New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 2, 2013

January 13, 2014

February 20, 2014

Actual Record Closed Date: March 7, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2013

Advocate for Parent — Student

Attorney for DOE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2014

Advocate for — Parents

Attorney for DOE — DOE

Special Ed Teacher, Region 8 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20,

2014

Advocate — Student

Parents

Administrator (Via Telephone) — Student

Attorney — DOE

INTRODUCTION

On November 01, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Pre hearing conference was conducted on December 02, 2013 and hearing date was set.

On January 13, 2014 parent made a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to February 13, 2014. (T 33-34)

On February 18, 2014 both parties joined, via email to the IHO, in a motion to extend the compliance date by 30 days to allow parties time to prepare their respective cases. Motion was granted and compliance date was extended to March 15, 2014.

This matter was instituted by the impartial hearing request dated, October 20, 2013, alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 20132014 school year. (Ex A 1)

Relief sought includes direct funding or reimbursement for unilateral placement at the ) and transportation services, for the 2013-2014 school year. (Ex 1)

BACKGROUND

IESP of March 07, 2013 includes the following information regarding the student: recommended services include individual Special Education Teacher Support Services (SETSS) 5 times weekly, services individually for 2, forty-five minute individually for 2 thirty minute sessions weekly individually, twice weekly for thirty minute sessions. (Ex 2)

THE PARENT’S POSITION

advocate, presented the parent’s position.

outlined the parent position in his opening statement. Student is old, previously in a mainstream setting receiving Special Education Support Services (SETSS) five times weekly with related services, 2013, meeting held was not legally constituted, parent consented to continued services, parent was not aware of other options until June of 2013 when notified that her child would no longer continue at that school and would or seek special education placement, parent sent a letter to the DOE in July 2013 to reopen the student’s case and reconvene an IEP meeting to discuss the possibility of additional support or altering student placement, letter was not addressed by the DOE, In August parent wrote another letter to the DOE regarding a reconvene of an IEP team and that the child could not return to a mainstream setting, therefore student would be unilaterally placed. Parent also advised the DOE of being open to a DOE recommendation. is an appropriate placement. DOE did reconvene in February of 2014, though parent has not received an IEP. DOE was untimely in addressing the parent’s concerns and failed to provide a FAPE for the 2013-2014 school year. Parent cannot afford tuition and seeks prospective payment thereof. (T 40-42)

PARENT WITNESS

) reviewed his educational and professional background and testified as an administrator at responsibilities are to develop and oversee a curriculum plan for each of the self-contained special education classes. determines the goals for each individual student including academic, behavioral and emotional, and works with teachers to implement methods to promote and achieve these goals. “I also prepare and present staff development and coaching throughout the year for the staff and I meet with parents throughout the year as necessary at specific times to discuss progress and goals as well as to guide and coach parents as necessary to implement some of the goals at home, specifically when the goals are related to behavior.” (T 46-47 & 50-51)

meets with the classroom teacher weekly to develop IEP goals. (T 94-95)

is a mainstream school, “an elementary school ranging from grade one to eight with about 430 students and within this mainstream school is a Special Education Department with six self-contained classes and we have a total of around 50...students in our special education classes and special education students are part and parcel of the mainstream school, which means they take part of all of the extracurricular activities, all of the recess, you know, and lunch activities and anything that, that sometimes the general school took trips and other assemblies.“ (T 47-48)

Student disabilities in the special education program include disabilities, . (T 50)

Student is in the second grade and attends of eight student, since September 2013, in a 1st - 2nd grade class. All students have an IEP. (T 51-52 & 93)

Class has a Other support staff comes into the classroom throughout the day, including a person for Yiddish language and therapists. The paras are assigned to individual students for behavior reasons. (T 52-53 & 76-77)

Class has a behavior plan which is modified for each student. (T 77-78)

All student s are bilingual Yiddish. The primary language spoken in class is English. (T 53)

An instuctor provides Yiddish language and reading instruction. Other educational programs include social skills, oral expression, visual and verbalizing are done in student‘s primary language. (T 53-54)

Class includes English reading, writing and math. (T 54)

GG detailed the reading program. “we divide reading into two parts. We use the concept and the theories of Vowels Literacy as part of our ways of teaching comprehension and exposing students to texts and interesting them in texts. So we have a typical kind of workshop model where we have the mini lessons and class lesson and reading, independent reading, all of the components of Vowels Literacy. Aside from that we also teach phonics using Orton Gillingham approach for most of the students, as well as supplementing it with some of for some of the students. And that's at a different part of the day.” Lits refers is for phoneme awareness but there's much more of a focus on kinesthetic components.” (T 55-57)

In September 2013 student was on a pre-k reading level. T 56-57)

One of the student’ primary issues and challenges “ that she came in and she was not performing at the beginning of the year in any way…in was so incapacitating that she wasn't performing at all. During an assessment it was hard to get any idea of any piece of information that she would have…I probably spent a half hour just getting her to relax and to even sit and look at me. So there was no way to really completely assess where she was at but whatever she had was not consistent. She didn't perform consistently but she did have some letters that she recognized.” (T 56-57)

Currently the student is described as cognizant, reading is still her major difficulty. She has auditory processing issues as well as phonemic awareness challenges. We are working on pre-reading skills. (T 57-58)

Student writing is described as using the “writing workshop model where we have a group lesson and, and guided writing and then the kids come back and share.” Student’s writing has not come in yet and “she has a very , which we're…slowly working on and , the focus with her in writing is to tell her a story using pictures and creating more detailed pictures as the year is going on so that she gets to realize the details of it so I can tell it to the class using the detailed pictures that she's drawn. As she gets, as she masters more letters the goal would be that within three or four months to have her start labeling those pictures so that she can not only tell a story orally but can have some written words to describe what's going on.” (T 58-59 & 70)

Progress is stated in that the student shows much more detailed pictures and confidence. OT and social skills are coming in a way that student can “tune in to details of the story.“ (T 59-60)

Student can write letters and numbers. (T 60 & 81)

For math “we use various sources like Everyday Mathematics and Singapore Math but our math program is focused on the philosophy of making math real which really breaks down the math concepts in very, very clear ways from the concrete, the semi-concrete, the semi-abstract, the abstract, and the very clear linking of the abstract and the concrete…” (T 61)

In September it was not evident that the student had any math abilities. Currently the student has mastered reading and writing numbers. Student has 1:1 correspondence and begun to do single digit addition. Student uses a large number line “in terms of time and money…she can identify and knows the value of three, of three coins and our next goal would be to have her combine some of those coins but…we're holding off with that until we get more mastery of computation in general…she just began learning how to just understand the concept of time and she's at the point where she knows the difference between an hour and a minute and it's really just…spending time on exploration of the clock and what it means and just time concepts right now.” (T 62-63)

generally reviewed the student’s schedule. (T 64, Ex E 1)

Visualize and Verbalize is actually a program specifically designed to use with speech therapy. It is crucial to the skill of comprehension. The class is divided into three groups based on level. (T 65-66)

Oral expression period is for students to develop thinking, listening sand social skills. Student is not as comfortable in this class since it demands more patience. (T 66-68)

Nutrition and supervised socialization includes motivating students to bring in healthy snacks and engage in turn taking , to play a game. (T 68-69)

Student has social skills and has to understand what’s socially acceptable. But in close proximity to an adult she tends to be more unnatural. has seen progress. (T 69-70)

Student mainstream opportunities include extracurricular activities, assemblies, and performances. Students may be coached prior to a particular activity. (T 71-72)

Many student are bilingual Yiddish. (T 72)

School staff discusses student progress with the parent. (T 73)

staff participate in IEP meetings. (T 74)

Student is receiving , where each provider works on specific goals. Providers are employees of the school. (T 84, 95 & 97)

and auditory processing issues. (T 96)

is provided due to , and body strength. (T 96)

(T 96)

is familiar with the tuition contract signed by the parents. Related services are included in the tuition, which is $47,000.00 for each student. Tuition is more if the student has a para. (T 84-85)

Religious instruction in the program includes prayer. (T 86, Ex E 1)

Student anxiety level decreased after about four weeks in the program. (T 89)

PARENT WITNESS

( ) testified as the student’s mother. Student ) a mainstream program for the 2012-2013 school year. Instruction was provided in English and Yiddish. Student received SETSS and related services. (T 99-101)

Towards the end of the school year school staff told the parent the her child could not attend the school and needed more support. (T 102-103)

Parent states tried to be very, very nice to me and tell, tell me just it's better for my child and, you know, they told me about names of school where she, where, you know, where they think it could be good for was not one of the school s discussed. (T 112-113)

SETSS services were provided to the student in a group. (T 132-133)

Student started to misbehave and did not want to be taken out of class for SETSS. Then she started not wanting to go to school. (T 103)

Student was born as a preemie and received services from three months of age. (T 100)

RF recalls a meeting of March 2013. She attended over the phone, told of her child‘s troubles, and was assured her child was receiving the most services available. found the class was moving too fast for her child and bigger.” (T 101-102)

RF described her child’s her support. (T 112)

At the end of the 2012-2013 school year parent sent a letter to the DOE via mail and fax, but received no response. (T 104, Ex B)

Parent sent another letter in August of 2013. RF asked for a reconvene to address her child’s struggles and ask for a placement. (104-105, Ex C)

RF would have placed her child in a public school if offered for her child. (T 105)

RF believes there are Yiddish speaking programs in her neighborhood. (T 105)

DOE did provide the requested transportation sought in the August letter. (T 107, Ex C)

DOE responded to her August letter last week and conducted an IEP meeting. (T 107 & 126)

is in contact with and therapists at least once a month, and speaks to the teacher over the phone about the student. (T 108)

describes progress she has seen this year. “academically, socially, emotionally, she's a different child. She runs on the bus…in her academics she up to much further than last year whole year. And we still didn't finish the year.” (T 107)

Parent cannot afford the tuition and is responsible for payment. (T 108-109)

Parent identified 2012 tax return, which reflects parents total income. (T 109 110, Ex K)

Parent letters were sent via fax and regular mail. (T 113-115)

Parent letter was seeking an offer of a school for her child. (T 116-117)

Parent did not ask for a school placement in March 2013, since she intended to continue at UTA. (T 117)

Parent did not bring any new reports to the March meeting, though she believes the therapist send in reports. (T 118)

UTA provided the parent with academic reports of the student. (T 118)

Parent had agreed to the services in the March 2013 IESP, believing her child was receiving the most services at the time. (T 122-123, Ex C)

RF knows that an IEP would allow placement in a public school. (T 123)

Parent was not seeking an IEP in March 2013. (T 125)

GSY tuition contract was signed on09/02/2013. No money has been toward tuition. (T 131, Ex D)

DEPARTMENT OF EDUCATION POSITION

(JD), DOE Atorney, presented the DOE position.

contends that the meeting that took place may not have been in response to the parent letter, but just taking place in the normal course of time for the student. Also that the transportation may not have been in response to the parent’s letter, and instead could have resulted from another process. (T 138-139, 144)

JD also contends the DOE did not receive either parent letter entered into the record. (T 160, Ex B & C)

JD also submitted Closing Brief which was considered in rendering this decision. (Ex IV)

DOE WITNESS

reviewed her educational and professional background and testified as a DOE special education teacher assigned to Region 8. “I create IEP conferences, I work with my team members and we basically sit on the IEP conferences.” (T 9-11)

Most of cases were parentally placed students seeking services form the DOE. An IESP is created to deliver the services. (T 11-12)

does not recall the meeting of March 07, 2013. “The purpose of the meeting for Esther was to continue giving her the services that she was receiving.” (T 12)

General practice at the meeting includes looking at student progress, discussing progress with the parents, and continuing services from the annual review. At the time LS had no reports for the student. (T 13)

Parent did not ask for an IEP at the meeting. If she did ask an IEP would have been created. (T 14)

Of parent requested more services then she would have been directed to write a letter for a reevaluation. (T 14-15)

At the meeting LS explains the IESP process. “I tell the parent that this is an IESP, that this is an annual review where we look up student's progress and we basically continue the services that were already in existence.” ( T 15)

does not recognize parent letters. (Ex B & C)

identified IESP developed at the meeting. (T 17, Ex 2)

identified the Final Notice of Recommendation (FNR) for the student, dated March 07, 2013. Document is used to initiate services for the student. Document was received by the CSE. (T 17-18, Ex 3)

To address parent concerns about the student slow rate of progress the services continued. (T 28)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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 a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

INDIVIDUALIZED EDUCATION SERVICE PLAN (IESP)

When a student with a disability is enrolled in a non-public school, New York State Education Law Section 3602-c, the dual enrollment statute, applies. Section 3602-c

(2) mirrors the Federal requirement of provision of educational services to students with disabilities at public and private schools into state law. Under section 3602-c (2)(b)(1), the committee on special education must make special education programs and services available to students with disabilities attending non-public schools located within the school district, on an equitable basis, as compared to those provided to students with disabilities attending public schools within the district. Upon request of the parent, a committee on special education must develop an IESP for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program. Section 3602-c (2)(c) provides for due process complaints relating to compliance of the school district with child find and evaluation requirements.

The district "'need not make FAPE available'" to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district of location. In this matter the is no evaluation, or any student records of any kind regarding student levels or special education need(s).

No evidence is presented that the IESP "based on the student's individual needs in the same manner and with the same contents as an IEP" and to "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district" (Educ. Law § 3602-c[b][1]).

State policy guidance issued by the Office of Vocational and Educational Services for Individuals with Disabilities (VESID); since then having been reorganized and renamed, and for purposes of this decision, will be referred to as the Office of Special Education. According to an interpretive guidance memorandum published by Office of Special Education and titled "Chapter 378 of the Laws of 2007—Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c," (Office of Special Education guidance memorandum) dated September 2007, with respect to child find requirements and the provision of special education programs and services to students parentally placed in private schools within the district of location, the Office of Special Education guidance memorandum notes, in pertinent part, the following:

The district of location is responsible for child find for students who are parentally placed in nonpublic schools located in their geographic boundaries.

The CSE of the district of location must develop the IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic . . . schools located in the geographic boundaries of the public school.

The IESP must be developed in the same manner and with the same contests as an IEP is developed. (Office of Special Education guidance memorandum at pp. 4-5). ^[1]

In this case the DOE did not develop an IESP for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.

Testimony reflects were discussed and DOE, via offered support, assuring the parent that the child was receiving the most services available. (T 101-102 & 112)

does not recall the meeting of 03/07/2013. He sets forth the purpose of the meeting “The purpose of the meeting…was to continue giving her the services that she was receiving.” (T 12)

No evidence was presented to indicate why the services included in the IESP were appropriate or necessary for the student.

No reports or student records were reviewed, no levels of academic achievement are included in the IESP.

No therapy goals are included in the IESP. (Ex 2)

No goals are included in the IESP. (Ex 2)

No goals are included in the IESP. (Ex 2)

No group size is indicated for the SETSS services. (Ex 2-4)

No teacher or therapist with direct, or any knowledge, of the student appeared at the meeting.

IESP does not include any special education transportation services. (Ex 2-6)

For the reasons stated above, I find that an appropriate IESP was not created for the student for the 2013-2014 school year.

DOE PROPOSED PLACEMENT for 2013-2014

Initially I find that the parent evidenced sending two letters to the DOE seeking appropriate placement for her child and an IEP meeting. Parent sent two letters to the DOE, 07/08/2013 and 08/23/2013. (Ex B & C)

No evidence is provided that the DOE did not receive the letters. LS statement that he did not see the parent’s letters does not effectively evidence that the DOE CSE did not receive the letters, or that the parent somehow was deficient in how the letters were sent. (T 16, Ex B & C)

Evidence supports that the DOE did indeed receive the letters which were relied upon to instituted transportation services for the for the 2013-2014 school year. IESP does not include transportation for the student, and no other evidence exists as to why the transportation commenced. (Ex 2-6 & C 1)

DOE failed to respond to the parent’s requests for an IEP meeting and failed to draft an appropriate IEP and offer of placement for the student for the 2013-2014 school year.

Therefore, I find that the DOE failed to offer the student a FAPE for the 20132014 school year. PLACEMENT for 2013-2014 and documentary evidence support the appropriateness of , for the 2013-2014 school year.

GG meets with the classroom teacher weekly to develop IEP goals. (T 94-95)

Detailed goals are prepared for the student to address her needs. Areas of academics for which goals were created include handwriting, math, literacy, expressive writing, science, and social studies. (Ex E)

Additional details specific to the student are detailed Card of November 2013. This includes academics as well therapy goals. (Ex H)

No evidence is presented to contest any goal or content of documents. (Ex E & H)

General information regarding includes that it is a special education program housed in a mainstream school, there are six self-contained classes with a total of about fifty students, special education students have opportunities to interact with mainstream students, student disabilities include learning disabilities, intellectual, hearing and developmental delays, all students are bilingual Yiddish, and the primary language spoken in the class is English. (T 47-48, 50 & 53)

The student is in the second grade, in a class of eight students, in a 1st - 2nd grade class and all students have an IEP. (T 51-52 & 93)

Class has a main teacher, an assistant and two paras assigned to individual students. Other support staff includes a person for Yiddish language and therapists. (T 52-53 & 76-77)

The class has a behavior plan which is modified for each student. (T 77-78)

detailed the reading program and progress. (T 55-58)

detailed the student’s writing program and progress. (T 58-60, 70 & 81)

detailed the student’s math program and progress. (T 61)

Math was a particular area of deficit for the student. states that in September it was not evident that the student had any math abilities. Currently the student has mastered reading and writing numbers. Student has 1:1 correspondence and begun to do single digit addition. (T 62-63)

continued to review the student’s schedule and special education supports for the student. (T 64, Ex E 1)

Visualize and Verbalize is actually a program specifically designed to use with speech therapy. (T 65-66)

Oral expression period is for students to develop thinking, listening sand social skills. (T 66-68)

Nutrition and supervised socialization includes motivating students to bring in healthy snacks and engage in turn taking , eye contact and learn skills to play a game. (T 68-69)

Student is receiving , where each provider works on specific goals. Providers are employees of the school. (T 84, 95 & 97)

, unlike the IESP, details why the student requires special education services.

Speech is required due to very limited language and auditory processing issues. (T 96)

is provided due to general weakness in hands and muscles, poor balance, and body strength. (T 96)

Counseling is working on anxiety (T 89 & 96)

describes progress she has seen this year. “academically, socially, emotionally, she's a different child. She runs on the bus…in her academics she up to much further than last year whole year. And we still didn't finish the year.” (T 107)

I find the educational instruction is e specially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-2014 school year I offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a caseby-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks door to door special education transportation to continue, as currently provided by the DOE to and .

I find the student is entitled to transportation services, as currently provided by the DOE.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, communicated her concerns to the DOE, and in no way thwarted any DOE effort to provide a FAPE for the student for the 2013-2014 school year.

Parent sent a letter to the DOE via mail and fax, but received no response. This letter detailed parent concerns for her child that , even with the supports currently in place. At the time, parent does not appear to be aware that one of the services basis, yet was provided, at times, in a group. Letter sought a reconvene of the IEP team to explore options for her child, and “insure that my daughter has an appropriate placement for September.” (T 104 & 133, Ex B)

Parent sent another letter in August of 2013. again asked for a reconvene to address her , and advising the CSE that she would be placing and seeking funding. Parent also requested transportation for . (104-105, Ex C)

would have placed her child in a public school if offered for her child. (T 105)

Religious instruction in the program includes prayer. (T 86, Ex E 1)

Parent contends she cannot afford the and is responsible for payment. (T 108-109)

Parent identified 2012 tax return, which reflects parents total income. (T 109 110, Ex K)

Parent seeks direct funding, or prospective payment, of tuition for the DOE. Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of four pages of 2012 tax return, indicating 2012 income. No evidence is provided as to any 2013 income and resources available. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2013-2014 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.

GSY class schedule includes 1,875 minutes, 80 minutes of which are indicated as prayer. Religious instruction comes to 4% of the school week.

GSY tuition is set as$47,000.00. Subtracting the religious portion of the day leaves a total of $45,120.00. (Ex D & E)

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 school year.

2. DOE shall reimburse parent for tuition paid for the 2013-2014 school year.

3. Amount of tuition to be reimbursed, by DOE to parent, is $45,120.00.

4. DOE shall provide door to door special education transportation of the student to and from the GSY for the 2013-2014 school year.

5. DOE shall provide parent any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.

6. This decision is subject to appeal and review by the State Review Officer. Dated: March 17, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;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

Entered 01/13/2014 A Impartial Hearing Request, 11/4/13, 3 pages B Parent's Letter to CSE, 7/8/13, 1 page C Parentally Placed, FNR, 8/23/13 D Enrollment Contract, 5 pages E Student's Schedule and Curriculum, 2013/2014, 7 pages F Affidavit of Parent, 1/8/14, 1 page G Schedule 2013/2014 H Report Card, Term 1, 11/2013, 3 pages Entered 02/20/2014 I Current Licenses from Related Service Providers, 4 pages J 2013-2014 Student's Therapy Schedule, 1 page K 2012 Tax Return, 8 pages L February, 2014 Term 2 Report, 4 pages

DEPARTMENT OF EDUCATION

Entered 01/13/2014 1 Due Process Complaint, 10/30/13, 4 pages 2 IEP, 3/7/13, 7 pages 3 Parentally Placed, FNR, 3/7/13, 1 page

IMPARTIAL HEARING OFFICER

Entered 02/20/2014 I Subpoena dated 12/24/2013, 3 pages II Hearing Officer Notice to Parties dated 11/04/2013, 2 pages III Grant of the extension of time lines dated 02/18/2014, 3 pages Entered 03/07/2014 IV DOE Closing Brief, dated03/07/2014, 13 pages

Footnotes

[1] (Available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. United States Education Department guidance can be found in the Federal Register at: Child Find for Parentally-Placed Private School Children with Disabilities (§ 300.131) 71 Fed. Reg. 46593 (August 14, 2006): "If a determination is made by the LEA [local educational agency] where the private school is located that a child needs special education and related services, the LEA where the child resides is responsible for making FAPE available to the child. If the parent makes clear his or her intention to keep the child enrolled in the private [school] located in another LEA, the LEA where the child resides need not make FAPE available to the child" (See Maine School Administrative District #40, 108 LRP 40513 [ME SEA, Oct. 23, 2007] [interpreting and applying the federal guidance and concluding that a district of location was not required to create an IEP for a student given the parent's intention to keep a student in a private boarding school]).