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 8, 2014

January 14, 2015

February 4, 2015

March 30, 2015

Actual Record Closed Date: April 17, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2015

No appearance — Parents

District Representative (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2015

ESQ., Attorney — Parents

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2015

ESQ., Attorney — Parents

Parents

District Representative — District

Psychologist (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2015

ESQ., Attorney — Parents

Parents

Director of Early Childhood, — Parents

Head Teacher, — Parents

DR., Psychologist — Parents

Head Teacher, — Parents

Parents

District Representative — District

INTRODUCTION

On November 5, 2014 I was appointed as the Impartial Hearing Officer (“ ”)

by the New York City Department of Education (“the District” or “DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving the special education program for (“ ” or “the student”) for the 2014-2015 school year.

BACKGROUND

is year old student who is currently attends the (“ ”). The school is but it is estimated that is placed in a class that is level. (t. 79, 97) was unilaterally placed at by her Parents for the 2014-2015 school year. Her classification of and is not in dispute. (t. 39) The Parents assert that the District has failed to provide with a free and appropriate public education (“FAPE”) for the 2014-2015 school year and seek tuition reimbursement for for the school year at issue. The District contends that was provided with FAPE for the school year in question and that the recommended program addressed her unique needs.

FINDINGS OF FACT

is a year old student who was first referred to DOE for evaluation as a year old when she was in nursery school. At the time the Parents were advised by ’s teacher that she was having a hard time being understood by the other children as well as the teachers. The teacher suggested that be evaluated by the DOE. The student was evaluated and though she did not do well she did not qualify for services at that time. The Parents hired a to work with and she received times per week. When was entering at the ( ) for the 2013-2014 school year the private advised the Parents that was not improving and that she should be re-evaluated and that she would probably qualify for services. The Parents did request another evaluation from the DOE and was provided with (“ ”). (t. 166-67) was in a program at and there were children in the class with a head teacher and an assistant teacher.

was receiving and (“ ”). Her teacher at , Ms. , described as a sweet girl who liked coming to school and that was a strength as long as they did not put too much in it. Ms. stated that had a number of weaknesses and that they were all based. had

(t. 141-143) Ms.

described ’s as “ ” and testified that she was when she started in September and it had not improved by the time she left in June. The issues affected her skills detrimentally because of ’s inability to . It was Ms. ’s opinion that needed a great deal of to address her issues and that the teachers were unable to do so as they are not . (t. 144-45) The Parents were advised by Ms. that was . In addition, she was

. (t. 169)

In January 2014 the Parents had a Evaluation done by Dr.

, Ph.D. Dr. met with over the course of days for a total of hours, . (Ex.

4) Dr. found that had which caused

concern about her to and handle the curriculum because of her weaknesses in and processing. Dr.

testified that cognitively is very bright and did well on the testing but that did not give the whole picture. was tested using the which allows for word responses so you are able to show knowledge. , though

. Dr. stated that she had to ask

to

. ’s deficits impact her skills making it difficult to acquire skills. demands become more elaborate and complicated even from years of age and what should be simple for a bright child such as becomes a challenge. (t. 121-26, 131-32, 136) There was concern about going from which is not academic to which is an academic setting. It was Dr. ’s opinion that this was going to be very difficult for as she does . In addition, Dr. noted another difficulty that had was her . Dr. noted that is able to

. (t. 127-29)

Dr. testified that overall ’s testing scores were not, in and of themselves, an indicator of her level of need. (t. 131-32) In the Evaluation (Ex. 4) as a treatment plan she recommended, among other things, that “In order to provide support for….development, it is critical that she receive in a , , nurturing special education school for children of with learning. Classroom size should be teacher-to-student ratio…”

Dr. testified that while

(t. 134-35)

On 6/16/14 an IEP meeting was held and an IEP developed for for the 2014-

15 school year. participated in that meeting as the District Representative and School Psychologist (Ex. 2, t. 26, 28) Ms. testified that the main issue of the meeting was and deficits and not academic deficits as was . (t. 30-32) She also testified that they were provided with an independent Evaluation (Ex. 4) which found that ’s . (t. 33) Ms. stated that ’s receptive skills were found to be or above but in the area of she had problems in that she had . Ms. testified that the Evaluation (Ex. 8) determined that ’s

.

While Ms. testified that it was her understanding of the that it did not find that ’s issues with and it was an area of concern for the Parents. Ms. did a classroom observation of on 6/11/14. (Ex. 9) The observation was done during free time for and found to be . She did not observe during academics. The Parents also had concerns about her . (t. 36-37,

44, 48, 55-56) Goals were developed which covered and , and . The student was classified as and as this was felt by the team to be the main area of concern and that her was really the main concern. (t. 38-39)

Ms. testified that the recommended program was an (“ ”) class with related services of a week for and times a week for . An class generally has students with and special education students with teacher and special education teacher. (t. 58) The team also considered a in a school , as the Parent wanted a and this was supported by ’s current teacher Ms. , but they determined that it would be too restrictive for as she was for placement in such a class. They also considered a program but felt it would not provide with supports that she would need. Ms. testified that the team believed the IEP was appropriate for (t. 39-41, 47,58)

Ms. testified that she participated in the IEP meeting and she specifically stated in the meeting that needed a classroom setting with a lot of and a lot of . The class that was in had students with teachers and she felt that would be too big for going forward. Ms. stated that had real and was really and she shared these concerns during the course of the IEP meeting. (t. 47, 146-48, 172)

The Parent testified that she attended the IEP meeting on 6/16/14 and explained to the team ’s struggles in the classroom and socially with . The participants from the DOE had never worked with The Parent stated that the team was focused on how bright is and essentially only offered the class. The Parent testified that ’s was often unintelligible to her own family. The Parent asked for a smaller based classroom in a setting. The Parent was advised the class they had available would not be an appropriate fit for based on her cognitive abilities. It was the Parents feeling that the class was larger than her class at and she was struggling there which she expressed to the team. The Parent testified that she was told that the was all they had available and that they would get in to trouble if they offered her anything else. The Parent stated that she was also told that they used to offer a based classroom but no longer offer them. (t. 163-64,168-70, 181) In addition the Parents were advised at the IEP meeting that would not be going in to but rather in to the because of her age. The Parent objected because had not been in , it is more academic now and not learned the basic skills. The team stated that they were, notwithstanding not having been in , were going to put her in the . (t.171, 182) Ms.

testified that she assumed that the policy of the DOE was that even if a student had not been to if she was turning she would be going in to the . (t. 61)

The Parents received a School Location Letter (Ex. 3) dated 6/16/14 which stated that the services recommended at the IEP meeting dated 6/16/14 would be provided at in the . The Parent testified that the school is across the street from her and she is very familiar with it. The Parent testified that she visited the school and asked to see the class. After telling the school that is in and her birthday she was told that she would be shown the class and not the . The special education teacher for the class was not in that day but the Parent spoke to the teacher and explained about and her needs and was told that they try to give extra time but it is a big class and that they really can’t coordinate with the because of class size. The Parent returned to the school the next day to speak to the special education teacher and had a similar conversation with her as she had with the teacher. (t. 173-74) The Parent testified that she would love to have her child attend a intensive program right across the street which would allow to have local friends but she did not believe the program appropriately met her needs. After visiting the school the Parent sent a letter to the Committee on Special Education (“ ”) dated 7/7/14 (Ex. B) which outlined the Parents concerns with both the IEP and the proposed placement and asked to be advised on how these concerns could be addressed. The Parent received no response to that letter from the CSE. A follow-up letter was sent to the CSE dated 8/20/14 (Ex. A) which stated that they had received no response to their initial letter detailing their concerns and advising that was to be unilaterally placed at . The Parents received no response to that letter. (t. 176-77)

The Parent testified that after receiving the they needed to find a new placement. A contract was signed for on 4/24/14 (Ex. C) and they paid a tuition deposit of . The Parent remained open to a DOE placement but signed the contract because she would be able to get a full refund if she decided to take a DOE placement by September. (t. 178, 180) A review of the contract reveals that the Parents can receive a full refund if they accept a CSE recommended placement in a public school or New York State approved public school by September 4, 2014. This includes the non-refundable deposit.

is a full time special education school that has a student population of approximately students between ages years old. It is an school that serves bright students with . It is not a school for students with . The school provides related services of and . (t. 78-80)

Ms. , ’s classroom teacher, testified that the majority of ’s weaknesses are based. has difficulty with ,

Her is such that it is very difficult to understand her which causes to have a hard time getting her thoughts across to others. is in a class of students between, and years old, with a head teacher and an assistant teacher. There is an which gives of her time to the class as well as a who gives of her time to the class. This translates in to each giving hours per in the classroom or working with the students. In addition, days out of the week they also have a student teacher. (t. 86-90)

has a in which the come in and out of the classroom, talking to the teacher constantly so if needs extra support they can give or if she is doing really well they can ease back a bit. (t. 91, 156,) Ms. testified that needs a lot of Ms. testified that is making progress and the progress is measured through informal assessments. (t. 98, 102, 105, 113-14) While

(t. 112, 157)

receives a week in . She receives times a week which is broken down to a week , a week in a , a week and a week in Ms.

, the at , describes ’s needs as intense

and believes that she really needs a small ratio classroom with professionals that understand and that such a classroom is crucial to her needs. (t.

158) Ms. testified that ’s needs could not be met in a classroom but that the goals on the IEP are appropriate though in addition to those goals she has many more that she is working on. (t. 160-61)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482)

has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer

v. Weast, 546 U.S. 49, 51 (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); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents.

School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S.

359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony and evidence adduced at the hearing the District has failed to provide FAPE for the 2014-2015 school year based on procedural and substantive deprivations in that they failed to meet ’s unique academic and social needs specifically that the DOE failed to review and consider evaluative data, chose to include information in the IEP which supported an program and highlighted ’s strengths and did not take in to consideration the input of the IEP participants who actually knew and worked with and offered a program that was available rather then met ’s unique needs.

The State Review Office (“SRO) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”.

(Rowley, 458 U.S. at 203)

The testimony and documentary evidence clearly support the Parents position that had a serious problem with in that her was , even to her own family. Although she is her problems affect her both academically and socially. I credit the testimony of Ms. , her teacher when she stated that was having children and needed a and advised the CSE team of this at the IEP meeting. Further, Ms. was clear that the serious problems that had affected her not only as it affects her ability to obtain skills. The Parents also advocated for their child at the IEP meeting and insisted that needed a small rich classroom environment. I credit the testimony and documentary evidence submitted by the Parents. It appears that the CSE relied on the test scores contained in the Evaluation (Ex. 4) and chose to ignore the caveat at the end of the summary which advises that will experience progress in all areas given the appropriate . Those are set forth in the treatment plan and recommendations which advise that “..it is critical that she receive

”. Dr. credibly

testified that the test scores can be misleading in view of ’s severe issues.

In addition, the CSE relied on minute Classroom Observation (Ex. 9) to determine that did not have social issues. I credit the testimony of the Parent when she testified they were told at the IEP meeting that if any other program was recommended by the CSE team that they would get in trouble with their supervisors. It is clear from the record that the program recommended was not which would meet ’s unique academic and social needs but rather what was available thereby depriving of FAPE. In addition, the IEP created for was for the for a child who was in and had not yet been in thereby not obtaining the academic skills taught in that . It is the testimony of Ms. , the DOE representative at the IEP meeting, that this decision was based solely on age and DOE policy and not the individual needs of the student. I find that the decision made by the CSE for an classroom and to place the student in the was predetermined based on what was available and DOE policy rather than the unique academic and social needs of the student thereby denying the student FAPE, impeding the Parents opportunity to participate in the decision making process and causing a deprivation of educational benefit to the student.

The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original)

A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v. Board of Education of Hyde Park., 459 F3d 356, at 364-65. I find the parental placement as issue had been reasonably calculated to confer an education benefit to the student. I find that the testimony, and evidence submitted by the Parent support this finding. The testimony supported the Parents position that the student is progressing academically and socially and that the school has crafted an individualized program that meets the student’s academic and social needs. The DOE did not address the curriculum at in a substantive way.

The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. I find that the Parent cooperated fully with the IEP process. They provided the CSE with the privately obtained

Evaluation and participated in the IEP meeting and clearly voiced their disagreement with the program and placing in the . However, in spite of this disagreement they visited the recommended placement and advised the CSE in a timely fashion, in writing, of their disagreement and the reasons for it and received no reply.

The Parents signed a contract in April for which was well before the IEP meeting and made a down payment and a payment in May of the tuition. Though the down payment is referred to as non-refundable it is clear from the school contract (Ex. C) that the Parent could get all payments, including the deposit back if they accepted a public school placement prior to September. I credit the testimony of the Parent when she stated that she would have accepted a public school placement if an appropriate program would have been offered. In view of the foregoing I find that the equities favor the position of the Parent.

The tuition for the 2014-2015 school year at is . Documentation submitted by the Parent (Ex. D & E) show that the tuition has been paid in full by the

Parent.

ORDER

Therefore, it is hereby ordered that that the New York City Department of Education reimburse the Parents in the amount of for tuition at the for the 2014-2015 school year within 60 days of the date of this Order

Dated: April 22, 2015

, 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 ON JANUARY 14, 2015

1. Hearing request, dated 11/5/14, 2 pages District

2. IEP, dated 6/16/14, 12 pages District

3. School location letter, dated 6/16/14, 1 page District

4. Evaluation, dated 1/15/14, 10 pages District

5. Annual Review Plan, dated 6/12/14, 4 pages District

6. Evaluation, dated 12/2/13, 6 pages District

7. Progress Report, dated 6/12/14, 2 pages District

8. Evaluation, dated 11/3/13, 3 pages District

9. Classroom Observation, dated 6/13/14, 1 page District

A. Parent Letter and fax receipt, dated 8/20/14, 2 pages Parent

B. Parent Letter and fax receipt, dated 7/7/14, 3 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 30, 2015

C. Contract, dated 4/24/15, 4 pages Parent

D. Statement of Payment, dated 1/29/15, 2 pages Parent

E. Proof of Payment to , 4/14-12/14, 5 pages Parent

F. Program Description, undated, 1 page Parent

G. Mid-Year Progress Report, 2014-15, 8 pages Parent

H. Mid-Year Report, 2014-15, 3 pages Parent

I. Mid-Year Report, 2014-15, 4 pages Parent

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page IHO