New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167079

Student’s Name:

Date of Birth:

District: I I

Hearing Requested By: Parent

Date of Hearing: July 14, 2017

September 7, 2017

October 10, 2017

December 4, 2017

Actual Record Closed Date: December 26, 2017

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2017

Attorney — Parents

Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2017

- L_J, via Attorney — Parents

telephone

Department of Education Representative — DOE

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

- 17, via Attorney — Parents

telephone

Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2016

Advocate — Parents

Parents

Director of School Program at the (via telephone) — Parents

Department of Education Representative — DOE

On July 3, 2017, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415 and Article 89 of the Education Law of the State of New York in the matter of (hereinafter

). Hearings were held on July 14, 2017, September 7, 2017, October 10, 2017 and December 4, 2017. An Interim Order on Pendency was issued on June 21, 2017. I ordered that the that the Department of Education ("DOE") fund the placement at

(" "), and continue to provide

11 11 I 11 11 11 11 11

--~1111111- 7

The hearing was requested by the parent to challenge the May 12, 2017 review and recommendation of the Committee on Special Education ("CSE") and to obtain funding for a unilateral placement at , is a non for profit, private entity lacking State Education Department approval

(Exh. Q). The total amount of tuition was (Exh. P at 1,6). The parents submitted proof of payment in the amount of (Exh. P at 6; Tr. at 107).

The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. 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 present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 112-117; Exhs. I-IV). The parents' representative submitted her post-hearing statement on December 19, 2017 and the district representative declined to submit a post-hearing statement. As I received the post-hearing brief on December 26, 2017, the actual record close date is December 26, 2017 and the decision due date is January 8, 2018.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

is an _ _ J _ who attended L_J, L J ~ - - - - - school with 3 programs:

. attended the school for the 2017-2018 school year (Tr. at 46).

A Evaluation was conducted on L_ on March 14, 2016,

I I

I I

-~_J~---LJ~- ~ - - - - - - L_ ~-~

On March 14, 2016, the Classroom Observation indicated that A Student Progress Report for was conducted on February 1, 2016, for Case No. 167079

A Student Progress Report for was conducted on June 26, 2015, for

On April 21, 2016, the CSE met

I I

The Prior Written Notice ("PWN") dated September 20, 2016, indicated that L_

On March 31, 2017, the Progress Report

indicated that

On May 3, 2017, the CSE met

I I

On May 3, 2017, the DOE was completed and it indicated that

On May 30, 2017, the DOE (" ") was developed to target the

On July 3, 2017, the parents requested prospective payment/reimbursement for the tuition at for the 2017-2018 school year as the May 3, 2017 IEP was procedurally and substantively defective for the following reasons: (1) the IEP did not include _J as the specific methodology; (2) the academic goals were vague and not measurable and lacked supports for ; (3) the short-term instructional objectives were vague and provided no baseline to measure progress and (4) the recommendation of a was insufficient support to meet his need for instruction (Exh. A at 3).

The parents further asserted that the May 3, 2017 IEP was flawed for the following reasons: (1) no was included; (2) the and were inadequate (Exh. A at 4), and (3) the private evaluations recommended both in and outside of school but the IEP only recommended a DOE program not an program.

The parents asserted that the recommended public school placement was not appropriate (Exh. A at 5). The parents maintained that the placement at L_J was appropriate and that the equities favored them and requested a finding that the DOE failed to offer a free appropriate public education ("FAPE") for the 2017-2018 school year and parents requested an order to provide (Tr. at 109); and requested an order for related service authorizations ("RSAs") for the parents for related services and requested and order that the DOE provide the at school

(Exh. A at 8).

THE DISTRICT’S CASE

The district's representative did not submit any witnesses to support its position that a FAPE was offered for the 2017-2018 school year, but rested on the evidence (Tr. at

32).

THE PARENTS' CASE

The Parents' case as presented in the testimony of mother and the Director of , . testified that she was the Director of school programs at L_J and that she had a Master's degree

- - - - -

and a doctorate and that she worked with students for the past 25 years (Tr. at 43). She explained that she had been employed as Director for the past 5 years (Tr. at 44). She recalled that had 3 programs:

an NYS approved program, a private school program and a private program (Tr. at 45). She stated that

She stated that

_J _ _ L_ _ L _ J _ ~ - -

teaching at for 7 years

and the often pushed into the class to teach (Tr. at

47;81), and that a , who was at ~ - - - -

, also pushed into the classroom (Tr. at 48) and stressed that the faculty was trained in , collecting data, and in implementing and she provided daily staff meeting to supervise the staff and review lesson plans (Tr. at 50). She explained the following curricula used in class included:

(Tr. at 51). She

explained that

. She stated that

. She stated that through RSAs at and that the all the related service providers and were licensed and certified and trained in L_, data collection and implementing (Tr. at 49). She recalled that

and

. She stressed that data was collected daily

opined that the goals developed by the CSE on May 3, 2017, during the IEP meeting were inappropriate as the She further opined that

_J (Tr. at 65). She stressed that the and _J were not appropriate because not a setting event (Tr. at 67), and because the did not state the correct setting event, there was no way to (Tr. at 70). She related that data was collected L_J _ULJ

She

reviewed the report (Exh. J), and noted that from which provided _J services for payment by insurance (Tr. at 90), developed at CJ and supervised his teacher and related service providers to graph and chart progress towards goals and to ensure the continuity of programs at school and outside school (Exh. J at 4), and that she agreed that required (Tr. at 75;

Exh. J at 10). She opined that L_J required (Tr. at 76). She further opined that

On cross L_J _ _ stated that setting event for was _J J The parent testified regarding her son's history and noted that she participated in the IEP meeting for the 2017-2018 school year and that she recalled discussing his , but she did not recall a plan developed to treat (Tr. at 87-88). She stated that she discussed L_ and her son's need for at school and at other settings outside of school to help reinforce skills and that the team agreed that was appropriate for her son (Tr. at 89). She explained that her insurance plan paid for the _J services provided by and that she considered the L_ hours from U_ part of her son's educational program (Tr. at 90). She recalled a discussion at the IEP meeting of and she recalled that she received a 7 report (Exh. E). She stated that she did not agree with the reporter conclusion that the could not be used .

She explained that the could not be used only because the never left the school (Tr. at 92). She recalled that she sent an email to the CSE to list her concerns with the IEP regarding vague goals and her objection the was only to be used as school as her son required the (Tr.

at 94). She stated that she that visited the proposed site and sent an email (Exh.

O) listing the following concerns: (1) there was no provided; (2)

and (3) (Tr. at

95). She stated that she paid for the tuition for the current school year as a deposit (Tr. at 100), and that she signed the enrollment contract o June 28, 2017 for a program at for the 2017-2018 school year (Exh. P).

FINDINGS OF FACT AND CONCLUSIONS 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]). (G gli rdo 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 W lcz k v.

Florid 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]).

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. Educ tion, M ss chusetts, 471 U.S. 359 [1985]; Florence County School District Four et l. v. C rter by C rter, 510 U.S. 7 [1993]; see also, Fr nk G. nd Di nne G. v. Bd. of Educ. of Hyde P rk, 459 F.3d 356 [2d Cir. 2006] cert denied, Bo rd of Educ. of Hyde P rk Cent. School Dist. v. Fr nk 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].

I find the DOE representative presented no witnesses and did not dispute any claims of the parents that FAPE was not offered for the 2017-2018 school year. The parents' attorney asserted that the "DOE offered no witnesses and five exhibits, all dated in 2015 and early 2016 and not used for the 2017-2018 IEP. No evidence or witnesses were presented to justify the issuance of the IEP or to demonstrate the appropriateness of the offer of school placement" (Exh. VI at 8). I find that without a DOE witness testimony to explain how deficits are addressed within the IEP and other DOE documents as well as to explain the CSE's rationale in recommending the disputed program, the DOE is unable to meet their burden. The SRO has found that allegations that are left unchallenged are deemed as true. (See Applic tion of Student with

Dis bility, Appeal No. 01-044). I find the evidence in the record is consistent with the allegations as I find the DOE could not establish Prong 1 based on the evidence.

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material (8 NYCRR 200.4[b][4][5][6]). The parents' attorney asserted the program did not provide with sufficient support as the recommended program of did not provide individual instruction as , and a failed to provide appropriate goals and did not include required to (Exh. A at 3), and failed to provide appropriate L _/ _ (Exh. A at 4) and failed to recommend _J at school or at as recommended by evaluations and failed to recommend and appropriate placement (Exh. A at 5). The parents' attorney asserted that the IEP did not include a sufficient description of present levels of performance and the goals were vague and were insufficient to address deficits and there was no goal for (Exh. A at 2,3). The parents asserted that they were denied meaningful participation

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused adeprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

I find that the parents were never provided with any explanations of why the district refused to provide with a program that included .

Moreover, the DOE had documentation of n

needs at the time of the CSE meeting and I find that the CSE was on notice of the in by the and the classroom observation as

I find

that the report indicated that

I find that the Classroom Observation indicated that

. I find

that the May 3, 2017 IEP failed to consider evaluations and failed to consider the recommendations for . I find the CSE was aware that as listed in the . I find that required amore supportive program than the CSE was willing to provide.

The parents' attorney stated that an "adequate IEP must be developed in consideration of the results of the initial and most recent evaluation; the student's strengths; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision.

8 N.Y.C.R.R. § 200.4(d)(2); 20 U.S.C. § 1414"(Exh. VI at 8). The parents' attorney further asserted that the CSE did not consider the parent in developing the IEP nor did the CSE " and asserted that the

" " (Id.). I

agree.

I find that the IEP team ignored the parent's concerns at the May 3, 2017 IEP meeting for a placement with in school and supplemental .I credit the parent's testimony that she told the team members that her son required and the CSE team ignored the parent's request for more support which significantly impeded the parent's opportunity to participate in the decision making process. I find the program recommended was made in contradiction of the parent and recommendations for _J in school and caused a deprivation of educational benefits.

The parents' attorney asserted that the May 3, 2017 IEP was inadequate because the goals failed to address . The parents' attorney asserted that there was no goal for and L was not included in the IEP despite his

(Exh. A at 2). I agree and find that the goals did not address . I further find that the IEP did not include sufficient specificity as argued by the parent's attorney (Exh. VI at 5)

and I find that the goals were vague and were insufficient to address

The parents' attorney asserted that the was inadequate as the was not an actual assessment, but was derived from the IEP (Exh. A at 4). I find the shall provide a baseline of the with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day per 8 N.Y.C.R.R. § 200.22(a)(2-3). I credit the testimony of regarding the deficiencies of the May 3, 2017 and find it failed to include all , the correct setting event and failed to include any data (Tr. at 70)

and I credit her testimony that required a 1 and n by a .

Accordingly I find that FAPE was not offered for the 2017-2018 school year and the parents prevailed on the Prong 1.

The parents have the burden to prove that the services they obtained for are appropriate to his needs. The fact that the facility selected by the parent to provide the educational services to the child is not approved as a school for children with disabilities is not dispositive of the parents’ claim for tuition reimbursement. (Florence County School District Four v. C rter by C rter, 114 S.Ct. 361 [1993]) The parents must prove that will receive an appropriate educational benefit from the program at the non-public school, and the parents offered substantial evidence to meet this burden. 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 Fr nk G. v. Bo rd of Educ tion, 459 F.3d 356 (2d Cir. 2006) and G gli rdo v.

Arlington Centr l School District, 489 F.3d 105 (2d Cir. 2007). Under Fr nk 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."

I find that the testimony adduced at the hearing demonstrated that 's placement at the L_ in _J supports his , and and enabled _ J to be

=============~= ----- that that data was collected at . I credit the testimony of the Director and find daily for a plan and that I credit her testimony

and find

. The uncontested testimony established that addressed by the use of programs and individual discrete trial teaching and I find that progressed in his and (Tr. at 76), and I find that was now able to I find the testimony from Director persuasive that the special education supports of instruction along with the curricula of addressed his academic goals. I find the daily data collection and graphs to chart progress and plans and the addressed . I find that (Tr. at 41;81). I find the . I find the multiple

I further credit the Director's testimony and find that required both the program and the program to to progress (Tr. at 75).

Therefore, I find the was an appropriate placement. Based on the foregoing, I find the parent satisfied the Prong 2.

The third prong of the test for tuition reimbursement is whether the equities favor the parents' position. I find the testimony adduced at the hearing established that the parent cooperated with the district. I find the parent established that she was unable to pay to the tuition by her uncontested testimony. I find that parents who have satisfied each of the Burlington factors. have a right to retroactive direct tuition payment relief (Mr. nd MM.C.. A ex.rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-

429 (S.D.N.Y. 2011). I find that the parent provided detailed and uncontradicted information as to her lack of financial resources to pay the tuition. I credit the parent's testimony and I find the parent lacked the financial resources to pay the tuition for Case No. 167079 the 2017-2018 school year. I find the parents meet the Connors criteria for prospective funding for the cost of the 2017-2018 tuition school and the parent is entitled to direct retroactive payment. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately" (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)).

Order

It is ordered that the DOE provide tuition reimbursement of to the parents and provide prospective payment of for the tuition of for the 2017-2018 school year upon proof of attendance and proof of payment (the evidence of such payment must be acceptable to the Department of Education) within thirty days of the submission of proof of attendance. It is further ordered that the DOE provide in the event the parent's insurance does not continue to pay and I order RSAs for the parents for related services and that the DOE provide the

Dated: January 3, 2018

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LEASE TAKE NOTICE

The parent and/or the New York City Department of Education has aright to obtain areview of this decision by a State Review Officer of the New York State Education Department under art 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 JULY 14, 2017

A Impartial Hearing Request, 7/3/17, 9 pp. Parents

B Findings of Fact and Decision, 2/27/17, 19 pp. Parents

C IEP, 4/21/16, 18 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 10, 2017

I Decision on Extension, 9/7/17, 1 p. IHO

II Decision on Extension, 10/10/17, 1p IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 4, 2017

A Impartial Hearing Request, 7/3/17, 9 pp. Parents

B Findings of Fact and Decision, 2/27/17, 15 pp. Parents

C IEP, 4/21/16, 18 pp. Parents

D IEP, 5/3/17, 16 pp. Parents

E evaluation, 5/19/17, 10 pp. Parents

F Teacher Report, undated 3 pp. Parents

G Report, undated, 2 pp. Parents

H Report, 4/3/17 2 pp. Parents

I Report, 3/31/17, 2 pp. Parents

J Report, 8/9/17, 10 pp. Parents

K , 5/30/17, 5 pp. Parents

L , 5/3/17, 4 pp. Parents

M PWN and School Location Letter, 6/12/17, 4 pp. Parents

N Email to Committee on Special Education, 6/19/17, 1 p. Parents

O Email to Committee on Special Education, 6/29/17, 2 pp. Parents

P Enrollment Agreement & Proof of Payment, 6/28/17,10 pp. Parents

Q Description of Program, undated, 4 pp. Parents

R Class Schedule and Profile, 2017-2018 School Year, 4 pp. Parents

S Tax Returns, 2016, 4 pp. Parents

1 Withdrawn

2 evaluation, 3/14/16, 2 pp. DOE

3 Classroom Observation, 3/14/16, 1 p. DOE

4 Report, 2/1/16, 2 pp. DOE

5 Progress Report, 6/26/15, 1 p. DOE

6 PWN, 9/20/16, 4 pp. DOE

I Decision on Extension, 9/9/17, 1 p. IHO

II Decision on Extension, 10/10/17, 1 p. IHO

III Decision on Extension, 10/17/17, 1 p. IHO

IV Decision on Extension, 12/4/17, 1 p. IHO

V Subpoena, 9/12/17, 2 pp. IHO

POST HEARING SUBMISSIONS

VI Closing Brief, 12/19/17, 18 pp. IHO