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: April 14, 2015

May 27, 2015

Actual Record Closed Date: July 17, 2015

Hearing Officer: Amy Lynne Itzla, Esq.

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

Esq. Attorney — Parents

Mother — Parents

Father — Parents

District Representative CSE Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2013

Esq. Attorney — Parents

Mother — Parents

Teacher — Parents

(via telephone)

Director — Parents

(via telephone)

District Representative CSE Region — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of for the 2014-2015 school year. The hearing was convened at the written request of ’s parents (the “Parents”) by letter dated November 18, 2014. (Exhibit A)

Hearings were held on April 14, 2015, and May 27, 2015, at the offices of the New York City Department of Education (the “DOE”) located at . A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

is an old who had attended a public school

program through the 2013-2014 school year. He has been diagnosed with

, , and

, , and .

(Exhibit F). During the 2013-2014 school year, the Parents privately arranged and funded a psychoeducational assessment of Based on the findings and recommendations contained in the assessment report, by letter dated February 27, 2014, the Parents requested that the DOE conduct an evaluation of in order to determine the services he required. (Exhibit E) The DOE’s Committee on Special Education (“CSE”) convened on or about June 9, 2014, and developed an Individualized Education Program (“IEP”), which classified as a student with a disability of “ ” and recommended

(“ ”) for periods per week with some related services. By letter dated June 23, 2014, the Parents expressed their concerns and disagreement with the IEP and the recommendation of the CSE. (Exhibit C) They requested the opportunity to further discuss their concerns with the DOE. The CSE developed a second IEP, dated July 18, 2014. (Exhibit K) The CSE’s recommendation, contained in the IEP, was changed to placement in an classroom for periods per day, along with the related services of per week for a -minute session and group per week for a -minute session. By letter dated August 19, 2014, the Parents responded to the revised IEP and explained the reasons for their disagreement; and they notified the DOE that they would be unilaterally placing at the (“ ”) at the beginning of the 2014-2015 school year, and seeking reimbursement from the DOE. (Exhibit B) By letter dated November 18, 2014, the Parents requested this impartial hearing. (Exhibit A)

As discussed in further detail below, the DOE did not present any testimony or other evidence with regard to the CSE process, the CSE’s recommendation, or the content of the IEP. Given the absence of any position taken by the DOE in this case, as well as the absence of any testimony or further evidence related to the IEP, it is given little weight.

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE chose not to assert a position in this case. As previously noted, there was no documentary evidence, witness testimony, or even oral argument presented by the DOE. (T. 5)1 The DOE did not make an opening statement or a closing argument, although provided the opportunity to do so. (T. 5, 83) The DOE did not object to any of the documents presented by the Parents or cross-examine the Parents’ three witnesses, although provided the opportunity to do so. (T. 4, 36, 43, 71, 78)

References to pages of the transcript will be indicated as “T.__,” with the page number cited.

The DOE’s appearance and participation in the impartial hearing, without defending its CSE’s process or the content of the IEP, are the equivalent of conceding the Parents’ assertion that the DOE failed to offer a Free and Appropriate Public Education (“FAPE”) to for the 2014-2015 school year. The DOE did not even offer a statement on the record, as a token claim that it had offered a FAPE.

When the DOE’s representative chose not to make a closing argument, the undersigned sought to clarify its position with regard to the Parents’ unilateral placement.

The DOE’s representative was asked to confirm that it “is not presenting a challenge during this hearing to the Parents’ unilateral placement.” The response was, “That is correct.” The DOE voiced no disagreement with, or opposition to, the Parents’ placement.

The appropriateness of the placement was not an issue raised by the DOE.

Clearly, given the DOE’s virtual silence throughout the hearing, there were no equitable considerations raised that would serve to diminish or bar the Parents’ tuition reimbursement request.

THE PARENTS’ CASE

is ’s mother. She described his strengths and weaknesses. She explained that he struggles with , as a result of and , and due to his . attended , his local public school, from through . Although his school experience started out , in he began , which had effect. In , he was . In , in addition to ’s difficulties, the Parents discussed ’s and possible issues with the school. At that time, the Parents also received a call from the school describing as “ ” At that point, the Parents sought the assistance of , who discussed ’s needs with the school and the accommodations he would need while the Parents pursued a further determination of ’s difficulties. (T. 8-14)

The Parents arranged for a psychoeducational assessment. (Exhibit F) The assessment uncovered issues, including and . It also reported that was . The psychologist strongly recommended a program in a classroom with a teacher to student ratio. When the Parents shared the assessment result with the DOE, they did not receive a productive response and, instead, was left in the same classroom with no additional supports. In February 2014, the Parents formally requested that the DOE take the necessary steps to provide with services. The Parents attended an IEP meeting in June 2014. When the CSE recommended , which would be provided either by or , the Parents expressed that requires a setting and should not continue in a class of students. (Exhibit E; T. 14- 19) As a result of the Parents’ disagreement with the recommendation, as they documented in writing, the CSE conducted another IEP meeting. (Exhibit C) There were no participants, other than the Parents, who knew

The CSE’s new recommendation was for placement in an class, which was still a classroom, with the addition of a teacher. The Parents expressed their disagreement with the recommendation. (Exhibit B; T. 20-27) stated that it would have been preferable for the DOE to have recommended an appropriate program for so he could have remained in the school. Although he had , he was otherwise and . is a child . (T.27-29)

The Parents were referred to by Dr. , the psychologist who had conducted the psychoeducational assessment, since she thought its educational program would address ’s needs. has been doing much better during this school year while attending . The classes are , with approximately students. is in an for , and , as well as for . gets the he needs. In addition to addressing his needs, the school’s culture and emphasis on have helped improve ’s . As a result, he can move forward in improving his academics. He is able to and . The allows to be taught with the methods necessary to allow progress in his deficit areas. The tuition for for the 2014-2015 school year is , and the Parents have made payment in full. (T. 31-36)

has been a head teacher at for 13 years and is ’s homeroom teacher for the 2014-2015 school year. She explained that ’s weaknesses include , , , , , and . There are students in the class ranging from years old.

There is also an assistant teacher in the classroom. All students in the class have been diagnosed with and many also struggle with and , similar to Ms. described the supports that requires in the classroom. (T. 45-52) For , is in a group of students with similar needs which is taught by his assistant teacher. Ms. described ’s deficit areas in and the methods and strategies used to work with him.

has progressed in his skills. (T.53- 57) Ms. is ’s teacher with students. She described ’s deficit areas in , the manner in which they are addressed and the strategies used to support him. Ms. has observed progress in ’s skills. (T. 58-61)

Ms. also described ’s needs in the area of , the support he requires and the manner in which he is taught. She has seen improvement in his skills since the beginning of the school year. (T. 62-64) Ms. explained the way ’s challenges with are supported and the progress she has seen.

Finally, Ms. described the supports that are used to improve ’s issues. receives a week and a week at . (T.66-69)

is the Director of the school at . She was previously a teacher at . Ms. explained that is a through school for children with . It is a school. There are a total of students, with students in the school, from through . The class size is typically to students with teachers. Ms. described the professional development programs in which the faculty participates. (T. 73-78)

FINDINGS OF FACT AND CONCLUSIONS 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 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]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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 v.

Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has not contested the Parents’ claim that it failed to offer a FAPE to for the 2014-2015 school year. Similarly, the DOE has not asserted that it offered a FAPE to Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.

The Parents have the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) 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. 7 [1993])

I find that the unilateral placement by the Parents met ’s special education needs for the 2014-2015 school year. It has been persuasively established by Ms. , Ms. , and Ms. , as the testimony cited herein documents, that placement at was appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The program was reasonably calculated to allow to make meaningful progress and to address ’s individual needs. In fact, has already made meaningful progress through his participation in the program. ’s environment and and provided opportunities for the tailoring of material and strategies to meet ’s individual needs. In addition, his development has improved as a result of ’s program.

The DOE offered no testimony or other evidence, or even a statement or argument, challenging the appropriateness of the program. I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

Finally, the DOE did not offer any equitable consideration that would preclude an order in favor of the Parents. The record reflects the Parents’ repeated correspondence with the DOE in an effort to obtain the special education services required. The

Parents attended the CSE meetings to plan for the 2014-2015 school year. Despite the Parents’ efforts, the DOE failed in its obligations to The DOE shall reimburse the Parents for the tuition they paid for to attend for the 2014-2015 school year.

Dated: July 23, 2015

AMY LYNNE ITZLA, 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.

DOCUMENTS ENTERED INTO THE RECORD

Parents’ Exhibits

A. Hearing Request, 11/18/14, 3 pages

B. Parents letter to CSE and receipt, 8/19/14, 3 pages

C. Parents letter to Ms. ( ), 6/23/14, 2 pages

D. Progress Note- Dr. , 4/23/14, 1 page

E. Parent referral letter to , 2/27/14, 1 page

F. Psychoeducational Assessment, 1/14-2/14, 22 pages

G. Tuition Contract, 4/23/14, 2 pages

H. Statement of Payment, 3/17/15, 1 page

I. Proof of Payment, 4/14-2/15, 10 pages

J. Progress Report, 2014-2015, 20 pages

K. IEP, 7/18/14, 14 pages