaluations are conducted via “Teacher Made Test” and classroom work; the scores in PSAT’s are also considered. also took a Regents exam in History. Based on her observation in the classroom, she believed that the child’s educational needs were being met (TR Page 16).

On further questioning of the witness, she was told that DM was recommended for placement in a public school with 700 students and stated that she had worked in a general education setting with 300+ students in one building and observed students struggle with needs (TR Page 19). She reiterated , much support to stay on track and generally “needs a good deal of support in order to absorb the content of the class” (TR Page 19).

On cross-examination, the witness described the education of the staff at Mary McDowell as follows: English instruction with who maintains a Bachelor’s Degree in English and a Master’s Degree in Education from the state of Pennsylvania. For Math, has a Doctoral Degree in Math Education from Oxford University in England but does not hold certifications in the New York has a Master’s in Special Education. Ms. Sue Turner, the History teacher, has a Bachelor’s in Business Management and a Master’s in Differentiated Instruction and is not certified to teach in New York (TR Page 21-22).

Ms. in a larger size setting than his current class composition, particularly on school trips. She stated that he needs redirection and that “you need to keep an eye on him”. He (TR Page 21).

Ms further stated in his current schedule to prepare him to move on; introducing him to what kind of colleges he would like to attend, interviewing skills, student’s life, etc. (TR Page 24). Upon re-direct examination, the witness stated that the school is not required to have teachers that are New York State certified (TR Page 26).

The next witness to testify He is the Head Teacher for Biology and Environmental Science and is an Advisor. As an Advisor, he is responsible for 5 students and his job is to check on them in order to see how they are doing academically, generally and socially. He usually meets with the students 2 times per day to make sure that they are enjoying their time at school and to ascertain if there are questions or needs (TR Page 30).

Mr. and had taught him in the previous school year in Biology in a class of 13 students and 2 teachers. As an Advisor he has the opportunity to in a classroom environment including Science and English wherein the sizes are typically 7 students to 1 teacher (TR Page 31). The witness further stated that Mary McDowell does require some standardized testing and had taken the SAT and Regents exam.

In the witness stated that he is diagnosed in class, particularly maintaining focus. Additionally, he has writing as he is . He has executive turning in homework or remembering to print out assignments (TR Page 32); in terms of functioning, the other students in the classroom were

Mr. testified that being in a small class; students are able to be provided with scaffolded assignments to help them focus in on relevant material. case with writing assignments, he receives outlines, word banks, prompts, and sentence starters, all to help him complete writing assignments. He also gets preferential seating to minimize distraction and he receives support with the guidance to complete assignments (TR Page 33). Additionally receives Text to Speech Software and a laptop for typing and for reading assignments and he checks in on him in order to guide him through the assignments (TR Page 34).

The witness stated curriculum is modified as he will be given a topic, receive outlines and supports with word prompts; he also receives instructions on how to complete assignments with deadlines and to maintain a good pace. The witness also testified that in teaching he used a multi-sensory teaching method which has worked well for him (TR Page 35).

Mr. testified would not do well in a school with over 700 students. He stated that a class size of 15:1 would not be as he requires the supports as previously described including a small class in order to get the accommodations (TR Page 36). Mr. has made growth and progress during the current school year and expects that he will graduate during the current school year.

On cross-examination of the witness, he stated that he researched his information and utilizes his personal experience in order to interested in to help him engage with the content; when designing the curriculum, might require regular breaks and with homework assignments, they may require modification so that he could complete the assignment (TR Page 38). He also testified that the IEP with useful information regarding the child’s academic strengths and weaknesses. He had difficulty in writing, vocabulary and with all skills. He stated that the school has push-ins, speech and language services; however, he was uncertain if he the witness stated that and more complex problems (TR Page 40). He believed in the present school year and avails himself of supports such as a calculator (TR Page 40).

Upon further examination of the witness stated that the difference between the recommended 15:1 classroom in a program and class which DM was in last year, is that there was a Teacher and an Assistant Teacher in his room (TR Page 41).

Mr. stated that in his opinion, the child has made meaningful educational progress with the supports in place and that he has been improving in writing, answering questions and making strides to become more independent; he is passing all of his classes (TR Page 43). in 12th grade and that in English he is reading both 11th and 12th grade texts. In Math he is taking Algebra-II which would be equivalent to a 10th or 11th grade level; he is averaging a in those classes.

The last witness to testify was the parent, hereinafter After being duly sworn she stated that her son has been suffering with learning disabilities and was . She stated that he tried to learn strategies to cope with which requires much support; he is very (TR Page 47).

The parent stated that there was ongoing communication with the Teachers at and that her observations are that her child “feels good about himself” and described the school as “learning disability heaven” (TR Page 49). She stated that he felt comfortable, nurtured and that all of his peers had similar needs.

The parent visited the Life Science Secondary School which was the recommended placement on 96th Street in New York City. She was directed to Exhibit L and stated that she visited the school in October of 2013 and believed that it would have been “a little bit intimidating” (TR Page 50). She observed the class wherein she noted that the teacher having a disagreement with a parent. She also noted , the school would be intimidating, very large and not suitable.

The witness stated that during his senior has provided her son with a lot of support academically. If he requires extra help he would stay after school and would get assistance to finish his work (TR Page 53).

Upon further questioning of the witness, she stated that if the DOE had offered a public school placement which was appropriate that she would send her child there (TR Page 54). She believed that there was an escape clause in the contract so that if she visited the public school and was satisfied with the placement, she would not be obligated for her child to attend

The parent testified that her son was accepted to several colleges including Alford, Cobble Hill and Canton (TR Page 55). She was also under the impression that her son would be graduating in June of 2014 and that he planned to attend college. In her opinion, her son received meaningful educational . They provided him with appropriate accommodations and taught him strategies to apply in his educational life (TR Page 56).

Lastly, the witness was directed to Exhibit “H” and stated that she paid for tuition in full for the current school year.

On cross-examination of the witness, she did not recall the name of all of the attendees at the CSE meeting. She remembered herself and a couple of other people. Ms. participated by phone on behalf of (TR Page 59). She stated that she had the opportunity to participate, was asked questions, and tried to process all the information presented. At the time of the meeting, she did not formulate an opinion about the 15:1 recommendation as she had not yet visited it (TR Page 60).

Upon further questioning, the parent stated that she did not bring the IEP or transcripts to the Life Science Secondary School. The Principal gave her a brief tour of the school; she did not recall speaking to the Principal about graduation requirements (TR Page 62). The witness stated that she visited the classroom for 3-4 minutes and did not recall exactly how many students were in the classroom.

In describing her , she stated that he has a lot of (TR Page 63). He has to be provided with instruction in small amounts and then if he is presented with a lot of information, he will just give up (TR Page 64). To the best of the witness’ recollection, she was aware that her son was recommended for and believed that he was not receiving (TR Page 66).

The witness was directed to Exhibit “K-1” which was her letter rejecting the placement on August 22, 2013. She sent a letter as she was unable to visit with the school during the summer. She recalled receiving a letter with the recommended placement in July, 2013, stated she called the school, however no one picked up.

Lastly, she believed that the class was large and that she scanned the room visually and believed there were more than 13 students in the room. She was told that there would be a seat for her son.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C.sections 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v,Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd' ; - FR Section 200-347. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5]a; CFR section 300.13 [a] [2][i], .200. 1.116 [a][2]; 8 NYCRR 200.6 [a][IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent's claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence ,County Sch. Dist-Four v. Carter, 510U.S;7 [1993]; Cerra v. Pawling Center. School Dist. 427:F. 3d 186, 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 developed a proper IEP.

Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 9334; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were "proper under the act", (IDEA) (Burlington~47-l U.S. at 370) i.e. that the private school-offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent's private placement is that it is “appropriate” not that it is-perfect (M.S. v Bd. Of Educ. 231 F. 3d 96, lQ5 [2d Cir. 2000] cert. denied 532 U.S. 9422001. The private school need not employ certified special education teachers, nor have its own IEP for the student.

The final criterion for an award of tuition reimbursement is that the petitioners' claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F. .Supp. 2d 402; 4]6 [S.D.N.Y. 2005] affd2006 W]. 23341.2d cir, 2096); Frank G.-.459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C: v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts 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 non-compliance 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. Dept, of Educ. 736 F.-2ds at773, 801.-02[1st Cir...1984] aff';l471U.S 359 [1985]; with respect to equitable considerations, tuition 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 fining of unreasonableness with respect other-action taken by the parents 20 D.S.C. section 1412 (a)(lO)(C)(iii) Warren G. v.-Cumberland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such 'notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a) (C) (iv) (I) (cc) (II) (bb)"

Parents maintain that the Department failed to offer a FAPE that was "reasonably calculated to meaningfully unique and individual needs, that the unilateral placement of amply conformed to the second circuit’s “reasonably calculated” test for Prong II and that there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III). Accordingly the Parents maintain that for the 2013-2014 they met the recognized test for Burlington/Carter reimbursement relief.

A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised of full evaluations an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer, 34 C.F.R. section 300.110.

The Department Designee maintained that although the District has not presented witnesses, they are relying on the fact that the IEP created on August 4, 2013 and the Final Notice of Recommendation were appropriate. She believed that all the team members that were required to be present were in fact present and that the goals created for DM were discussed.

The DOE further stated that with respect to Prong II, of the Burlington/Carter test, the school’s witnesses were unable to describe his progress in any quantifiable way and that the Teacher could not provide independent levels regarding the child’s progress. Lastly, the DOE maintained that the Parent did not bring the child’s IEP to the school in order to have a meaningful discussion with the staff members about her son’s needs. Furthermore, although the parent stated that her child would not do well in a large classroom, the parent was unable to state with certainty how many children were in the classroom.

Parent’s counsel maintained that the IEP recommended classroom and that the witnesses all agreed that a who is diagnosed with . Additionally, Parent maintains that they notified the DOE upon receipt of the Final Notice of Recommendation, tried to contact the school and due to the school not being opened during the summer time, she visited the Life Science Secondary School after the summer. Additionally, parent’s counsel maintained that the parent stated unequivocally she would be open to a public school placement had an appropriate place been offered.

Parent’s counsel stated that it is undisputed that the school was large and that a recommendation of was made. Furthermore, the child’s Advisor, Teacher and parent all stated that a 15:1 class is too large for the child would not do well and/or regress. Furthermore, it is undisputed that the child made progress and had been accepted to several colleges. Counsel progressed every year and that there was no doubt was an appropriate placement.

Lastly, counsel maintained that there were no equitable considerations that would bar an award for tuition reimbursement.

I will not repeat the details of evidence where but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all of the witnesses who testified at the .hearing. With respect to the issues presented at the-hearing, I make the following findings of fact: (1) that the Department failed to provide a FAPE for the reason as stated above by Mr ) that the Parents have met their burden in proving that the school ) that they have unilaterally chosen is appropriate. The testimony from witnesses from provided detailed information about the school and the testimony was credible regarding the educational services provided and explained how the services meet his identified needs. The Parents have established that the implemented educational program was appropriate and that the child is making meaningful educational progress as stated more particularly above. (3) Equitable considerations for the fact finder to consider in determining whether reimbursement and-related relief is appropriate "include the parties" compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability Appeal NO.05: 9~7 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp. 2d 530,533 (N.DE.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773, 801-02 (1st Ci9r. 1984) aff'd 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See supra, Appeal No. 05-087 (referencing Application of the-Board of Edu. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-Q49).

Accordingly, the DOE is directed to reimburse the Parent in the sum of $51,390.00 for the Dated: August 1, 2014

Gary Peters mv

GARY D. PETERS, ESQ.

IMPARTIAL HEARING OFFICER

GP;mv

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date PAGES A Parent’s IHR 10/21/2013 3

B IEP 04/04/2013 13

C FNR 07/24/2013 1

E School Program N/A 3

Description F Class Schedule 02/26/2014 1 G Attendance Record 04/02/2014 1 H School Affidavit 01/15/2014 1 I Parents’ Payments N/A 3 J Summer School Not 07/30/2013 2 In Session Letter K Notice Letter 08/22/2013 1 L Rejection Letter 10/04/2013 5 M Comprehensive Psycho 06/20, 25-8/15- 25

Educational Evaluation 10/07/2011 N Eval. 05/01/2011 4

DEPARTMENT’S EVIDENCE

None