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: Parents

Dates of Hearing: March 19, 2014

June 9, 2014

July 10, 2014

Actual Record Closed Date: August 4, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2014

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Esq. Attorney — DOE

School Psychologist- — DOE

(via telephone)

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

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Dean, — Parents

(via telephone)

Parents

(via telephone )

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2014

Esq. Attorney — Parents

Mother — Parents

Attorney — DOE

On March 19, 2014, June 9, 2014, July 10, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities 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”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated December 9, 2013. (Ex. A) I was appointed Impartial Hearing Officer on December 13, 2013 after the recusal of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on January 10, 2014, the initial hearing was scheduled for March 19, 2014, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 5, Ex. I) Additional hearings on June 5 and June 9 were thereafter scheduled.

(T. 132-133) The June 5 hearing was adjourned at the request of the parents and July 10, the first mutually available date, was scheduled for completion of the hearing and presentation of closing arguments. (T. 139)

Subsequent to my appointment, 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 closing arguments. 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 any my written decisions were given to the parties. (T. 5, 133, 140, 258, 264-265, 370, Ex. II)

The current compliance date is August 23, 2014. The record closed on August 4, 2014, upon my receipt of the final transcript. Background 1 The student at the commencement of the 2013-2014 school year ( program) in September 2013 and was classified as a grade. (Ex. 1)

The student . (Ex. 2) He has attended (Ex. A) He had School (“ from the 2010-2011 school year but was aging out in June 2013, at the end of his 5th grade year. (Ex. 3) The DOE funded his programs at West End. (Ex. A)

The CSE convened on June 3, 2013 to develop an IEP for the 2013-3014 school year. It recommended a special ( core academics (30 periods per week) and related ( 2x40 3:1). It also provided revised test directions and repetitions of the listening section. (Ex. 1)

By letter dated August 2, 2013, the CSE recommended a placement in a community school. (Ex. 10)

By correspondence faxed to the CSE in the beginning of August, the parent notified the CSE of disagreement with the program recommendation, that she had attempted to visit the recommended placement but could not because it was closed until the school year began in September and that the student would be placed and DOE funding sought. (T. 274, 275, 301-303)

No response was received. (T. 304)

On September 1, 2013, the student’s mother (“the parent”) with the 20132014 school year . Pursuant to the contract required with additional on October 30, 2013 and November 30, 2013. Release from the contract after acceptance of a school district placement was permitted upon before August 15, 2013. (Ex. C) The was paid on August 26, 2013, the October and November payments were not made by the parents and there is a balance due of $52,050. (Ex. I)

The student September 2013. (Ex. I)

By letter dated December 19, 2013, the parents requested the instant impartial hearing. (Ex. A) Positions of the Parties

The parents assert that the IEP was substantively defective in that the program proposed was not reasonably calculated to enable this student to make meaningful educational gains. The parents assert no other claim with regard to the CSE review or the IEP and assert no claims based upon the specific placement recommended.^[2] The parents unilaterally support DOE funding for that placement and they request direct funding on the ground of financial inability to pay and seek reimbursement. (T. 321-355, Ex. A)

The DOE asserts that the recommended program was substantively appropriate. It claims that Winston is not appropriate and asserts that neither SL or counseling is provided although the student has needs in these areas The DOE asserts that equitable considerations favor it and claim that the parents had not been willing to accept a DOE placement but rather preferred a private school. It notes that the parent did not visit the recommended school and had been looking into private schools prior to the CSE review. Further, the DOE claims that the contract is illusory. (T. 355-369)

Cases Presented

Both parties submitted documents that were admitted into evidence. (A list of documents in the record is appended.)

The DOE presented the ”), a who participated in the June 3, 2013 review in that capacity and as district representative.

The parents presented the testimony of: , (“the teacher”); the student’s mother (“the parent”).

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 1 The contents of this section are Findings of Fact. 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. Department 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 the parent bears the burden of proof with regard to Prong 2 and Prong 3. 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 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. 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). While school districts are required to comply with all Individuals with Disabilities 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 evaluating 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 disability (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]).

The sole issue before me with regard to whether the DOE has established that it provided a FAPE is the parents’ claim that with various related services recommended by the DOE was not reasonably calculated to enable this student to make meaningful educational gains.

The evidence in this matter shows the following:

The student was entering for the 2013-2014 school year. However, he had been held back twice. His full and it was reported that there was a considerable degree of delay in all areas of intellectual functioning. His and he time of the review working at a 4th grade instructional level for both reading and math. (Ex. 1)

He had difficulty identifying the main idea of paragraphs and summarizing what had been read, he tended to guess how words were pronounced from the first letter and his language lacked age appropriate complexity both grammatically and thematically. (Ex. 1)

A conducted by Center of , was obtained by the parents in March 2013, and was reviewed by the CSE. The evaluator reported learning problems in the rigid thinking with difficulty regulating his emotions, , work, withdrawal and problems with . The evaluator concluded that the findings suggested that the student was frequently alone and might have difficulty making friends, as communication skills that impeded his ability to have social conversations or find information on his own. The parent had reported at that time that although his teachers called him a “model student,” he was very selfcritical, had low self-confidence , often reporting that he feels stupid, that he often appeared withdrawn and depressed . (Ex. 2)

The Social History Update, also reviewed by the CSE, reported the student was in class with about 7 students,1 teacher and 2 adults with smaller groups for reading and math, that he tended to withdraw from group conversation, tended to be a listener and could not sustain a conversation but was well liked, well mannered, kind and respectful with a sense of humor and no behavior problems. (Ex. 3)

The Report stated that the student needed a lot of teacher support and modeling to feel safe and comfortable in the classroom and consistent individualized attention to address his many academic needs and that “[o]ne-on-one time with the teacher is crucial to his ability to participate fully in his academic groups” and that the student is incredibly shy and insecure around language.” (Ex. 4)

The student’s counselor reported a student with himself because his ability to keep up with other students academically and socially. (Ex. 4)

These documents were considered by the CSE which then recommended a program with a total of 7 pull out sessions and counseling. (Ex. 1)

In support of this program NOS testified that the student had no significant interfering behaviors and that he needed a class in which he and social skills to . (T.

51) A class of 12 would provide the opportunity to learn appropriate behavior from peers, to experiment but would be sufficiently structured, with the staffing ratio provided. (T. 53-53)

With regard to academic instruction, NOS testified that the recommended program was consistent with the recommendations in and in that it would provide individualized instruction and individualized support. (T. 50-51) The paraprofessional in the classroom could provide . (T. 51) Further and provided an opportunity for support.

However, in view of the student’s academic and language difficulties in the much more intense staffing , I find no support for the CSE’s conclusion that in the larger class he could make appropriate academic gains. Although the IEP itself does not reflect it, I find persuasive the testimony of the parent that she and each of members who participated, disagreed with the proposed public school program and so informed the CSE. The minutes, . (Ex. J)

Further, the evidence, as set forth above, shows a student with very serious deficits, who is conscious of his deficits and embarrassed by them, resulting in depression and withdrawal. He had even in the small classes . (Ex. 4) The program the CSE provided would twice a day, and, I conclude, would likely and result in increased withdrawal. The evidence shows that this and . I conclude that unless those deficits are addressed in an appropriate program, the student’s social emotional difficulties and withdrawal would increase regardless of the size of the peer group.

The DOE argues that therefore provides less than the CSE proposed and that that demonstrates that the CSE recommendation is appropriate. program, discussed below with regard to my Prong 2 analysis, is a very integrated program with the same instruction carried over into the different classes to provide ongoing reinforcement and repetition. Further, the classes are organized to ensure that all students were at the same functioning levels with the same types of difficulties which would reduce the student’s embarrassment. Finally provides a dedicated teacher who works with the student daily principally one to one to reinforce what is happening in the class and to develop his communication skills. I conclude that no way comparable to a public school program and the student’s progress in that program does not support a conclusion that he would progress in the very different program proposed by the CSE, which was, I note, rejected by the persons who had worked with the student.

I find, based upon the foregoing, that the DOE has failed to meet its burden establish that the [program it recommended was reasonably calculated to enable this student to make meaningful educational gains. Accordingly, I find that it has failed to provide a FAPE.

Prong 2

When a public school system has failed to provide 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 disabilities. 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).

The parents assert that they have met their burden to show that Winston is appropriate for this student. I agree. Credible evidence shows the following:

. (T. 148) All prior experiences. (T. 150) Most have IEPs. (T.151) The school is strategy rather than content oriented in its instructional mode which enables focusing a particular difficulty as it emerges in the classroom. (T. 157) Professional development is provided. (T. 147)

has some 180 students in grades 4 through 12.chronologically although the school is ungraded. (T.192, 195 ) There are some 5-6 classes in the 12-14 year old (middle school) age range. (T. 197-198) The students are grouped in classes according to similar levels and needs and class sizes range from 8 up to possibly 13 with one teacher. (T. 183185, 194-195, 197-198) The group for this student was standardized instruments. (T. 178-179) This student is in a class of 12 (12-14 years old) for all academic subjects except math where there may be one fewer. (T. 182, 191) The subject areas are taught by different teachers. (T. 182) In provides a daily 45 minute class from a Focus teacher.

(T. 213) That class is is for 1 period per week in a group of 3 to facilitate conversation skills and interaction with peers. (T. 220-221, 223-224, 226)

The teaching approach of the school is an integrated one with very frequent interaction and communication between teachers and administrative staff to ensure that the same methodologies are utilized and that learning is continually reinforced across classes. (T. 157, 193, 236, 253) Progress in academic subjects during the school year is routinely assessed and standardized instruments are utilized in the assessment process.

(T. 165, 180-181, 193-194, Exs. E, F, K, L) There are fulltime speech language therapists on staff who can provide individual services if necessary and who provide guidance to staff. (T. 201-202, 247) However, into the school program and is not usually provided. (T. 246) There is a full time social worker on staff who can provide counseling if necessary but if are made for outside providers who communicate with the school. (T. 186)

designed and implemented an individualized curriculum for her class based upon this student’s needs emphasizing expressive and receptive language. (T.213-214, 221,

240) She opined with regard to this emphasis that the student’s actual functional levels and comprehension are somewhat higher than tested, the disparity resulting from his expressive language limitations. (T. 217, 219, 238) In order to address his specific the school, in all classes, utilized for this student multi-sensory techniques, repetition, chunking and breaking down of material, outlining and highlighting techniques and tools, modeling scaffolding, prompts and modified teaching and testing for this student. (T. 152, 154, 157-161, 166-167, 189-190, 201, 204-205, 222, 229-230) IEP mandated goals are addressed and IEP mandated testing accommodations substantially provided. (T. 199189)

Further, the student has demonstrated progress in academic areas as well as social and emotional development, with greater confidence, and to seek help and ask questions and increase social interaction. (T. 153, 156, 166, 170, 193-194, 200, 215, 218, 220, 221, 235, 248, Exs.E, F, G, K, L)

The DOE asserts that the placement is not appropriate. With regard to its claim that the teachers are not adequately qualified, I note that the dean who supervises the student’s teachers is a special education teacher and observes in each of the student’s classes at least 1 to 2 times per week and plans curricula for classes, the student’s teachers principally are special education and/or general education certified or have special education training or experience and the school utilizes an integrated educational approach with very frequent communication and mandated teaching methodology. (T.147-149, 172-178, 200-201, 210, 212, 252-253) Further, it is well established that special education credentials are not required in parental placements. Carter.

With regard to the DOE’s claim that related services were necessary but not provided, I note that parents are not held to the same requirements as the district with regard to related services provided. Frank G.; Gagliardo; Appeal No. 09-017. See also G.R. v. New York City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009); Gabel v. Bd. of Educ., 368 F. Supp. 2d 313, 32 (S.D.N.Y. 2005). I also note an integrated program in which is embedded and was a substantial focus of his and the student has made substantial progress in this area without them. (T.168, 185, 205) Moreover, are available for teachers with regard to individual students if necessary. (T. 203) With regard to counseling, I note that although some students receive it, this student progress in this area without them. (T. 187, 233, 256) Further, the evidence shows that that this student’s related to Accordingly, I find no basis for a conclusion that not appropriate.

Based upon the foregoing, I conclude that the parents have met their burden to demonstrate that the unilateral placement was reasonably calculated to enable this student to make meaningful educational gains.

Prong 3

The DOE asserts in arguing that equitable considerations warrant denial of DOE funding that the parents preferred a private school and were not willing to consider a DOE placement and, further, that the contract with The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.

There has been no claim by the DOE that the parent failed to cooperate in the development of the IEP. It is undisputed that the parent informed the CSE of her concerns at the review and gave timely notice of the unilateral placement as required by 28 U.S.C. 1412(a)(10)(c)(iii). (T. 274, 275, 301-303, 368) I give no weight to the parent’s failure to visit the proposed school here where the parent attempted to do so prior to the commencement of the school year and I find her testimony that she was apprehensive (T. 276)

Finally, I note that the parent executed a contract and I find the intentions/actions of Winston with regard to collection is not a basis for denying funding by the DOE. Mr. & Mrs. A.

I find that equitable considerations support full DOE funding.

The parents’ inability to pay and seek reimbursement is established by the evidence and has not been contested. (T. 283, Ex. D) Accordingly, direct payment as requested will be ordered for the balance due.

Order

The student is entitled to DOE funding for for the 2013-2014 school year in the . The DOE shall immediately reimburse the parent and directly the balance due upon the receipt of satisfactory evidence that the tuition usual and customary rate for the program provided. Dated: August 15, 2014

, 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 Department under section 4404 of the Education Law and the Individuals with Disabilities 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.html.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 12/9/13, 9 pgs. Parents

B DOE Due Process Response, 12/18/13, 4 pgs. Parents

C Contract with Winston Prep. 9/1/13, 4 pgs. Parents

D Parents Tax Returns, 2013, 3 pgs. Parents

E Fall Progress Report, 2013-2014, 8 pgs. Parents

F Winter Prog. Report, 2013-2014, 7 pgs. Parents

G Emails from re prog. 2013/14, 7 pgs. Parents

H Information about undated, 17 pgs. Parents

I Affidavit, Attendance and Class Schedule, 3 pgs. Parents

J Minutes from the 6/3/13 CSE meeting, 6/3/13, 2 pgs. Parents

K Report Card, 2013-2014, 2 pgs. Parents

L Final Report, 2014, 8 pgs. Parents

1 IEP, 6/3/13, 14 pgs. Department of Education

2 . . Eval. 3/19-3/20/2013, 12 pgs. Department of Education

3 Social History Update, 5/13/13, 2 pgs. Department of Education

4 Department of Education

5 DOE Let for consent for reeval, 1/7/13, 1 pg. Department of Education

6 DOE let for consent for addtl. assess. , 1/7/13, 1 pg. Department of Education

7 DOE let to schedule soc. hist. update, 4/17/13, 1 pg. Department of Education

8 DOE let re complete social hist update, 5/6/13, 1 pg. Department of Education

9 DOE Notice re sched. IEP mtg, 5/24/13, 3 pgs. Department of Education

10 FNR, 8/2/13, 1 pg. Department of Education

11 WITHDRAWN Department of Education

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer

III Subpoena Impartial Hearing Officer

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Footnotes

[2] Although the hearing request made assertions concerning the goals, there is no claim of procedural violation in connection with the goals. (T. 352, 356, Ex. A)