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: February 4, 2014

April 9, 2014

Actual Record Closed Date: June 29, 2014

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2014

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2014

Attorney — Parents

Mother Co-Director/ — Parents

Teacher/ — Parents

Dept. Designee — DOE

INTRODUCTION

On the above dates, I conducted hearings, 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 #143862. 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 attorney on October 31, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee and the parent was represented by their attorney,

BACKGROUND

The student is currently a . On April 26, 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 “ CSE team classified the child as stated above, and recommended placement in a class in a community school and (1) time per week for thirty minutes individually and (1) time for thirty minutes in a group of three. Additionally, the CSE stated that the student would participate in state and district-wide assessments with standard promotional criteria.

THE DEPARTMENT’S POSITION

The DOE conceded: Prong I of the Burlington/Carter test. The Department Designee stated that the parent has not met the requirements for Prong II & III of the Burlington/Carter test and accordingly, the Department should not be responsible for reimbursement in this matter.

THE PARENT’S POSITION

Parent’s counsel maintained that the Department has agreed to concede Prong I and that with respect to Prongs II and III, that the was an appropriate placement for the child. More particularly, the child struggles with disorder and the deficits impact him across all and require significant educational support. In order for the child to meet his academic needs, he requires a small structured class with full-time special education support and a high teacher to student ratio. The with structured support in classes with approximately 11 students, 2 teachers and a structured/nurturing environment.

Lastly, it is the parent’s position that there are no equitable considerations to prevent the parent from being awarded reimbursement for the cost of School for the 2013/2014 school year.

THE DEPARTMENT’S CASE

As stated above, the Department has conceded Prong I of the Burlington/Carter test and did not present witnesses or evidence.

THE PARENT’S CASE

The first witness to testify after being duly sworn was stated that she is the CoDirector of the . She maintains a Bachelor’s Degree in Psychology from Stony Brook and a Master’s Degree in Special Education from Hunter College. Additionally, she is a New York State Licensed Certified Special Education Teacher in Grades Kindergarten through six. She is currently employed at the Stephen Gaynor School as a Co-Director and has been in that position for approximately 7 years (T. 15). Her duties as Co-Director include supervising teachers, observing students and working with parents to help develop and modify curriculum for each child; additionally she administers educational evaluations as part of the admission process (T. 16). Upon further questioning of the witness, she stated that there are 327 students in the school, ranging in ages from 3 years through 14 years old. She described the population as consisting of “bright children who generally have . . .with varied with ”

(T. 17).

The witness stated that the philosophy is to provide an individualized education for bright students who require a small class in a modified curriculum. The goal is to help children gain confidence, which they need to learn, grow and reach their full potential. (T. 18) Additionally, related services ; the school also has two Psychologists on staff.

Ms. Stern testified that the school utilizes a team-based approach and consider outside evaluations. She described as “a fluid service model, where the amount of services and the method of services provided can change, depending on the specific child’s needs…”. (T. 19)

Ms. stated that the school offers professional development for 2 weeks in the summer for all teaching staff. Different areas of reading, including Orton-Gillingham, Singapore Math, Stern Structural Arithmetic and presented for different types of student learners. (T. 20). Professional development allows the teachers to continue to develop their skills and knowledge and to gain practical experience.

The witness stated that she knows and took part in his intake interview in February, 2012 and supervised his class last year. (T. 21) Documentation was reviewed including a neuropsychological evaluation, initial application package, etc. She observed him in the classroom including homeroom, reading groups, math groups, art and music which are part “of the ongoing assessment process”. (T. 22). She described the child’s strengths including a “really positive attitude and wonderful work ethic”. Furthermore, she stated he was a good artist and naturally organized with good time management skills. His weaknesses include “a very slow processing speed”. Additionally, he had significant receptive . (T. 23)

Ms. stated that the child’s Head Teacher is Ms. and that she has her Master’s Degree in Special Education and Elementary Education from New York University. Additionally, there is an Assistant Teacher, a part-time Student Teacher, and a Speech and Language Therapist who works three times per week. The Assistant Teacher is Ms. Solomon, who currently attends Bank Street to complete studies to obtain her Master’s Degree in Special Education.

Ms. stated that there are 11 children in s class and that in homeroom, students are grouped by age as well as “ needs”. The small classroom is essential for the child in order for him to progress and grow as he requires small group instruction and support.

(T. 25)

The witness stated that in the current school year, the child receives speech and language therapy 1 time per week in a group of 3 and also in a whole group during literacy 2 times per week and individually once a week. He ; for information needs to be broken down, repeated with . Expressively the child is and related strategies including vocabulary development. (T. 27). In her opinion, the child was making progress in and she believes that was an appropriate placement. She opined was not confident at the beginning of the school year in September, was shy and timid; currently he is comfortable and confident in the classroom and has become T. 28) He has achieved success academically and is currently at an level. (T. 28)

On cross-examination of this witness, she stated that a curriculum is drafted for each student and modified to meet the child’s individual needs.

The next witness to testify . She maintains a Bachelor of Arts in Sociology from George Washington University and has a Master’s Degree in Special Education and Elementary Education from New York University. She is also State Certified in Elementary and Special Education Grades 1 through 6. She is currently the Head Teacher at and has been in that position for 2 years. Prior to being employed at the she was a teacher in Special Education in an ICT class for the DOE.

She stated that her responsibilities include planning and the execution of instruction and curriculum. She keeps an open line of communication with her supervisors, parents and performs ongoing assessments of the student’s progress and needs. (T. 33) Ms. testified is a child in her class and at the beginning of the year she reviewed evaluation, his most recent IEP, progress reports from the prior year and spoke to various teachers that taught him in the past. There is a formal math assessment in the beginning of the year to determine his needs. (T. 34) and weekly quizzes, classroom participation and homework to provide information as to how the child is performing.

The witness described stating that he is very positive and “open-minded” with a great work ethic. His deficits. “For his , he needs concepts to be broken down into very small chunks, constantly repeated”. Additionally, the child is provided with multi-step directions which are broken down and repeated. (T. 35).

With respect to the child’s deficits, he receives services at the including speech and language services once a week in a group of three. The therapist pushes into the classroom during literacy and services are also provided once a week in a language class and “these services are provided both as a push-in and pull-out model”. (T. 37).

Ms. stated that needs impact him in the classroom very much . . . “His word retrieval issues can be extremely hindering to his ability to express himself. . . he’ll use vocabulary words in the wrong context . .”. He requires a lot of phonemic cues and repetition and also needs time to say what he wants in order to get his thoughts out. (T. 37). Ms. Stein is in daily contact with and collaborates in order to implement successful strategies which are utilized in the classroom. (T. 38).

The witness stated that the child has made a lot of progress in the present school year and is willing to take risks and participate in a whole class discussion. Ms. Stein stated there are 11 children in the child’s class with ages ranging from 9 to 10 years old. There’s an Assistant Teacher in the classroom to provide additional support; she teaches in small groups and if necessary, provides 1:1 instruction. (T. 40). She stated that all the children are bright with , etc. She also stated the students function at a similar level to and there are also periods during the day wherein the child is in a smaller class for both reading and math. The reading group has 7 students with a reading teacher and a language specialist who pushes in twice a week to support his language needs. (T. 41). The child’s groupings are determined both informally and through formal assessments, is ongoing and “very fluid”. (T. 42).

With respect subjects, he was stated to struggle with decoding; however, has made a lot of progress since the beginning of the school year. He also has difficulty with comprehension, fluency and sentence structure. She described the school’s program as being based on the Orton-Gillingham Method, however, a specific curriculum is based on the group’s needs. She also described the program as it relates to this child as a multisensory program; it provides the child with direct instruction, frequent repetition and a multi-mode of presentation. (T. 43).

Ms. stated that there are specific reading goals that the child is working on during the current school year which centers around improving fluency, reading appropriately, reading with author intended expression, and to increase comprehension.

(T. 44). She stated that he has made progress in reading phrases rather than word for word; additionally, his expression is improved. (T. 45). She stated level in reading was the beginning of the school year and that he was currently at a level. As stated above, progress was measured both with formal as well as informal assessments wherein he reads aloud every day. Additionally, his homework and independent work are all considered. (T. 46)

Ms. also opined that the his ability to solidify his facts and that his visual perception skills and tracking difficulties make it problematic for him to track numbers and to line up numbers correctly in performing math tasks. She stated that the school has provided a combination of Stern and Singapore Math made a lot of progress since the beginning of the school year. He is approaching mastery of basic addition and subtraction and is currently focusing on multiplication and division. (T. 50). Progress in math is also measured informally and formally through assessments, homework, and classwork. (T. 51). She stated at the beginning of the school year his math skill was at an early level and he is currently approaching level. With respect to writing goals, is focusing on both sentence structure and paragraph structure. She stated that in the beginning of the school year he was writing very simple sentences and is currently able to write more complex sentences using conjunctions and transition words, etc. (T. 55). He is also working on basic paragraph writing and attention is paid to writing a cohesive paragraph with a topic sentence and relevant details.

Ms testified that at the beginning of the school and currently is comfortable in the classroom and has made a lot of friends; he initiates interactions with other students.

(T. 58). She attributes part of the success to the small groups for reading and math which promote his social skills. Additionally, there are classroom conversations which create a classroom community. The witness summarized the child’s progress academically by stating that he has made strides and is currently performing at a 4th grade level in reading and that his decoding has improved. Additionally, his comprehension has improved wherein he is able to use different modes of presentation; math skills were also significantly improved.

In summation, the witness stated provides progress reports and that in her opinion, a small class size is crucial for this child which provides a structured environment with nurturing at the same time.

On cross-examination of the witness, Ms. stated that the child has an understanding of temporal concepts and has made improvement in this area. More particularly, each morning he is able to relate to the current day, yesterday and/or tomorrow.

The last witness to testify was the child’s mother, hereinafter referred to who described her polite. She stated that and “can’t remember things sometimes; he gets easily confused with instruction”. (T. 64). The witness recalled her child’s IEP meeting on April 26, 2013 and stated that she participated. She reported to the CSE team that her son requires a really small classroom with two teachers. Her recollection was that her son’s former teachers provided similar requires a small class with qualified teachers wherein he is sometimes taken out into break-out rooms to work on specific tasks. (T. 66). The witness stated that when she left the IEP meeting, she believed the recommendation was going to be for a Special Education School; however, was surprised to receive mail wherein a community school with a ratio was recommended.

(T. 67).

The parent stated that in the summer of 2013, she received a recommendation to place her son at P.S. 198. She wrote a letter in order to visit the school and was told that the school was closed; therefore, she proceeded to enroll her child at (T. 68). This was directed to Parent’s Exhibit D and identified it as her letter at the School District.

The parent further stated that she called the recommended placement on the first day of school and was told that “they don’t offer that class there, that they just offer a bridge class, and that it was full . . . She reiterated that after she was provided with the information that a class was not available, she wrote another letter to the school district stating that there was no place for her child. (Exhibit “E” T. 71).

The witness was directed to the Gaynor Tuition Contract wherein it was noted that the deadline to hold a place for her son was February 28th, 2013; however, that there was a clause that if she decided to enroll her child in a public school there would be no further obligations to and that is why she signed the contract. (T. 72). She stated the tuition for the Gaynor School for the 2013-2014 school year was $52,100.

The parent stated that her son is “ and described the programs being worked upon with her son in reading and math. She stated that it and that he is making progress, albeit slowly. (T. 75). She stated that he gets small classes with break-out groups wherein he is able to go over work until he understands it. She concluded by stating that her child was making progress and that he is receiving an appropriate education at .

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C.section 1400~1482) ensure-that students with disabilities have available to them a free and appropriate public education (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 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20 U.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-Foru 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) (Buriingto~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.-Cumbetland 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 address 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 o 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.

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 Ms. (2) that the Parents have met their burden in proving that the that they have unilaterally chosen . The testimony from witnesses from Stephen Gaynor School provided detailed information about the school and the testimony was credible regarding the educational services provided 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 non compliance 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 $52,100.00 for tuition at . Dated: July 14, 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 Impartial Hearing Request 10/31/13 2

B IEP 4/26/13 20

C FNR 7/26/13 1

D Parent’s Letter 8/22/13 3 E Parent’s Letter 9/16/13 3 F Enrollment Contract 2/26/13 4 G Class Schedule 2013-14 1 H Affidavit of Payment 2/6/14 1 I Student attendance Record 2013-14 1

DEPARTMENT’’S EVIDENCE

None