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: March 17, 2014

May 13, 2014

Actual Record Closed Date: July 18, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2014

Attorney — Student

Parents

DR., Chairperson Designee, Committee on Special Education — DOE

DR., School Psychologist — DOE

Special Education Teacher — DOE

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

Attorney — Student

Parents

Co-Director of School (Via Telephone) — Student and (Via Telephone) — Student

Teacher (Via Telephone) — Student

Teacher (Via Telephone) — Student

Psychologist — Student

Chairperson's Designee — DOE

PROCEDURAL BACKGROUND

The hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C.

§1415(f), the Individuals With Disabilities Act (“IDEA”). The due process complaint dated October 24, 2013 and as re-filed by complaint dated December 2, 2013 seeks, among other things, tuition reimbursement for the student’s 2013-2014 school placement in the School, a school that is not approved by the Commissioner of Education for the education of students with disabilities. The hearing took place on March 17, 2014 and May 13, 2014. The Department of Education, (“DOE”) was represented by a DOE designee and the Parent was represented by an attorney. The DOE submitted 7 exhibits, hereinafter “Exhibit 1 through 7” and called two witnesses to support its position. The Parent submitted 8 exhibits, hereinafter “Exhibits A through H” and 6 witnesses testified in support of her position. The list of exhibits is attached hereto as “Attachment A”.

DOE’S POSITION

The Department of Education maintains that it developed the student ’s Individualized Educational Plan (“IEP”) based on the information obtained through the student’s private school reports and the private evaluation.

Additionally, the DOE asserts that the parent and private school teacher meaningfully participated in the Committee on Special Education (“CSE”) meeting and that the IEP addresses the student’s needs. The DOE asserts that it offered the student a free and appropriate public education (“FAPE”).

PARENT’S POSITION

The parent asserts that the student was denied FAPE. The parent maintains that the IEP failed to identify the student’s levels and does not include corresponding goals to address the student’s deficits. The parent also claims the IEP is not reasonably calculated to confer educational benefit. The parent asserts that the IEP is fatally flawed as it does not indicate promotional criteria or the student’s management needs. Further, the methods of measuring achievement lack specificity. The parent challenges the appropriateness of the recommended placement based on the lack of individualized support. The parent also asserts that the CSE’s recommendation was inconsistent with the recommendations made by the student’s providers. The parent charges that as a result of the failure of the DOE to offer the student an appropriate placement, she was unilaterally placed in the School which, the parent asserts, provided the student with an appropriate program. Accordingly, the Parent seeks tuition reimbursement for the unilateral placement of the student for the 2013-2014 school year, door to door transportation and costs and fees.

FINDINGS OF FACT

The student is a child who is classified as , during the 2013-2014 school year the student was a grader. Her classification is not in dispute.

On 7/24/2013 the CSE met to develop an IEP for the 2013-2014 school year. In attendance were the special education teacher, the parent, the CSE representative (who was also the CSE psychologist) the CSE parent member, a teacher, 2 parent advocates and the child’s teacher. The IEP indicates that the student’s overall levels were at the grade level. Further, testing reveals that her , and skills are within the range. In her abilities are approximately on a grade level equivalency. The IEP also indicates that the student’s skills are estimated to be on a grade level. The student’s level of performance stated on the IEP indicates that the student excelled in and .

The student was recommended for an class with periods a week of , (“ ”). The student was also recommended for the related services of sessions of a week and sessions of - . She was recommended for the following testing accommodations: and . For the 2013-2104 school year she was recommended for modified promotional criteria where she had to meet of the standards for promotion. (Ex 2)

The CSE representative testified that the team reviewed the student’s strengths and weaknesses and determined that the student required to address her and weaknesses. He testified that goals were created to help her with skills as well as and to increase the student’s . (TR 37) The witness testified that goals were developed to address the student’s deficits in in , and within and , goals were developed that both a and teacher can work on in terms of her within the context of . The witness testified that the team developed a goal for organization; which included using a ,

, . (TR 38) The witness testified that the IEP contains a goal for the student to and teacher strategies to . Additionally the witness testified the student was recommended for to address her . (TR 39) The witness testified that the team developed goals based on the student’s and progress report. (TR 40)

The witness testified that CSE recommendation was based on its belief that the student would be best served in a class room with typically developing peers and that the CSE recognized that she had weaknesses in and in which required full time support in those areas and in and while still receiving the same level of content as typically developing students as she had the ability to understand these higher level concepts. Additionally, the CSE recommended that she receive , , to provide additional support in and .

The teacher of the recommended placement testified in support of the DOE’s position. She testified that she has a background and has training in an based program called . She also testified that she has training in and the training which is for kids with disabilities as well as . Additionally, she testified she is also trained in which is all part of the system and that-- it's for children from to and it's for children who need help with in and up. (TR 79)

The evaluation performed during the time the student was in the reveals that the student’s performance on the test range from the grade level in word attack skills to the grade level in in and in from the grade level in to the grade level in . The evaluation also consisted of

, , the , a

, the , , the and the . The results of the a full scale IQ of , with discrepancy noted in her and . The assessments show that she has skills ranging in the range in the subtest of to range in . On the she scored clinically significant in

/ and . The Parent

scored the student clinically significant in / and . Her skills as accessed by the were in the to the range. She showed weaknesses in her and . The testing revealed issues with the student’s , and . With reference to the student’s skills, she scored in the to range. (Ex 6)

The psychologist who tested the student testified regarding the evaluations and the student’s . She testified that the student presented with clinically significant symptoms of an and that she needs that in order academic, grade appropriate academic skills. (TR 251) The witness testified that she did not see the student benefitting from the environment given the student’s and her need for in order to make the gains she's made. (TR 266)

The Director of the private placement testified regarding the student’s needs and the services she receives in the private school. She testified that is a challenge and that because of her issues, the pacing of her program has to consider that the student needs time for everything as the student . The private program provides information in .

Even with that , she will still . (TR 129, 130)

With reference to the student’s , the witness testified that the teachers address the student’s and although they're not trained psychologists, the teachers know when she and

.

The student’s and provider testified in support of the parents’ position. The witness testified that was in the beginning of the school year and she couldn't , but, by the end of the school year, she was . The witness also testified that the student’s and improved over the school year. (TR 143)

The student’s homeroom teacher who teaches the student , , and testified regarding the student. She testified that the student has , and having to do with .

Additionally, the teacher testified that the student has which makes her have more about practicing things in class, she has issues. She has and it spills over in all of her classes. (TR 157)

The class consists of students with teachers and sometimes the specialist comes in, so at some points there are teachers. The witness testified that the student requires the . (TR 158, 162)

CONCLUSION OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v.

Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

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 in adequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (Burlington, 471 U.S. at 370-71). "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 child a FAPE (id.; see 20 U.S.C. § 1412[a] [10] [C]

[ii]; 34 C.F.R. § 300.148).

The first step in analyzing a tuition reimbursement claim is to determine whether the district offered to provide a FAPE to the student (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). 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; Cerra, 427 F.3d at 192).

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 v.

Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensure 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 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).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to 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 Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; 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).

The IEP properly reflected the student’s present levels of academic achievement, social development, and management needs based on the evaluative information that was available to the CSE. The IEP reflects that the student’s private school teacher and private evaluation were the cornerstones of the description of the student’s . Indeed, the IEP was developed in conjunction with the input of the private school personnel present at the CSE and accurately lists the student present level of performance.

Accordingly, the student’s IEP is appropriate.

The second inquiry to be determined is whether the services selected by the parents are appropriate. The relevant inquiry requires that a private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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]). 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).

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 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).

The testimony of the student’s teacher and the private school Director that the student made progress in the private placement is persuasive.

The final criterion for a tuition reimbursement award is that the parents' claim must be supported by equitable considerations. 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 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 a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008] Further, there was no evidence that the parent impeded the CSE process. Accordingly, equitable considerations would support the granting of tuition reimbursement.

The request for tuition reimbursement is denied.

Dated: September 4, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

1 Impartial hearing request dated 12/2/13 7 pages

2 IEP dated 7/24/13 16 pages

3 progress report dated 2/1/13 13 pages

4 report mid-year 2012-2013 3 pages

5 evaluation dated 1/13/13 4 pages

6 evaluation dated 1/4/13 21 pages

7 Final notice of recommendation dated 8/14/13 1 page

PARENT

A Mid-year Report Card dated 2/4/14 13 pages

B and Evaluation dated 2/16/13 5 pages

C Evaluation dated 1/4/13 3 pages

D Letter from Parent dated 3/6/13 1 page

E Letter from Parent dated 8/16/13 2 pages

F Letter from Parent dated 9/25/13 1 page

G Copy of Certified Mail Receipt dated 3/7/13 2 pages

H Copies of Return Receipt dated 8/9/13 1 page

HEARING OFFICER

I Parent’s Closing Statement dated 6/23/14 10 pages

II DOE’s Closing Statement dated 6/23/14 10 pages