Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: March 5, 2014

May 15, 2014

Actual Record Closed Date: June 9, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2014

Advocate — Parents

Mother Deparent of Education Deparent of Education Deparent of Education — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2014

Advocate — Parents

Advocate — Parents

Mother Deparent of Education Deparent of Education — Parents

On March 5, 2014 and May 15, 2014, I conducted an Impartial Hearing at the New York City Deparent of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated October 30, 2013. I was appointed Impartial Hearing Officer on November 1, 2013 and I was available to conduct a hearing within 14 days of appoinent. At a telephone conference with the parties conducted on December 6, 2013, the initial hearing was scheduled for March 5, 2014, the first mutually available date for the parties, their witnesses and the hearing office. (T. 89, Exs. A, I)

Subsequent to my appoinent, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and my consideration of the record. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were given to the parties. (T. 90, 96-97, 228, Ex. II)

The current compliance date is July 12, 2014. The record closed on June 9, 2014, upon my receipt of the final transcript.

Background1

The student was at the beginning of the 2012-2013 school year (

Positions of the Parties

In her hearing request, the parent asserted that the IEP was procedurally and substantively defective and that therefore a FAPE was denied. Specifically, the parent asserted that there was no parent member, inadequate specification of achievement and performance through among other things would meet the student’s needs. No claims concerning the specific placement recommended were made. The parent asserted that was appropriate for this student and that there were no equitable considerations that warranted limitation or denial of DOE funding. The parent sought reimbursement and/or direct funding. (Ex. A; see also T. 219-222)

The DOE asserts that the IEP was procedurally and substantively appropriate. It notes that the parent testified that she had no objection to the . Further, the DOE claims it provided a placement that could implement the IEP. With regard to the unilateral placement, the DOE asserts that it is too restrictive in view of this student’s functioning levels, or significant post-secondary education, that a very substantial part of the program is in subjects of a religious and cultural nature and that there is limited evidence of courses with specific significant secular nature. Further, the DOE asserts that the parent is not indebted to the school as claimed, that she was not genuinely interested in considering a public education and that claim for addition to tuition provided is not appropriate and, further, is billed at an excessive rate. (T. 222-228)

Cases Presented

A list of documents entered into evidence is appended.

The DOE presented the testimony of:

CSE Teacher

The testimony of the CSE teacher includes the following:

She participated in the May 3, 2012 review but did not recall it and her testimony was based upon review of the IEP and her procedures generally. (T. 60, 62, 64, 75) Based upon her review of the IEP she stated that participants were: There was no “parent member” probably because there was none available. (T. 80-81) provided. (T.

89) The CSE teacher stated the classification was not relevant where the IEP provided

The contests of this section is included herein as Findings of Fact. what the student needed and she recalled no discussion about changing the classification and had no knowledge with regard to why it was not changed. (T. 68, 77, 81-82)

Based upon the IEP she understood the student’s needs to arise from her being very very nervous which would affect her participation in class. (T. 69)

The CSE teacher did not know when the IEP was finalized but the IEP is usually created shortly after the review. (T. 72)

Principal

The testimony of the principal included the following:

The student received during the 2012-2013 school year and the parent spoke with the (T. 196) She received an diploma and the parent believed that she progressed at .

(T. 196-197)

The parent called the recommended school in September for an appoinent but had difficulty getting through to it and never visited the school. (T. 199-200) She was willing to consider a public school. (T. 200, 202)

The parent paid approximately $9000 in tuition and considers the remainder an obligation. (T. T.195-196) She did not recall when she executed the contract or made the decision to send the student stated that the fact that the first payment was made in May 2012 indicated that that was when the contract was executed (T. 200-201, 2011) Pursuant to what she testified was common practice with , she executed post-dated checks which she believed would have been returned or refunded if a public school had been accepted notwithstanding contractual provisions that refunds for the period attended would not be made. (T. 211-212, 215-216, Ex. H)

Findings of Fact and Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Deparent of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

Prong 1 An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9). While school districts are required to comply with all Individuals with Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In this matter the parent claims that the IEP is substantively and procedurally defective.

The sole DOE witness with regard to the IEP was the CSE teacher. I find her testimony (set forth above with citations to the record) credible in that her testimony as to her recollections and opinions was accurate. However, I find that the DOE has failed to establish that the program recommended was substantively appropriate.

With regard to the program developed, the evidence does not indicate that any of the DOE team members knew this student. Further, no observation of the student had been done for the review by the DOE. The most recent and the CSE teacher was unable to explain why an updated one had not been conducted or to opine concerning the contents of the prior one other than the material included in the IEP based solely upon a written progress report prepared by her teacher, parental input and the oral report of the principal who participated at the meeting and who the CSE teacher acknowledged knew students well as well as parental input. However, the teacher report recommended continuation of the student’s then current program of significantly credibly testified that they had clearly stated their disagreement with the CSE recommendation. Further, the CSE was aware that the student

It is the DOE’s burden to establish that the recommended program was supported by sufficient . See 8 NYCRR 200.4[b][4][5][6] “ § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. In the instant matter, the material considered does not support the CSE’s recommendation.

I conclude that the DOE has failed to establish that the program it recommended was reasonably calculated to enable this student to make meaningful educational gains and therefore has failed to establish it provided a FAPE. Accordingly, I do not address the parent’s other claims with regard to the review and the IEP. With regard to the placement, I note that specific claims regarding the placement have not been made by the parent and I therefore do not address that issue except to note that I find the testimony of the AP credible.

Prong 2

When a public school system has failed to provide a FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with . Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find the testimony of the principal credible in that it accurately reflected his recollection and opinions. However, I find that the parent has failed to meet her burden to establish that that the program unilaterally provided was appropriate.

It is established that not every teacher in a parentally selected placement is required to have special education credentials. However, in this matter the evidence does not show the and does not show that any of the student’s instructors have any Such evidence as has been presented with regard to indicates that special education, indeed education issues in general, was only a small part of that program which at most is two years but may be substantially less. Further, there was no testimony presented to support any conclusion as to the required for completion of such programs, all of which were unidentified and many not in the United States. Moreover, there was no testimony as to any training provided at or as to the particular work experience and post training of any of the student’s teachers with regard to special education issues. I conclude that the principal’s lack of confidence in the relevance of nationally accepted teaching credentials was sincere. However, the issue here is the qualifications of ’s staff and the evidence is insufficient to establish its adequacy.

The principal testified as to a highly individualized program created for this student based upon his conclusion as to . However, there is no documentary evidence whatever in the record with regard to the contents of that program or nature of the communications concerning the student’s difficulties or accomplishments. The student’s report card is a summary document which, I conclude, provides no information relevant to this issue. (Ex. F) I also note that the school does not conduct standardized assessments. In these circumstances, the reliability of the principal’s determinations as to the student’s skills and needs has not been established.

With regard to claims of progress, I note that there is no documentary evidence in the record supporting that and demonstrating the degree of progress. To the extent that successful completion of demonstrates that some progress occurred, I note that progress in a private school does not suffice to demonstrate that a placement is appropriate and that the DOE is required to fund it but rather is only one factor for consideration. Gagliardo, 489 F. 3d at 115.

Based upon the foregoing, I have concluded that the parent has not met her burden to demonstrate that the program she selected was appropriate. Accordingly, I do not consider what portion of the program is appropriately considered as religious or sectarian and therefore not permissible for public funding. I note, however, with regard to the DOE’s claim that the cost of the service is excessive, that no evidence supporting a claim that the provider’s rate was not excessive has been submitted.

Prong 3

In view of the foregoing findings, I do not address Prong 3.

Order

This matter is DISMISSED

Dated: June 25, 2014

Judith Schneider, Esq. gc

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Deparent under section 4404 of the Education Law and the Individuals with Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.hl.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 5/3/2012, 12 pgs. Deparent of Education

2 FNR, 8/3/12, 1 pg. Deparent of Education

3 , undated, 2 pgs. Deparent of Education

A Impartial Hearing Request, 10/30/13, 5 pgs. Parent

B Program Description, undated, 1 pg. Parent

C WITHDRAWN

D Ten Day notice, 8/15/12, 2 pgs. Parent

E Class Schedule, 2012=2013, 2 pgs. Parent

F Report Card, 2012-2013, 1 pg. Parent

G Related Service Sched. 2012-2013, 1 pg. Parent

H Enrollment Contract, 2012-2013, 2 pgs. Parent

I Related Services Affidavit, 7/24/13, 2 pgs. Parent

J Affidavit of Payments, 11 /7/13, 1 pg. Parent

K Parent Proof of Payments, 2012-2013, 11 pgs. Parent

L 1040-Tax Return, 2012, 2 pgs. Parent

M Teacher and Provider Certificates, 3 pgs. Parent

N Attendance Record, 2012-2013, 1 pg. Parent

I Prehearing Conf Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer