NY IHO #164433: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 164433

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 26, 2017

May 23, 2017

July 11, 2017

Actual Record Closed Date: October 30, 2017

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2017

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2017

Attorney — Parents

Mother — Parents

Attorney — DOE

DOE

(via telelphone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2017

Attorney — Parents

Mother — Parents

Parents

(via telephone)

Attorney — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated November 14, 2016. (Parent Exhibit A) A hearing was held on April 26, 2017, May 23, 2017, and July 11, 2017, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing 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)] The documentation of these extensions has been entered into the record as IHO Exhibits i through viii.

BACKGROUND

is a who attended for the

2016-2017 school year. He has diagnoses of has been classified by the DOE’s Committee on Special Education (“CSE”) as The CSE convened in preparation for the 2016-2017 school year on March 7, 2016, and developed an Individualized Education Program (“IEP”) for The CSE recommended a program

for the 2016-2017 school year, which included:

, , -

. (DOE Exhibit A) By letter dated June 22, 2016, the DOE informed the Parent that the placement identified for for the 2016-2017 school year was . (DOE Exhibit E)

By letter dated August 23, 2016, the Parent expressed her disagreement with the IEP, the CSE’s recommendation, and the placement offered. (Parent Exhibit E) She noted that the placement notice was received after the end of the school year and that, since the school was closed for the summer, she would visit the school when it opens in September. She notified the DOE of her intent to place at and seek tuition reimbursement if there was not an appropriate IEP and placement provided. By letter dated September 20, 2016, the Parent sent a follow-up letter to the DOE, subsequent to her visit to the proposed school. (Parent Exhibit F) She reiterated her concerns related to the IEP, and to the . The Parent described her visit to , and her observation of the program recommended. She provided details to support her rejection of the program and placement, and stated her intent to continue ’s placement at .

By letter dated November 14, 2016, the Parent asserted that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2016-2017.

(Parent Exhibit A) The Parent is seeking reimbursement for the private placement at

, including .

The DOE submitted a “Due Process Response,” dated November 28, 2016.

(Parent Exhibit B) In the response, it was noted that the classification of was not changed at the CSE meeting on “3/8/16.” The date was incorrect, as the meeting was actually held on March 7, 2016, as noted in the IEP and in all other DOE documents presented. All of the other information to be indicated in the response, which is a template from which the appropriate option is selected from a list of options, remained empty. For example: where the form indicates to “choose one” education program recommended, from the educational programs listed, no program was chosen; where the form provides a list of the possible materials relied on by the CSE in making its decision, and as many as applicable can be marked, including “other,” no materials were selected; and where a list of programs considered but rejected by the CSE is listed, no program was selected. The only other information noted on the response was that a “Prior Written Notice (Notice of Recommendation) was issued to the parent on or about July 11, 2016 in which placement at was offered.” This statement is inaccurate, as the Prior Written Notice (Notice of Recommendation) was dated June 20, 2016, and did not include a placement offer, and the actual placement offer was contained in a “School Location Letter,” dated June 22, 2016. These documents were submitted as the DOE’s own exhibits. (DOE Exhibits C and

E) It is unclear why the DOE created, and provided to the Parent, a response to the Parent’s hearing request that is incomplete, inaccurate, and contradictory to the other documents it created.

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE presented the testimony of , a special education teacher assigned to the CSE, who served as the “teacher assigned” for the meeting held on March 7, 2016. When asked if he had “any independent recollection of that meeting,” Mr. responded, “None, other than the notes.” By looking at the IEP, he listed the participants in the meeting; however, he stated that the attendance sheet appeared to be incomplete. He testified that the CSE reviewed a 2014 evaluation and a progress report from the . He described some of the information reflected in the IEP. (T. 20-28) Mr. also described how the goals contained in the IEP were formulated and which were addressed. (T. 28-35; 35-37)

Mr. explained that, given ’s “ ”

“ .” An program is , but with

(T. 44-47) Mr. stated that, “

” warranting The remaining periods

of the week would be spent in “situation.” (T. 50) It was Mr.

’s opinion that the program would be appropriate for When asked if a would be appropriate, Mr. ’s response was, “ .”

(T. 56-57)

On cross-examination, Mr. again stated that he had no recollection of the meeting, had never met , and that no one on the CSE team knew him. There had been no observation of in his then current program at the , and no one on the team contacted Dr. whose was relied upon by the CSE. Mr. confirmed that all of the information considered by the CSE was provided by ’s school, the Parent, and the Parent’s evaluator. (T. 61-67) Mr.

testified that the recommended program would be expected to , and would have approximately students. He acknowledged that it can have up to students. (T. 78-

86) Mr. was asked, “Who told you he was ready to move from to ” His response was that: “It’s not a matter of who told us. It’s a matter that this was an annual review meeting, and it’s the Department of Education’s responsibility to make a program recommendation for the student.” “But we would have to use the information in front of us —and at that time, it was a from 2014.” (T. 74-75)

THE PARENT’S CASE

is ’s mother. She described ’s early childhood and educational challenges. He received a range of and

.(T. 107-109) Each year, Ms. attended CSE meetings to develop IEPs. “ ” At the age of , when in the Parent had evaluated. She was told that . At that point, was enrolled at the , which specializes in teaching children with . Over the years that followed, benefitted from . At the end of his grade year,

(T. 111-117; 153)

Ms. attended the IEP meeting on March 7, 2016. She had provided the evaluation to the DOE that was referred to at the meeting and in the IEP. (Parent Exhibit D) Mr. , from the , participated in the meeting. He speaks with all of the teachers, collects reports and presents the information at the CSE meeting. Ms. . expressed her concerns about the and the make-up of the class. (T. 121-125) Ms. . explained that she received the placement offer late, after the school year had ended, and, after unsuccessful calls to the school in the fall, she decided to just go to the school for her visit. She described it as a building with several specialized schools within it. On her first visit, there was no one available to meet with her. She returned a few days later. She asked the about the school and learned that it is an “unscreened” school, with students randomly assigned. Some students graduate and some drop-out. Ms. . visited a class of approximately students.

Ms. spoke with a teacher, described , and shared her concerns. According to Ms. , the teacher said that the had students coming from and classes, and a huge range of students. She also said that it would be “iffy” for if he is Ms. emphasized that “iffy” was the teacher’s word. The teacher also told Ms. that the class was full to capacity. She explained that there is another but that and that, , it was something she should consider. The teacher also told Ms. that she was surprised to see her, since parents do not generally come to the school for conferences or otherwise. Ms. also observed a . There was a lot of commotion in the classroom, it was a hard class to control, and she only observed learning going on in the front of the class. Students in the back of the room were braiding each other’s hair. There was a big textbook being used and no visual aids in the classroom. Students who did not raise their hand were not participants and could sit quietly and not be engaged. It was not the right academic setting for She learned that, after the , there is no . Ms. also observed the hallways during transition times and described the students as calling each other rude and obscene names. It was not a quiet, calm, supportive environment. (T.127-137;139; 162)

Following her visit to the school, Ms. wrote to the DOE to describe her visit.

(Parent Exhibit F) She did not receive a response from the DOE. Since

, Ms. had to consider, among other things, that there would be . This was a critical point in his educational career.

was going to be key in continuing his forward progress. Several important factors for ’s program and placement were:

In researching schools, offered an environment that was appropriate for . While is not a , it provides with a . He can only make progress with the appropriate supports and environment. (T. 137-147) is located in which is approximately .

. (T. 149-151)

In describing her disagreement with the CSE’s recommended program and the offered placement, Ms. noted that, “

”“ ” (T. 138-139)

is the at and also serves on the admissions

committee. She described the school as having in grades .

. She

described as

. The school’s average class size is

There is an

. (T. 180-184; 189; 194)

(T. 185-186; 202; 205; 208) testified that is appropriate for . The (T.188-189)

At the time of ’s testimony, had completed and she testified that he is making good progress and is a “ ” Each trimester, .

. . He made progress with over the school year. He made progress in . (T. 183-186; 198)

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 Free Appropriate Public Education (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 maintains that it offered a FAPE to for the 2016-2017 school year.

In support of its position, it presented the testimony of Mr. , who served as a member of the CSE that created the IEP. Mr. ’s testimony could have been provided by anyone having reviewed the IEP. His testimony did not add any substance to support the DOE’s burden to establish that it offered a FAPE to He had no independent recollection of the meeting. The impact of his testimony, if any, was to bolster the Parent’s case by his confirmation that the CSE’s recommendation was based wholly on the information provided by the Parent, ’s school, and ’s private evaluator. The recommendation for was made despite the consistently expressed need, across the board from those who know and have worked with that he requires . The evaluation, upon which the CSE relied, included the following statements: “

” “

” and, “

” The progress report form the

, also relied upon by the CSE, was a reflection of ’s performance in an extremely structured special education setting for students with with class sizes of as described by Ms. . The CSE completely relied upon these documents, since there were no DOE documents to consider, and the CSE incorporated the information from the documents into the IEP. The record is void of any explanation to reconcile this with the CSE’s total disregard of both the recommendation of the evaluating and the context in which was progressing at

It is noted that, at the conclusion of Mr. testimony, the DOE contemplated presenting another witness and was given time to consider how it wished to proceed. Following a brief recess for that purpose, the DOE chose to rest its case. (T. 98-99)

The Parent described her visit to the offered placement in her testimony. Her testimony included that , which would not be appropriate for , he would certainly not make progress, and would likely regress. The school does not offer

Ms. described the classroom environment she observed.

Most importantly, she testified that the school administration and teachers expressed their opinion that the placement would not be appropriate for The DOE did not rebut this testimony at all. Ms. experience at the school had been documented and shared with the DOE prior to the impartial hearing request and, then again, in the impartial hearing request. Therefore, the DOE was certainly on notice that the Parent was making representations as to what she was told by those she met at the school. The DOE had ample opportunity to present testimony to rebut or challenge the Parent’s statements, however, it did not do so. Therefore, the content of her testimony with regard to her school visit, which was first communicated to the DOE in the contemporaneous document she submitted, stands uncontroverted.

Although the DOE asserted that it offered a FAPE to in its opening statement, it did not make any further argument or reference to Prong 1 in its closing argument. Based on the record, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program she has 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, she 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; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.

3d 105 (2d Cir. 2007)] The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000)

“The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The 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])

The DOE has not challenged the appropriateness of the Parent's placement, except to argue in its closing argument that, “The DOE has demonstrated that that the Parent has not met its Prong II burden, in that program was not reasonably calculated to provide meaningful educational benefits to ” The DOE argues that does not have a special education component and its educational supports do not sufficiently address . It was further argued that there is no evidence that requires . Although Mr. testified that would not be appropriate for as noted above, his testimony with regard to this entire matter bears little weight. His opinion regarding a , which was general to and not specific to is given no more weight than that of any random individual reviewing a file, with no independent recollection of a meeting in which they participated, having no personal knowledge of the child, and having no knowledge of the at issue. No testimony or other evidence has been offered to dispute the shared recommendation of the medical and educational professionals who have treated and worked with The arguments made by the DOE’s representative are not supported by any of the evidence in the record.

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , and who provide direct services to him, have all determined and agree that he needs a program far more supportive than the CSE’s recommended program. was appropriate for for the 2016-2017 school year. Ms. and Ms.

persuasive testimony and evidence to this effect. 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, made meaningful progress through his participation in the program.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.

Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record clearly demonstrates the Parent’s cooperation with the DOE, which included providing the CSE with the two primary documents on which it relied and participating in the CSE meeting. In addition, her subsequent correspondence to the DOE, which went unanswered, also showed her continued willingness to cooperate and consider any further recommendations. The DOE did not present any argument regarding equitable considerations that should serve to reduce or bar an award of tuition reimbursement in favor of the Parent. There was no “Prong III” argument asserted by the

DOE.

ORDER

1. The DOE failed to offer a FAPE to for the 2016-2017 school year.

2. The Parent’s unilateral placement of in was appropriate for the 2016-2017 school year.

3. There are no equitable considerations which would reduce or bar an award of reimbursement.

4. The DOE shall reimburse the Parent for the full cost of tuition paid to for ’s enrollment in for the 2016-2017 school year, in the amount of . Reimbursement shall be made immediately, since the Parent has already submitted proof of payment. (See Parent Exhibits I and J).

Dated: November 14, 2017

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer ALI:

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

IHO Exhibits

Exhibit Date Description Pages

I 1/12/17 Case Follow-up Sheet 1