Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164040

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 30, 2017

Actual Record Closed Date: April 5, 2017

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2017

Attorney — Parents

Mother — Parents

Parents

Chairperson Designee, — DOE

On October 25, 2016, I was designated by the New York City Department of Education (“DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of and the Parent through her attorney who initiated this hearing on October 25, 2016 and amended her complaint on January 5, 2017. The hearing commenced and concluded on March 30. The hearing was requested by the Parent through her attorney to implement the amended Individualized Education Program ("IEP") dated October 11, 2016, as the recommendation of the Committee on Special Education ("CSE") was a NYS Education Dept. ("SED") approved Non-Public School ("NPS"). The Parent seeks an order to place on the CMR list for direct funding at or to obtain funding for the unilateral placement at the (" ") for the 2016-2017 school year (Exh. A at 1, 5).

The Parent alleged that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2016-2017 school year by the failure to implement the October 11, 2016 IEP and the CSE recommendation to place in a NYS Education

Dept. approved NPS and further alleged that the proposed IEP that recommended a was flawed both procedurally and substantively

(Exh. A at 3). is a school for

(Tr.

at 18).

The parties moved to extend the compliance dates during the course of the hearing. 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 to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (Tr. at 13;Exhs. I,II). The last compliance date was extended as a result of the request for post-hearing submissions (Tr. at 62). The parent's representative submitted her post-hearing brief on April 5, 2017 and the district's representative declined to submit a post-hearing statement. Accordingly, the decision due date is April 19, 2017. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

is an who is currently in the at . His classification is not in dispute (Tr. at 41). The CSE developed a draft IEP on June 9, 2016 and amended and made final the IEP on October 6, 2016 per the events log (Exh. 17 at 1).

The CSE classified with and recommended that he be placed in approved NYSED-approved NPS - Day (Exh. D at 16) and receive related services of (Exh. 1 at 11).

attended from through in a and he

received from through and he was placed in for the for the 2015- 2016 school year (Tr. at 41-42).

When was on June 17 and 24, 2015, a was conducted and the results were noted in the June 9, 2016 IEP as follows:

"

" (Exh. D at 5).

On May 3, 2016, an was conducted on at the in a with a student to staff ratio of the and was classified as and mandated to receive "

" (Exh. 13 at 1). The evaluator

recommended "

" (Exh. 13

at 8).

On June 9, 2016, the CSE met and created a draft IEP and classified as and recommended be placed in and receive related services (Exh. 3 at 6). The IEP noted that

(Exh. 1 at 21).

On July 18, 2016, , memorialized her diagnosis of with and his past diagnosis of (Exh. F at 1). Dr. stated that

"

"(Id.).

On July 26, 2016, the Parent wrote to the Chairperson of CSE to alert her that her son was diagnosed with and his doctor recommended against a placement in and as mandated on the June 9, 2016 IEP and so she placed her son at and requested a referral to the CBST for a placement in a NYS approved NPS (Exh. E at 1).

On October 6, 2016, the draft June 9, 2016 IEP was finalized per the events log

(Exh. 17 at 1) and CSE again classified with and recommended that he be placed in approved NYSED-approved NPS - Day (Exh. D at 16).

THE DISTRICT'S CASE

The District's presented the testimony of , who rested on the evidence and did not present a case (Tr. at 15).

THE PARENT'S CASE

The Parent's case was presented by the Parent and the who testified in support of the Parent's claim for reimbursement/prospective payment for the unilateral placement at for the 2016-2017 school year.

The of , who held several Master’s degrees in , and , employed by for years, testified that she was a for years and the for years (Tr. at 17). She described as a NYS approved NPS school is a school for (Tr. at 18), that provides and utilized (Tr. at 23). She noted that had (Tr. at 32). She stated that classes had a staff to student ratio of or . She noted that there were with a student to staff ratio of for (Exh. G at 1; Tr. at 28).

The explained that the had students for grades and that provided from NYS certified and licensed providers and that the program had including (Tr. at 23;38). She explained that there were licensed and certified and a (Tr. at 38). She described as a student who struggled with who required (Tr. at 19). She noted that (Tr. at 21), that and he received to address (Tr. at 21), and that his teachers used techniques such as and (Tr. at 22). She stressed that and that benefited from (Tr. at 23). She noted that his had as (Tr. at 19;25;34). She opined that he was grouped with students who were (Tr. at 20). She noted that he was placed in and that the (Tr. at 22). She opined that made slow and steady progress academically, socially and emotionally (Tr. at 25). She recalled that she received an amended IEP in October 2016 for and that the recommended placement was a NYS approved NPS (Tr. at 27).

On cross the stressed that the helped and that he received and that he used as well as to address (Tr. at

32), and that (Tr. at 34).

She explained that 's were addressed by the (Tr. at 36). She noted that 's provider help and that the and addressed (Tr. at 37).

The Parent testified that she told her son received special education services in an from through in an and she was frequently told that and she opined that he did not progress in (Tr. at 44-45). She recalled that she participated in the June 9, 2016 IEP meeting and that she told the CSE team that her son would struggled in the recommended (Tr. at 49), and that she presented the CSE with her son's DOE-approved 's evaluation and that she requested another CSE meeting (Tr. at 48). She further recalled that the staff at told her in October 2016 that they received her son's amended IEP that recommended a NYS-approved NPS and that she wanted her son to continue at for the 2016-2017 school year (Tr. at 51). The Parent presented proof of payment of for the tuition of for the 2016-2017 (Exh. H) and stated that her income was similar to the amount in her 2014 tax return (Exh. I) and she was unable to pay the tuition (Tr. at

50).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. Section 1400[d][1][A]).(Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, 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. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see WalczMF v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). 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 Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy” or “guarantee any particular level of education" (WalczMF v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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)."

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The Parent alleged that the DOE failed to provide FAPE for the 2016-2017 school year on procedural grounds: the June 9, 2016 IEP was not reasonably calculated to offer the student an opportunity to make academic, social or emotional progress and resulted in the denial of FAPE; the amended June 9, 2016 IEP was developed to recommend a NYS approved NPS and the DOE did not implement the IEP (Exhs. A at 2; IV at 3). I agree and find the uncontested testimony established that the June 9, 2016 IEP was amended and made final on October 6, 2016 to recommend a NYS approved NPS and I find the failure to implement the October 6, 2016 amended IEP was a denial of FAPE.

Therefore, I find the district failed to establish that FAPE was provided during the 2016-2017 school year as I find CSE failed to offer an appropriate program and placement for the 2016-2017 school year.

The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the Parent’s claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The

Parent must prove that the student will receive an appropriate educational benefit from the program at . The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v.

Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that “to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They 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.).

I find 's special education needs were met by the program with and . The Parent's attorney noted that because the students were placed in classes based on as well as and because was placed with he progressed (Exh. IV 4). I credit the testimony of the that was addressed by the and the and (Tr. at 36-37). I find the teacher used techniques such as to address (Tr. at 21). I find that the provided and as a result (Id.). I find that the addressed and and I find the . I credit the testimony of the and I find that the were very important for Case No. 164040 because his teachers could monitor his progress and provide the to . I find the special education techniques that were used at met 's specific special education deficits in and I find that the to help him and enabled to progress.

I find the addressed . I find the and and the (Tr. at 30)

addressed . I credit the 's testimony that regarding 's improved and I credit the Director's testimony that required the ratio so that he received . I credit her testimony regarding the and and I find these supports addressed . I credit the testimony of the and find that progressed academically, socially and emotionally.

Testimony adduced at the hearing clearly demonstrates that provided a environment. The parent asserted that was appropriate "for the 2016-2017 school year because of his success there in the prior school year and the school’s ability to meet both his academic and social emotional needs

(T. 49-50)" and noted "the progress that he has made there (Exs. 8,9,10)"(Exh. IV at 4).

I credit the testimony of the and I find that progressed academically, socially and emotionally. I find 's teachers met his needs in with the special education strategies. I find the ratio in met his unique needs. I further supported 's special education needs in light of his issues and I find he improved in . I find was grouped appropriately for and at (Tr. at 18). I find that ’s academic, social and emotional needs were met at with the and the and the and the and I find progressed academically, socially and emotionally. Therefore, I find that the Parent met her burden regarding the unilateral placement of at for the 2016-2017 school year and the program at met ’s unique special education needs.

The third prong of the test for tuition reimbursement is whether the equities favor the Parent's position. I find that the parent established the third prong. Tuition reimbursement to be reduced or denied if the Parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section

1412(a)(10)(c)(iii). I find the Parent informed the CSE that she intended to enroll at for the 2016-2017 school year when no appropriate program/placement was offered (Exh. E) and after the most recent CSE meetings and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the Parent's claim for reimbursement. In this case, the Parent fully cooperated with the DOE to the best of her ability. I credit the Parent's testimony and find that she would have considered a public school placement. The Parent's attorney argued that the Parent "fully cooperated with the DOE by attending meetings, communicating with the CSE and making her concerns known. In addition, statutory notice pursuant to 20 U.S.C.

1412(a)(10)(C)(iii)(I)(bb) was timely provided (Ex. C)"( Exh. IV at 6). I agree and find that the equities favor the Parent's position.

I find that the Parent is requested partial reimbursement and partial prospective funding for the cost of ’s attendance at . In Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), the Northern District of New York stated that prospective payment to a nonpublic school under IDEA where FAPE was not provided would be a proper remedy if the parent showed that he or she was unable to front the cost of the private school. In Connors, the court noted that a result to the contrary would result in a severe disparate impact on poor children. Id at 804. I credit the Parent's testimony and I find the Parent lacked the financial resources to pay the tuition for the 2016-2017 school year. I find the Parent meets the Connors criteria for prospective funding for the cost of the 2015-2016 tuition.

ORDER

Therefore, it is hereby ordered that the Department of Education provide tuition reimbursement of and prospective payment of (for the total tuition of ) for the 2016-2017 school year upon proof of attendance and proof of payment (the evidence of such payment must be acceptable to the Department of Education) for within thirty days of the submission of proof of attendance.

Dated: April 11, 2017

LINDA S. AGOSTON, ESQ. LA: Impartial Hearing Officer

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 ON MARCH 30, 2017

1 IEP, 6/9/16, 24 pp. District

2 Notice of IEP Meeting, 6/2/16, 6 pp. District

3 Minutes, 6/9/16, 6 pp. District

4 Prior Written Notice, 6/9/16, 4 pp. District

5 Report, 6/24/16, 2 pp. District

6 , 4/7/16, 1 p. District

7 , 6/21/16, 1 p. District

8 End of Year Progress Report, 6/2016, 5 pp. District

9 Progress Report, 2015-2016, 4 pp. District

10 Progress Report, 6/2016, 3 pp. District

11 , 6/9/16, 6 pp. District

12 Memorandum, 6/7/16, 5 pp. District

13 , 5/3/16, 10 pp. District

14 , 5/3/16, 1 p. District

15 Report, 6/7/16, 2 pp. District

16 School Location Letter, 6/9/16, 3 pp. District

17 Events Log, various dates, 13 pp. District

A Amended Request for Impartial Hearing, 1/5/17, 6 pp. Parent

B Request for Impartial Hearing, 10/25/16, 5 pp. Parent

C Notice, 8/22/16, 3 pp. Parent

D IEP, 6/9/16, 17 pp. Parent

E Parent Letter, 6/26/16/, 3 pp. Parent

F Letter from , 7/19/16, 2 pp. Parent

G Student Tuition Contract, 8/20/16, 1 p. Parent

H Tuition Affidavit, 1/5/17, 1 p. Parent

I Individual Tax Return, 4/7/15, 2 pp. Parent

J Student Schedule,undated, 1 p. Parent

K Attendance Record, 2016-2017, 1 p. Parent

I Decision on Extension, 12/30/16, 1 p. IHO

II Subpoena Duces Tecum, 3/16/17, 2 p. IHO

III Decision on Extension, 12/30/16, 1 p. IHO

POST HEARING SUBMISSION

IV P arent's C losing Statement, 4/5/17 7 pp. IHO