New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 163652

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 28, 2016

December 16, 2016

February 10, 2017

April 5, 2017

May 15, 2017

Actual Record Closed Date: June 21, 2017

Hearing Officer: Israel S. Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2016

Attorney (Via Telephone) — Parents

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2016

Attorney (Via Telephone) — Parents

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2017

Attorney (Via Telephone) — Parents

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2017

Attorney — Parents

Observing — Parents

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2017

Attorney — Parents

Parents

(Via Telephone) — Parents

(Via Telephone) — Parents

District Representative — DOE

(Via Telephone) — DOE

Background and Positions of the Parties — DOE

On October 13, 2016, following a recusal by another Impartial Hearing Officer, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer (IHO), pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. 794, in the matter of I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: November 28, 2016 (prehearing conference), December 16, 2016, February 10, 2017 (prehearing conference), April 5, 2017 and May 15, 2017. Extensions of the compliance date were granted by this IHO due to availability of witnesses, to allow time for receipt of the last transcript, time for receipt of the closing documents from both parties, as well as time for writing the decision, after the close of the record.

This is a dispute with regard to the educational program and placement for for the 2016=17 school year. The parent view is that the DOE did not develop an appropriate IEP, did not offer a placement or provide a copy of the IEP until months into the current school year and the program offered, an , was not appropriate for The parents further maintain that the unilateral placement of at , a private school, was appropriate as the program there addressed ’s learning needs. The parents are seeking direct payment for the cost of a portion of the school day at , a school which includes ; i.e., for the portion of the school day when do not occur. The parents believe that the equities favor their side in this dispute. IHO Exhibit II. The Department of Education’s view is that it developed an appropriate IEP and provided an appropriate placement. The

IEP and placement, the DOE believes, were sent out on time. The DOE has raised a number of concerns about the adequacy of the program at and believes that the equities favor the DOE here. IHO Exhibit I.

Findings of Fact and Conclusions of Law

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” B oard of Education v. Rowley, 458 U.S.

176, at 198. Clarifying how much benefit is required to achieve FAPE, in Cerra v.

Paw ling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing W alczak, 142 F.3d at 130 and M rs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. In a recent decision, the United States Supreme Court clarified that an IEP must be “reasonably calculated to enable a child to make progress in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017).

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies - (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE or (c) caused a deprivation of educational benefits. 20 USC 1415 [f][3][E][ii]. As stated in M atrejek v. Brew ster Cent. School Dist. 471 F. Supp. 2d 415, 419 (SDNY 2007) aff’d 2008 WL 3852180 (2d Cir. Aug. 19, 2008), procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP constitute denial of FAPE.

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.”

4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Departm ent of Education of M assachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist.

Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

One significant issue in dispute here concerns whether the parents were furnished with a copy of the IEP, recommending an , and the form offering a placement, at the appropriate time; i.e., on time for the 2016-17 school year, or whether the parents did not receive it until months later. The testified that based on what was recorded in SESIS, the DOE’s special education document tracking system, the IEP and the document specifying the placement were mailed out. It would appear that if this did occur, it was done by clerical support, as the had no direct knowledge of these important documents having been mailed out. Tr. 47-48. 88. I cannot say if these documents were actually mailed and got lost in the mail or they were never sent out at all but it does appear that the parents never received them. The DOE was notified repeatedly that the parents of had not received these documents, See Exhibits A, C and E. Exhibit 1, which is the DOE’s own SESIS events log, shows that one of these notifications was uploaded in to the DOE’s SESIS system on September 6, 2016 and it also shows that the “package,” presumably including both the IEP and placement notification, were sent out on November 28, 2016, the latter date being when parent counsel acknowledge that these important documents were finally furnished to the parents, through parent counsel. IHO Exhibit II = 6. The DOE has the burden of proof and it failed to establish conclusively that these vital documents were sent. I find the parent’s view, that they were not received, entirely credible. And even if they were sent and the parent did not receive them, the DOE had notice that they were not received and failed to correct the situation by sending them out again. Not having these documents prevented the parents from examining them and having input so that any corrections could be made, if needed. Cutting the parents out of the process in this way is a violation of provision of a free and appropriate education (FAPE) in an of itself. Parents “have the right to obtain relevant information in a timely fashion about the DOE’s proposed placement of their child, so as to enable them to assess and comment on the placement.

…a parent’s IDEA right to participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school.” F.B. and E.B. individually and on behalf of LB v. New Y ork City D.O.E., 132 F. Supp. 3d 522 (2015). It is also clear from the case law, see for example, RE v. New Y ork City Department of Education, 694 F.3d 167 (2d Cir. 2012), that the parents have a right to rely on what is in the IEP in reaching their determination of whether the offered program is appropriate for their child.

Without the IEP or placement provided to them, it is clear that we have a procedural violation that has reached the level of serious violation that denies parental involvement so that this constitutes a denial of provision of a FAPE.

Even if the IEP had been provided, I find the DOE’s position that an would have provided an appropriate education for unconvincing. The DOE’s explained that she thought that the program could address ’s needs. But the DOE failed to address, through this program recommendation, what in the estimation of those who know and have worked with are important aspects of his educational needs; i.e, . There was credible testimony that presents “ ,” even in the class he has been attending at , containing only . Tr. 270. This same witness, who is knowledgable regarding how has performed at , opined that ’s has major issues with regard to and that the IEP and program offered, the program, failed to take these aspects of into account.

Tr. 273-275. This witness expressed concern that a (like the recommended by the DOE) would be for Ibid. The DOE’s acknowledged that “ ” But she did not think the severity of this issue would preclude and being successful in an , such as was recommended by the DOE.

Tr. 93. The DOE’s stated that she believed that made only “minimal progress” even in the that he has been attending. Tr. 99.

needed a program and to address

, even with the there. Tr. 275. The DOE ’s view that are not serious with regard to impacting his classroom performance, Tr. 93, appears inconsistent with the view of those who know him. Had the DOE conducted a new or evaluation of that was found to support the ’s views, which was not done and was not found, then we would have a different situation here. The evaluation in evidence, conducted back in December 2015, Exhibit 2, did not address the issues and did not include a or assessment. There was one in evidence, done 1 ½ years ago, in evidence, which did note

“ .” The report quoted the teacher who emphasized issue, his need for and Exhibit 3. With the facts as they were brought forward in this hearing, I fail to see on what basis the DOE concluded that this student who even the DOE’s believed made only minimal progress in the at would do better in a , as recommended by the DOE. The DOE has not shown that the program recommended on the IEP, the program, would have provided a FAPE for Thus, the DOE has not met its Prong 1 burden under Burlington/ Carter.

At , has been placed this year in a of

, allowing for and for

. Tr. 225-226, 270, 280. A was utilized to address . Tr. 227. Instructional techniques to assist included

. Tr. 228.

issues were addressed through as well as in other ways. Tr. 229. Strategies have been utilized at to target his needs in , Tr. 235-243. He has been given . Tr. 238. has made progress in , such as improving

, Tr. 246 and . Tr. 248. was also targeted and this has resulted in . Tr. 250- 257. was targeted and has been instructed for . Tr. 259. He has achieved goals and has been able to be mainstreamed with the support of a teacher. Tr. 263-264. has at , Tr. 207 and he had a to . Tr. 264-265. The parents have shown that the educational program at addresses ’s unique learning needs. Thus, the parents have met their Prong 2 burden under Burlington/ Carter.

The parents appear to have been cooperative and I see no basis from any of the evidence to diminish funding for the unilateral placement on the basis of equitable considerations. Prong 3 of the B urlington/Carter criteria favors the parents.

With the DOE having failed to satisfy its Prong 1 Burden of showing that it provided a FAPE, with the parents having satisfied their burden of showing that the unilateral placement addresses ’s unique needs, and with the equitable considerations supporting the parents, I am ordering that the DOE pay for ’s attendance at , minus the portion of the day devoted to religious instruction or religious activities.

The case here involves a situation where the parents have an income that would not be sufficient to pay the tuition as . Tuition is per year.

Exhibits H, J. The parents’ federal tax return and testimony demonstrated that the parents have very limited income, such that paying this tuition would be highly problematic for them. Exhibit K, Tr. 173-175.

In such a situation, where parents lack the funds to pay up front, a school district must pay the monies owed, assuming that the parent’s claim is meritorious with regard to the three Burlington factors. This conclusion is based upon the following case law.

In M iener v. M issouri, 800 F.2d 749 (8th Cir. 1986), 753, the court declared, “we are confident that Congress did not intend the child’s entitlement to a free education to turn upon her parent’s ability to ‘front’ its costs.” So the fact that the situation is not one of reimbursement should not be the important factor, eliminating the ability of a parent to obtain financial relief.

In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) at 805, the court followed similar reasoning:

By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception… Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.

Therefore, after reimbursing any funds already expended by the parent towards the cost of , the DOE shall pay the costs of ’s attendance at the directly to the school, after subtracting out the portion to cover religious education and activities.

That attends a private school, a school whose program includes religious instruction and activities, should not pose a problem with regard to the DOE funding the nonreligious part of the school day; i.e. by far most of the day. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive religious instruction in …[the private school].” Application of a Child with a Disability, Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their disabled child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a sectarian school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M.

v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills

Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for religious “worship, instruction, or proselytization.” This rule prohibiting use of federal funds to pay for worship, instruction or proselytization is from 34 CFR

76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Hearing Officer’s Findings of Fact and Decision Case No. 150753 14 Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid.

Zobrest did allow public funding of a sign-language interpreter at a Roman Catholic

School.

Consistent with this case law, the fact that is a sectarian program in which the program contains time for religious prayer and instruction presents no obstacle to funding of special education services there. Funding of the part of the day devoted to prayer and/ or religious instruction, however, presents a problem with regard to using public funds to promote the establishment of a particular religion, which consistent with

Footnote 7 of Zobrest, is prohibited as a constitutional violation. The activities that are of a religious nature at constitute of the school time. Tr. 195. Thus of the time is spent with nonreligious education. Therefore, the DOE is responsible to cover of the cost, or .

The parents’ hearing request and amended hearing request asked for . The DOE’s stated that “

” Tr. 47.

This statement was made in the context of explaining what occurred at an IEP Meeting, at which the IEP team ultimately did not recommend a nonpublic school. But with my now ordering that that DOE should pay for , a nonpublic school that is at some distance from ’s , it appears to me that the DOE does need to provide so that , a student with issues regarding , as discussed above, can .

Order

The DOE shall reimburse the parent for any funds paid for the program at for for the 2016-17 school year. Once this amount is confirmed, the DOE shall pay the remainder of the total of directly to the school, . This shall be completed within 45 days of receipt of this Order. The DOE shall also provide

.

Dated: June 23, 2017

ISRAEL S. WAHRMAN, ESQ.

Impartial Hearing Officer ISW:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Due Process Report, 10/7/16, 2 pages

B Amended Due Process Request, 12/30/16, 5 pages

C Ten-Day Notice with Receipt, 8/23/16, 3 pages

D DOE Determination Report, 9/14/16, 2 pages

E Correspondence with DOE, 9/14/16, 9/20/16, 3 pages

F Correspondence with DOE Representative for IEP

Placement, 11/28/16, 1 page

G Schedule for Class , 2016-2017, 1 page

H Contract, 8/9/16, 2 pages

I Class Schedule, 2016-2017, 1 page

J Affidavit, 4/5/17, 1 page

K Federal Tax Return, 2016, 2 pages

L Report Card, 2016-2017, 5 pages

M Forms, 8/1/16, 2 pages

N Testimony Affidavit, 5/5/17, 5 pages

DEPARTMENT OF EDUCATION

1 Events, various dates, 8 pages

2 , 12/23/15, 10 pages

3 , 1/5/16, 2 pages

4 , 1/18/16, 6 pages

5 , 1/27/16, 5 pages

6 Meeting Notice Committee on Special Education, 3/15/16, 2 pages

7 Meeting Notice Committee on Special Education, 3/22/16, 2 pages

8 Meeting Notice Committee on Special Education, 4/8/16, 2 pages

9 Meeting Notice Committee on Special Education, 4/22/16, 2 pages

10 IEP w/Attendance Page, 5/19/16, 14 pages

11 Meeting Minutes, 5/19/16, 6 pages

12 Teacher Report, 5/19/16, 5 pages

13 Prior Written Notice (Notice of Recommendation), 5/31/16, 3 pages

14 School Location Letter, 5/31/16, 1 page

IMPARTIAL HEARING OFFICER

I Closing for the Department of Education, undated, 10 pages II Parents’ Closing Brief, 6/12/17, 29 pages