New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164736

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 1, 2017

May 25, 2017

Actual Record Closed Date: July 28, 2017

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2017

Advocate — Parents

CSE Representative, Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2017

Attorney — Parents

Mother — Parents

Parents

(via telephone)

CSE Representative, 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 2016-2017 school year. The hearing was convened at the written request of ’s parent (the “Parent”) by letter dated December 6, 2016. (Exhibit A) A hearing was held on May 1, 2017, and May 25, 2017, at the offices of the New York City Department of Education (the “DOE”) 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, 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 who has been classified as a student with a disability by the DOE. She has been diagnosed with

. A

meeting of the DOE’s Committee on Special Education (“CSE”) was conducted in May 2016 to develop an Individualized Education Program (“IEP”) for for the 2016-2017 school year. The record does not include an IEP; however, it does reflect that the IEP contained the CSE’s recommendation for an and related services. The Parent asserts that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2016-2017 school year and is seeking tuition reimbursement for the private placement of in ’s special education program at the (“ ”).

By letter dated September 6, 2016, the Parent notified the DOE that she disagreed with the recommended program and placement for (Parent’s Exhibit B) She expressed her continued willingness to discuss her concerns and to consider an appropriate IEP program recommendation and placement. She described her visit to the proposed school and her plan to visit the proposed class once school opens. In the Parent’s request for an impartial hearing, dated December 6, 2016, she informed the DOE that she had visited the proposed school for a second time, in November. (Parent’s Exhibit A) The record does not reflect any response from the DOE to the Parent’s letters.

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE has conceded that it failed to offer a FAPE to for the 2016-2017 school year. The DOE did not call any witnesses to offer direct testimony to support its case or to rebut any of the testimony supporting the Parent’s case.

The DOE’s challenge to the appropriateness of the Parent’s unilateral placement of at was presented in its closing argument. The DOE argued that, given ’s levels of performance and abilities, such a “appears to be a very restrictive environment for someone like . And we think it’d be more enriching for her to be in an environment giving her more opportunities for .” (T. 85-86) The DOE’s closing argument also questioned the school’s assessment methods, maintaining that, since they do not include administering the , ’s progress can not be compared to her peers. Finally, the DOE stated that, based upon the Parent’s decision to send her other school-aged children to private school, “it appears to us that the family’s intention is to have be in a private school placement.” (T. 86-87)

THE PARENTS’ CASE

has been the of the program for twenty-five

years. She oversees and observes the teachers and had the opportunity to work with the students. Ms. described as an program for . Although the students are learning in a class, they have many opportunities, both , to mainstream. There are approximately students in the program, from the through grades.

The host school has approximately students.

.

. The classes have . uses the curriculum, tailored to the individual child’s needs, with the goal of

. (T. 22-24; 50-51)

Ms. explained that started at the school in the middle of the last school year. Therefore, the 2016-2017 school year is her first full year attending the school. She described as “ .” Her difficulties are “

.”

(T.25-27) For the 2016-2017 school year, there are students in ’s classroom. She has a , an , and a . The have masters degrees in special education and are certified and licensed in New York State. fits into the grouping of the students in the class, although she has . Since she requires

, .

. (T.27-30) A

was put into place for because she is “

and there has been major improvement in over the course of the year. She does not need the anymore and

. (T.31)

In terms of ,

. There are students in her with . works well with and has helped with . She started the year on a and progressed to a . However, is on a .

made progress towards her goals, which has been measured by end-unit tests and teacher observation. (T. 33-35) In , works in a so the teacher can provide to She has a hard time with

. are very

challenging due to . At the beginning of the year, was at a beginning of , and progressed to an end of . She has made progress towards her goals. (T. 36-37) has “tremendous difficulty” with

. “

” (T. 38) There are in the with

. The “ .” (T. 39) In addition to the

, there are other strategies used to address . She has issues and is affected by , which make her . The teachers try to . She is on a program that . They also work on to address her . These strategies are worked in through the who teaches the teachers how to

. (T. 39-40)

’s include

. She can “ ,” but she is much better. She has , including . (T. 41- 42) receives ,

, and and

. These related services are provided by licensed and certified .

(T. 42-46) has become less , and more

. The staff meets regularly as a group to share their perspectives and to make sure everyone is on the same page with regard to and her needs. (T. 45-47)

is learning and is progressing nicely with it.

is secular-based. (T. 40-41) Ms.

explained that from until , or of the day, is dedicated to religious studies. (T. 47)

When asked to compare from the beginning of the school year to the end of May, in terms of her global progress, Ms. responded, ‘It’s a different child.” She feels that has appropriately met ’s needs. (T. 47-48)

is ’s mother. She described as

. She struggles . has received

special education services since early intervention was provided to her. (T.67-68) Ms.

attended the CSE meeting in May 2016, at which the CSE recommended an for Ms. explained that she was concerned with the recommendation. She visited the school where a placement was offered to .and felt that . She toured the school with the principal. There was a lot going on, the classes were “ ,” and . Ms. did not believe that . (T. 68-70; 77-78) Ms. stated the if the DOE had recommended an appropriate public placement for , she would have considered it, even if she had already signed a contract with . If attended a public school, Ms. would arrange . (T. 70-71)

Ms. explained that has done well during this school year at , although she definitely struggles. The environment makes it much easier for her to learn and it is appropriate for her and . It is an appropriate place where she has her needs met and is making progress (T. 71-73)

Ms. testified that she is responsible for the tuition of .

.

. If

she does not prevail at the impartial hearing, she will be obligated to pay the tuition. (T. 73-75)

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 conceded its failure to offer a FAPE to for the 2016-2017 school year. Therefore, 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 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 Parent meets ’s special education needs for the 2016-2017 school year. It has been persuasively established by Ms.

and Ms. , as the testimony cited herein documents, that placement at is 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 her individual needs. In fact, made meaningful progress through her participation in the program. The environment provided opportunities for the tailoring of material and strategies to meet ’s individual needs.

The faculty at are licensed and certified educators of students with special education needs. The teachers, and Ms. coordinated their efforts to support Importantly, has substantial mainstreaming opportunities throughout the course of her day.

The DOE offered no testimony or other evidence to challenge 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 does not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s continuous efforts to cooperate with the DOE. The DOE failed in its obligations to and concedes such failure.

The DOE shall directly fund the secular portion of the tuition costs for to attend for the 2016-2017 school year, upon submission of an invoice.

Dated: August 22, 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

Parent Exhibits

A. Impartial Hearing Request, 12/6/16, 3 pages

B. Parent Letter, 9/6/16, 3 pages

C. , 3/25/15, 4 pages

D. Follow-up, 10/9/15, 1 page

E. School Progress Report, 5/5/17, 2 pages

F. Tuition Contract, 9/7/16, 1 page

G. Affidavit of Payment, 4/26/17, 1 page

H. Daily Class Schedule, 2016-2017, 1 page

I. , 5/3/16, 1 page