New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164828

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 24, 2018

Actual Record Closed Date: June 26, 2018

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2018

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Esq. Attorney — Parents

Mother — Parents

Father — Parents

Ph.D. Program Coordinator — Parents

(via telephone)

CSE

Representative — DOE

INTRODUCTION

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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 December 13, 2016. (Parent Exhibit A) A hearing was held on April 24, 2018, 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)]

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BACKGROUND

is a year-old boy who was entering the 2016-2017 school year as an year old grader. has been classified by the DOE’s Committee on Special

- 1111 Education (“CSE”) as a student with a disability, specifically, a learning disability. He has the diagnoses of: a Language Disorder; Dyslexia; a Specific Learning Disorder with impairment in written expression; and Attention Deficit Hyperactivity Disorder. (DOE Exhibit 4) On April 12, 2016, the CSE convened to develop an Individualized Education Program (“IEP”) and a program recommendation for for the 2016-2017 school year. The CSE’s recommended program was a “Special Class” for “all academic subjects” with a 12:1 ratio. The CSE also recommended the related service of speech and language therapy in a group of two students once a week for a 30-minute session and individually twice a week for 30-minute sessions. (DOE Exhibit 1)

By letter to the CSE, dated August 22, 2016, through counsel, the Parent noted deficiencies in the CSE process and the IEP, and expressed disagreement with the CSE’s recommendation. The Parent put the DOE on notice that would be unilaterally placed in the at the School for the 2016-2017 school year and that the Parent would be seeking funding for the placement from the DOE, unless the DOE offered an appropriate program and placement to (Parent Exhibit G)

In the Parent’s request for an impartial hearing, dated December 13, 2016, which noted that there had been no response from the DOE to the letter dated August 22, 2016, it was confirmed the Parent would be seeking funding for ’s placement at for the 2016-2017 school year. (Parent Exhibit A) In the hearing request, the Parent

- referred to an unappealed decision of an Impartial Hearing Officer, which found the program to be an appropriate placement for for the 2015-2016 school year. Specifically, a decision was issued by Impartial Hearing Officer Esq., dated December 7, 2016, and corrected December 9, 2016, which found to be an appropriate placement and ordered reimbursement to the Parent and/or direct payment to the school for ’s tuition for the 2015-2016 school year. (Parent Exhibit B)

POSITIONS OF THE PARTIES

THE DOE’S CASE

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The DOE presented an opening statement at the outset of the hearing asserting that the DOE had offered a Free Appropriate Public Education (“FAPE”) to for the 2016-2017 school year and that there were no “substantive or procedural inadequacies.”

(T. 22) The DOE chose not to present any witness testimony in support of its position and, instead, opted to rely on the documents entered into evidence to support its position.

(T. 25) The DOE did not cross-examine the Parent’s two witnesses and, therefore, their testimony was not challenged or rebutted in any way. (T. 66, 81) The DOE’s closing argument was as follows: “The DOE does stand by the proposed placement of I.S. 034 Tottenville.” (T. 81) There was no mention of the IEP, the CSE process, or the offer of a FAPE in the DOE’s closing argument. In addition, were was no argument or even a reference to the Parent’s unilateral placement or to any equitable considerations that should limit or bar the Parent’s request for reimbursement. A review of the record, including the evidence submitted by the Parent, to which no objection was made, establishes that there was no disagreement articulated by the DOE to the claims raised and the assertions made by the Parent in the request for an impartial hearing and in the presentation of the case at the hearing.

THE PARENT’S CASE

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The Parent presented the testimony of two witnesses: Ph.D., the 6th Grade Program Coordinator during the 2016-2017 school year; and ’s mother.

has been at for 13 years. She was the 6th Grade Program Coordinator during the 2016-2017 school year and, in the current 2017-2018 school year, is the 7th Grade Program Coordinator. In her position, she moves with the students each year as they move through the three middle school grades. She testified with regard to the school’s environment, philosophy, general education program, and special education programs. During the 2016-2017 school year, was a student at in its

There were six

• -graders in the which is a “total support program” for students with language-based learning disabilities, specific learning disabilities, executive functioning deficits and attentional deficits. The program offers modifications, differentiated instruction, targeted intervention and remediation, extra support periods and related services. (T. 27-36)

testified that she worked with “quite often” during the 2016-2017 school year, including teaching him in her language arts group. She is familiar with his neuropsychological evaluation and his diagnoses. (Parent Exhibit 4) She described his learning profile, which reflects a lot of cognitive abilities that are intact and in the average range, along with specific deficit areas. In addition to his learning disabilities, which

-- impact his language processing and verbal memory, he struggles with executive functioning, organization, attention, transitions, planning and anxiety. described the methods, strategies, accommodations, and modifications used in 1111’s classes and she testified with regard to the classes he participated in, as outlined in his schedule. (Parent Exhibit E) The teachers used targeted interventions in their small homogenous groups and special programs, which provided 1111 with the necessary repetition, review, and time to process the information. 1111’s language arts class started with four students, taught by and the speech and language pathologist. The class increased to six students in January. 1111 was in a math class of four students with a teacher who is certified in special education and is also a school counselor. 1111 had three extra support periods built into his schedule for math, language arts and the other content area subjects. He had a support period run by the speech and language pathologist who also pushed into all five of his language arts classes per week. He also had a

- decoding group of four students for additional Orton-Gillingham-based decoding work.

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had a counseling session and an executive function coaching session, both with built into his schedule. .’s science class of 14 students, included approximately 3 students, along with general education students. His teacher was certified in special education. 1111’s social studies class had the same 14 students and was taught by the same teacher as math who, as note earlier, is certified in special education and a counselor. Based on 1111’s cognitive abilities, and the fact that he is a very social student, placing him in those classes benefits him by giving him the interaction and exposure to the other students. Those classes also keep him appropriately challenged, motivated, and engaged. 1111 ’s elective classes were a mix with mainstream students. (T. 36-58)

described the “tremendous progress” 1111 made in language arts, which she quantified at approximately a year and a half to two years’ worth of progress in reading and writing. testified that he also made a lot of progress in math;

-- advancing over a year and a half in word problems, while making steady, although not as dramatic, gains in computation. stated that made steady progress in science and social studies. She stated that, overall, made a lot of progress academically, as noted in his third trimester report card. (Parent Exhibit F) He was also happier, more positive, and “thriving.” (T. 48; 51-52; 55; 57; 59-61) described why the DOE’s proposed program would not have provided a meaningful educational benefit for 1111 , which included that: the mixed grouping would likely consist of a wide range of students, including those with emotional needs; he needs very small groups for targeted intervention, especially for reading and math; since he also has normative cognitive abilities, he benefits from being exposed to the mainstream students in an academic setting; and, he really needs the extra support, in addition to individual therapy, of having the speech and language pathologist work with him during the language arts periods and for an extra support period. also testified that the counseling component provided at which was not included in the DOE’s IEP, is -- “definitely necessary” because he is an anxious child with low self-esteem. (T. 62-65)

is .’s mother. She testified that, in first grade, which he repeated, he received Special Education Teacher Support Services through the DOE while attending a school. The Parent decided to have privately evaluated, resulting in a neuropsychological evaluation, dated February 2, 2015. The Parent shared the evaluation with the DOE and asked the DOE for a public program to

--- implement the recommendations contained in the evaluation. (DOE Exhibit 4) Since the DOE did not offer a program, the Parent placed at in its for grade, in the 2015-2016 school year. (T. 67-72)

participated in the CSE meeting on April 12, 2016. explained her disagreement with the CSE’s recommended program, which she shared at the meeting. She believed that, in a 12:1 special class, 1111 could be placed with children who have more severe issues than 1111, which would increase his anxiety. Also, the CSE did not recommend counseling, although he definitely needs individual help with the anxiety.

confirmed that she received a school location letter, dated May 6, 2016, indicating that the IEP would be implemented at I.S.

- (DOE Exhibit 6) She testified that, since she did not receive any response to her several attempts to contact the school, she went to the school. A woman at the school told her that, although she could not elaborate further on the types of students in the class, it currently included students with autism. was not provided with a visit to the classroom. Based on the CSE meeting and her visit to the school, she did not believe that the program and placement offered were appropriate for 1111 By letter dated August 22, 2016, through her counsel, the Parent notified the DOE that she would move forward to keep 1111 at and seek tuition funding from the DOE. (Parent Exhibit G) did not receive a response from the DOE.

confirmed that she and her husband signed an enrollment contract with for the 2016-2017 school year on March 31, 2016. They signed it at that time to secure a seat for him. The contract included that it could be withdrawn by the Parent in September if the DOE were to offer an appropriate program to (T. 72-79)

stated that the program at met 1111’s needs and allowed him to make progress. During the 2016-2017 school year, observed that 1111 became more independent; he would volunteer to read to her, instead of her reading to him; and she saw a “huge difference.” testified that payment had been made to in accordance with the enrollment contract. (T. 78-80)^[1]

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).

Other than submitting documents into evidence, the DOE did not offer any support, in the form of witness testimony, from anyone who participated in the CSE meeting with regard to the process and the development of the IEP. There was nothing offered in an effort to corroborate or explain the documents submitted or to establish that a FAPE was offered to 1111 The DOE did not challenge the Parent’s correspondence, testimony, or argument in any way. In addition, there was no rebuttal to the testimony of the Parent’s witnesses, who know and work directly with that the DOE’s recommended program would not be appropriate for Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case. The DOE failed to offer a FAPE to for the 2016-2017 school year.

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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; 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])

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

1111 , including and have all determined and agree that was appropriate for . for the 2016-2017 school year. They provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program and demonstrates that it was reasonably calculated to allow to make meaningful progress and to address his individual needs. In fact, he made meaningful progress through his participation in the program.

The DOE has not challenged the appropriateness of the program at in any way. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

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 reflects the Parent’s continuing communication with the DOE and participation in the CSE meeting. There is clearly no basis on which to reduce or modify the remedy for the Parent.

ORDER

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1. The DOE failed to offer a FAPE to 1111 for the 2016-2017 school year;

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

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

4. The DOE shall reimburse the Parent for the tuition paid to in the amount of $46,800. Payment shall be made upon the submission of proof of payment by the Parent to the DOE. Dated: July 17, 2018 Amy Lynne Itzla mv

AMY LYNEE ITZLA, ESQ.

Impartial Hearing Officer ALI:mv

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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

DOE Exhibits

Exhibit Date Description Pages

1 4/12/16 IEP 15

2 2/18/16 Speech and Language Evaluation 6 3 4/2/16 CSE Minutes 2 4 2/2/15 Neuropsychological Evaluation 15 5 5/6/16 Prior Written Notice 3

(Notice of Recommendation) 6 5/6/16 School Location Letter 2 Parent Exhibits Exhibit Date Description Pages A 12/13/16 Request for Impartial Hearing 4 B 12/7/16; 12/9/16

C INTENTIONALLY OMITTED

D 3/31/16 Enrollment Contract 3

10/24/16 E 2/10/17 Student Schedule 1 F 2016-2017 Report Card, Trimester 3 10 G 8/22/16 Notice of Unilateral Placement 3

Footnotes

[1] testified on April 24, 2018. According to the enrollment contract the last of the ten payments toward the tuition total of $46,800 would have been paid in February 2017.