NY IHO #167381: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 167381

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 21, 2017

January 25, 2018

March 22, 2018

Actual Record Closed Date: May 20, 2018

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2017

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2018

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2018

Attorney — Parents

Father — Parents

Educational Director — Parents

Dept. Designee — DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing through their legal counsel on 7/6/17. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its Designee and the parent was represented by their attorney,

BACKGROUND

The parent of the child hereinafter referred to as brings this case under the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) seeking funding for for the 2016-2017 school year. More particularly, Parents stated that the Individualized Education Program, hereinafter referred to as the (IEP) was invalid; the parents’ allege that there was insufficient and inappropriate offer of services and that the New York City Department of Education’s (DOE), Committee on Special Education hereinafter referred to as (CSE) review team was invalidly constituted and failed to consider current, sufficient and appropriate evaluations and documentary material to justify its recommendations.

Additionally, the parent alleged that the CSE did not provide the parent with a meaningful opportunity to participate in the development of IEP and failed to evaluate in all in all areas of suspected disability, failed to adequately identify his present levels of performance or deficits and failed to adequately describe the skills needed to acquire in order to address his deficits. Lastly, the parent maintained that the CSE failed to recommend a special education program and services tailored to the child’s unique needs.

THE PARENT’S POSITION

Parents bring the instant action under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., Article 89 of the New York State Education Law, and Section 504 of the Rehabilitation Act of 1973. They seek an order requiring the “DOE” to directly fund the tuition expenses they incurred for their son’s enrollment at the for the 2016-17 school year (“SY”). The

•

parents allege that the DOE failed to offer their son, a free and appropriate public education (“FAPE”) for the 2016-17 SY, that was an appropriate placement for and that a weighing of the equities supports an award of direct funding of their tuition

• obligation.

THE DEPARTMENT’S POSITION

The DOE offered its IEP dated 3/7/16 and “rested”.

THE DEPARTMENT’S CASE

The DOE failed to call any witnesses and rested

THE PARENT’S CASE

affirmed that she is the curriculum director at the Her educational background includes a bachelor’s degree in psychology and special education. She taught at as a special education teacher for 12 years before taking on the responsibilities of Curriculum Director. (Tr. 15, 16).

The witness described the as a small school serving approximately 50 students between the ages of 5 and 21who require a small class size because they are not making progress in a larger class environment, and who have learning disabilities, speech and language issues, attentional and behavioral issues, and social deficits. (Tr. 18). The school provides its students with small classes in a small, safe, and more individualized and structured learning environment, and a small teacher-to-student ratio with between six and eight students in a class. (Tr. 18). incorporates hands-on and multi-sensory materials, activities in the classroom; it also offers related services of speech and language therapy, occupational therapy, physical therapy, counseling, vocational and life skills training for older students to prepare them for post-school employment and activities. (Tr. 18, 27-29).

, designs the program’s base curriculum and has been the Curriculum Director at for 20 years; individualized education programs are developed for each student after conducting informal and formal assessments of each student and consulting with the classroom teacher to determine individual goals based on the student’s strength and weaknesses. (Tr. 15-17; Ex. L).

In addition to developing the individualized education programs for each student, responsibilities include meeting with teachers to review their lesson plans to ensure that the students’ goals are being met, suggesting specific methods and different strategies to meet those goals, observing students in and outside the classroom, speaking with related service providers to ensure collaboration between teachers and the providers, and coordinating special events to bring mainstream students into the school in order to provide students with academic, communication and social modeling opportunities with typically developing peers. (Tr. 16-18, 35-36).

There is ongoing collaboration between teachers and therapists throughout the year, and teachers and staff participate in professional development training programs throughout the year on various topics, including motivational ideas, behavior management, developments regarding speech and language instruction, and specific strategies to address math and reading skills. (Tr. 17-19).

class during the 2016-17 SY consisted of 7 students taught by two teachers, thereby providing him with the small class size and small teacher-to-student ratio that was needed to help him manage his anxiety and distractibility, which greatly impacted his ability to make progress. (Tr. 21, 23; Ex. H-1). , who was head or master teacher, held a Masters degree, was duly certified in both special education and general education, and had 16 years’ experience as a teacher. (Tr. 24). assistant teacher, , had 2 years’ teaching experience and was working on her Masters degree in special education. (Tr. 24-25).

Due to the small class size,

- class was taught through a mix of whole group and small group instruction, with the core subjects of math, reading and writing taught in

required a small group of two students for reading and math small groups. (Tr. 25). instruction because math and reading were difficult subjects for and were therefore testified that anxiety provoking for him. (Tr. 25-26).

couldn’t learn if he was feeling overwhelmed and anxious, and that he always needed teacher attention and support in order to learn. (Tr. 23). By placing in a small group with just one other student who was functioning on his level, the teacher was able to tailor the instruction and break down the skills and material for him, help him maintain focus and complete assigned tasks, and receive the prompting and encouragement he needed, thereby allowing him to learn the material with a minimum of anxiety and stress. (Tr. 25-26; Ex.

- H-1).

- -

testified extensively regarding issues and how addressed his needs. (Tr. 20-21, 23, 25-26, 29, 31-33). addressed academic delays and need for classroom support in reading and math by providing him with multi-sensory instruction in a small class; a mix of small group and individualized one-to-one instruction taught by a certified special education teacher; use of manipulatives and a hands-on approach in his academic classes; and teaching and related service providers who worked collaboratively to make sure they focused on redirection, refocusing, breaking down information, positive reinforcement, as well as his vocational needs, his

- organizational needs, his behavioral needs, and his social skills deficits. (Tr. 18-29; Ex. H, I, J, K, L). addressed related service needs by providing him with his mandated services of speech and language therapy once a week for 30 minutes to address his issues with articulation, sequencing, pragmatics, organization, and to assist him with his conversational/social skills; occupational therapy once a week for 30 minutes to address his fine motor, visual motor, and motor planning skills, as well as his sensory processing deficits and focusing issues; and counseling three times a week for 30 minutes each to help enhance his self-esteem, help him learn problem solving techniques, and help him to express himself appropriately in social situations. (Tr. 30-32, Ex. I, J, K, O).

also provided with social skills instruction to help him learn how to begin and -maintain a conversation, stay on topic, maintain eye contact, and learn perspective-taking skills. (Tr. 22, 27). Additionally, received pre-vocational and vocational instruction in order to address his vocational and life skills needs, and the school created a behavior chart for to help address behavioral issues in class and provide positive reinforcement in order to increase the times he presented with positive appropriate behaviors. (Tr. 22-

23, 27, 32-33).

, who oversaw and was involved in educational program during the

- - 2016-17 SY, testified that (Tr. 37).

appropriately addressed

father testified that needs for the 2016-17 SY.

was appropriate for his because of the smaller class size, the small teacher-to-student class ratio, the school’s ability to address

- was able social, behavioral and anxiety issues on a one-to-one basis, and the fact that to achieve milestones he would not have been able to achieve without the program.

- (Tr. 50-52).

tracked progress throughout the year through progress reports that were issued throughout the year and by tracking each student’s progress on their individualized education plans, and the evidence clearly shows that made progress during the 2016-17 SY. (Tr. 36-37, 50-52; Ex. H, I, J, K, L). testified that math level increased from a 7th grade level to an 8th grade level during the 2016-17 SY, that his reading level also went up a grade level from 9th grade to 10th grade, and that he made significant progress academically, socially, and behaviorally. (Tr. 37).

- placement twice, and was willing in good faith to consider an appropriate public school placement for his son. father cooperated with the CSE and attended the CSE review meeting that was held on March 7, 2016. (Tr. 42-43; Ex. 1-14, 1-16). During the meeting, father expressed his reservations about the program recommended for his son (Tr. 43-45). Upon receiving the public school placement offer from the CSE,

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visited the placement and informed the CSE of his reservations about the program in a letter in which he also informed the CSE that the placement didn’t have the 12:1+1 program recommended (Tr. 45-47; Ex. C).

• also advised the CSE in his letter that he would visit the recommended placement again when the public schools reopened in September, he requested information that would help him assess the appropriateness of the class, and he indicated his continued willingness to consider any appropriate program or placement offered his son. (Ex. C-2). The CSE never responded to his letter. (Tr. 47). After many attempts,

• was able to arrange for a visit to the recommended placement a second time in September, and was again told that the school didn’t have the 12:1+1 class recommended for in his IEP. (Tr. 47-48; Ex. D-1).

• informed the CSE in writing that he couldn’t accept the placement since it didn’t have the 12:1+1 class recommended for his son, and he asked the CSE to let him know whether the information given to him was incorrect so that he could reconsider the placement. (Ex. D-2). The CSE responded with a form letter directed to a that did not address the information or concerns expressed in the father’s letter, but instead suggested, among other things, that the

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call the school to schedule an appointment to have his questions answered. (Tr. 48; Ex. E). responded to the form letter by restating that the recommended placement didn’t have the 12:1+1 class recommended for his son, and he again asked the CSE to let him know whether the information given to him was incorrect so that he could reconsider the placement. (Ex. F-1). The CSE didn’t respond to his letter. (Tr. 48-49). The CSE’s failure to respond in any meaningful way to the parent’s letters, either to address his concerns or to correct his understanding that the recommended placement didn’t have the 12:1+1 program recommended for reimbursement.”

• should “weigh equitably in favor of

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d

2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Disability, Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532.

A school district provides a FAPE 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. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ "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.

The Burlington/Carter test applies where the parent is seeking a program that was never recommended by the district in any of a student’s previous IEPs. However, where a Parent is not seeking tuition reimbursement for a unilateral placement, binding precedent in the Southern District establishes that consideration of the 2nd and 3rd Burlington/Carter factors is wholly unnecessary, M.N. and H.N. v. NYC Department of Education, 700 F. 2d 356 (S.D.N.Y. 2012). “because the Plaintiffs are merely seeking to maintain the services they are currently receiving at the DOE’s expense pursuant to the IDEIA’s pendency provisions, the Burlington/Carter test does not apply” Id at 369. Additionally, the SRO has followed this precedent. In Application of a Student with a Disability, Appeal No. 11-053, the Parent requested that the impartial hearing officer continue the student’s current program of SEIT and related services under pendency as she disagreed with the program recommended in the Student’s new IEP. The SRO agreed with the Parent that the Burlington/Carter analysis should not be applied because the parent did not unilaterally place the student in a private school or seek reimbursement for her expense related to the services she unilaterally obtained without the consent of the District. Since the Parent sought an order directing the school district to provide different services to the student then were recommended in his IEP, then there was no basis for the impartial hearing officer to require the Parent to prove that the services she sought were appropriate for the student,” Id at 4., see also Application of XXXX, appeal No. 12-062 (tution reimbursement analysis applicable to unilateral placement does not apply where parent requested continued placement at approved non public school as he student’s last agreed upon placement).

PRONG I

The burden of proof rests with the DOE to prove or disprove any allegations raised by the Parent in the Request for Due Process; it failed to present convincing evidence to establish that it delivered appropriate services during the 2016-2017 as it “rested” without providing testimonial evidence and only relied upon its IEP.

PRONG II

Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 9394; Application of a Child with a Disability, Appeal NO. 95-57, in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105 [2crCir 2000,cert. Denied532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21 , 26-17 [1st Cr. 2002}.

In review of the appropriateness of the proposed placement, the inquiry is whether, at the time the parent was considering the proposed placement, the DOE could implement the IEP. B.R. v. New York City Dep’t of Educ., No. 11 Civ. 8433(JSR), 2012 WL 6691046, at *6 (S.D.N.Y. Dec. 26, 2012); See also R.E. v. New York City Dep’t of Education, 694 F.3d 167 (2d Cir. 2012). To demonstrate that the private school placement chosen by the parent is appropriate, the parent must show that the services met the student’s educational needs. Burlington, 471 U.S. 359 (1985). Review of the nonpublic placement is more informal than review of the original IEP – indeed, the nonpublic placement need not even meet the IDEA’s definition of a FAPE. R.E., 694 F.3d at FN3. The ultimate issue to be determined is whether the placement is reasonably calculated to enable the child to receive educational benefits; there is no one dispositive factor in this determination. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). The private program need not employ certified special education teachers, as the requirements for district placements to meet State educational agency standards do not apply to parental placements (Carter, 510 U.S. at 14; See also 34 C.F.R. § 300.148(c)).

PRONG III

The final criterion for an award of tuition reimbursement is that the petitioners' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60,68 [2d Cir.2000]; see Carter, 510 U.S. at 16 noting that 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 non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530,5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] , affd, 471 U.S.

359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412; Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv )(I)(cc) (II)(bb).

It is well-established law that a board of education may be required to pay for private educational services for a student with a disability if the board failed to offer a free and appropriate public education in a timely manner. A free and appropriate public education “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs…” Application of a Child with a Disability, Appeal No. 99-17 (internal citations omitted). In determining whether an IEP is appropriate, an impartial hearing officer must consider “whether the School Board complied with the procedural requirements of the I.D.E.A., and…whether the I.E.P. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). While “not every procedural error will render an IEP ‘legally inadequate,’” procedural violations may rise to the level of deprivation of FAPE where, “taken together…they (1) impede the student’s right to a FAPE, (2) significantly impede the parents’ opportunity to participate in the decision making process, or (3) cause a deprivation of educational benefits.” R.K. ex rel. R.K. v. New York City Dep’t of Educ., No. 09 CV 3378, slip op. at 29 (E.D.N.Y. Jan. 21, 2011) (quoting A.H. v. New York City Dep’t of Educ., 652 F.Supp.2d 297, 307 (E.D.N.Y. 2009) (citing 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2)).

In performing an annual review of an IEP, a CSE must consider the results of the existing or most recent evaluations or assessments of the child, the strengths of the child, and the academic, developmental, and functional needs of the child, as well as the parents’ concerns for the enhancement of their child’s education. 34 C.F.R. § 300.305, 300.324; 8 NYCRR § 200.4(f)(1). The CSE must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the child, including information provided by the parent,” and should not rely upon any single measure or assessment. 34 C.F.R. § 300.4. Exclusive reliance on teacher assessments is not an acceptable method of determining a student’s current functional levels. See 34 C.F.R. pt. 300, Appx. A. As part of any re-evaluation, the IEP team “must review existing evaluation data, [and] current assessments.” 34 C.F.R. § 300.00.

To receive an award of tuition reimbursement, parents must show that a weighing of the equities supports such an award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank

G. v. Board of Education of Hyde Park, 459 F. 3d. 356, 363-364 (2nd Cir 2006), citing School Committee of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985). Although this is not a unilateral placement and tuition reimbursement case, to the extent that the Burlington/Carter analysis is deemed to be applicable, equitable considerations may be relevant in determining whether the Petitioners are entitled to the relief they are seeking. Where a district fails to provide a student with a free and appropriate public education and the [relief sought] is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (quoting Gagliardi v. Arlington Centr. Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” Id. (quoting Bettinger v. New York Bd. Of Educ., No. 06 CV 6889, 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

After reviewing all the evidence, I find as follows, that,

1. THE DOE FAILED TO OFFER A FAPE FOR THE 2016-17 SY. The

DOE elected not to present a case and instead rested on equities, thus

conceding that it failed to offer a FAPE for the 2016-17 SY. (Tr. 13).

APPROPRIATELY ADDRESSED NEEDS DURING THE

2016-17 SY. The record demonstrates that appropriately addressed needs for the 2016-17 SY. is a small school serving approximately 50 students between the ages of 5 and 21who require a small class size because they are not making progress in a larger class environment, and who have learning disabilities, speech and language issues, attentional and behavioral issues, and social deficits. (Tr. 18). The school provides its students with small classes in a small, safe, and more individualized and structured learning

environment, and a small teacher-to-student ratio with between six and eight students in a class. (Tr. 18). incorporates a lot of hands-on and multi-sensory materials and activities in the classroom, and it provides related services of speech and language therapy, occupational therapy, physical therapy, and counseling to its students, in addition to vocational and life skills training for older students to prepare them for post-school employment and activities. (Tr. 18, 27-29).

(Tr. 17-19).

class during the 2016-17 SY consisted of 7 students taught by two teachers, thereby providing with the small class size and small teacher- to-student ratio that he needed to help him manage his anxiety and distractibility, which greatly impacted his ability to make progress. (Tr. 21, 23; Ex. H-1). , who was head or master teacher, held a Masters degree, was duly certified in both special education and general education, and had 16 years’ experience as a teacher. (Tr. 24).

assistant teacher, , had 2 years’ teaching experience and was

working on her Masters degree in special education. (Tr. 24-25).

Due to the small class size, class was taught through a mix of whole group and small group instruction, with the core subjects of math, reading and writing taught in small groups. (Tr. 25). testified that couldn’t learn if he was feeling overwhelmed and anxious, and that he always needed teacher attention and support in order to learn. (Tr. 23). By placing in a small group with just one other student who was functioning on his level, the teacher was able to tailor the instruction and break down the skills and material for him, help him maintain focus and complete assigned tasks, and receive the prompting and encouragement he needed, thereby allowing him to

- --

learn the material with a minimum of anxiety and stress.

testified extensively regarding issues and how

addressed his needs. (Tr. 20-21, 23, 25-26, 29, 31-33). I find that addressed academic delays and need for classroom support in reading and math by providing him with multi-sensory instruction in a small class; a mix of small group and individualized one-to-one instruction taught by a certified special education teacher; use of manipulatives and a hands-on approach in his academic classes; and teaching and related service providers who worked collaboratively to make sure they focused on redirection, refocusing, breaking down information, positive reinforcement, as well as his vocational needs, his

- -

organizational needs, his behavioral needs, and his social skills deficits. (Tr.

18-29; Ex. H, I, J, K, L). Additionally, addressed related service needs by providing him with his mandated services of speech and language therapy once a week for 30 minutes to address his issues with articulation, sequencing, pragmatics, organization, and to assist him with his conversational/social skills; occupational therapy once a week for 30 minutes to address his fine motor, visual motor, and motor planning skills, as well as his sensory processing deficits and focusing issues; and counseling three times a week for 30 minutes each to help enhance his self-esteem, help him learn problem solving techniques, and help him to express himself appropriately in social situations. (Tr. 30-32, Ex. I, J, K, O). provided with social

skills instruction to help him learn how to begin and maintain a conversation, stay on topic, maintain eye contact, and learn perspective-taking skills. (Tr. 22,

27). Additionally, received pre-vocational and vocational instruction in

order to address his vocational and life skills needs, and the school created a behavior chart for to help address his behavioral issues in class and provide positive reinforcement in order to increase the times he presented with

- -

positive appropriate behaviors. (Tr. 22-23, 27, 32-33).

tracked progress throughout the year through progress reports that were issued throughout the year and by tracking each student’s progress

on their individualized education plans, and the evidence clearly shows that

made progress during the 2016-17 SY. (Tr. 36-37, 50-52; Ex. H, I, J, K, L). testified that math level increased from a 7th grade level to an 8th grade level during the 2016-17 SY, that his reading level also went up a grade level from 9th grade to 10th grade, and that he made significant progress academically, socially, and behaviorally. (Tr. 37).

3. A WEIGHING OF THE EQUITIES SUPPORTS AN AWARD OF DIRECT

FUNDING FOR TUITION EXPENSES FOR THE 2016-17 SY.

There is no evidence or claim that the parents interfered with or hindered the CSE in any way in its obligation to provide with a FAPE. To the contrary, the record demonstrates that father fully cooperated with the CSE, diligently visited the placement twice, and was willing in good faith to consider an appropriate public school placement for his son. See Kitchelt ex rel. Kitchelt v. Weast, 341 F. Supp. 2d 553, 557 n.1 (D.Md. 2004). EF cooperated with the CSE and attended the CSE review meeting that was held on March 7, 2016. (Tr. 42-43; Ex. 1-14, 1-16). During the meeting,

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expressed his reservations about the program recommended for (Tr. 43-45).

Upon receiving the public school placement offer from the CSE, father visited the placement, and after visiting it he again informed the CSE of his reservations about the program in a letter in which he also informed the CSE that the placement didn’t have the 12:1+1 program recommended for

45-47; Ex. C).

• •

also advised the CSE in his letter that he would visit the

(Tr.

recommended placement again when the public schools reopened in September, he requested information that would help him assess the appropriateness of the class, and he indicated his continued willingness to consider any appropriate program or placement offered to his son. (Ex. C-2).

The CSE never responded to his letter. (Tr. 47). After many attempts, able to arrange to visit the recommended placement a second time in

• was

September, and he was again told that the school didn’t have the 12:1+1 class recommended for

- his IEP. (Tr. 47-48; Ex. D-1).

• informed the CSE in writing that he couldn’t accept the placement since it didn’t have the 12:1+1 class recommended for his son and he asked the CSE to let him know whether the information given to him was incorrect so that he could reconsider the placement. (Ex. D-2). The CSE responded with a form letter directed to a

that did not address the information or concerns expressed in letter, but instead suggested, among other things, that

• call the school

to schedule an appointment to have his questions answered. (Tr. 48; Ex. E).

• responded to the form letter by restating that the recommended placement didn’t have the 12:1+1 class recommended for his son and he again asked the CSE to let him know whether the information given to him was incorrect so that he could reconsider the placement. (Ex. F-1). The CSE didn’t respond to his letter. (Tr. 48-49). The CSE’s failure to respond in any meaningful way to the parent’s letters, either to address his concerns or to correct his

understanding that the recommended placement didn’t have the 12:1+1 program recommended for should “weight equitably in favor of reimbursement.” M.H. ex rel. P.H. v. New York City Dep’t of Educ., 712 F.

Supp. 2d 125, 167 (S.D.N.Y. 2010).

for

• credibly testified that had he been offered a public school placement that he believed was appropriate that he would have accepted it. (Tr. 49,

55). Accordingly, the DOE has not demonstrated that the parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” N.R. ex rel. T.R., 2009 WL 874061, at *7 (citation omitted). Direct funding of the tuition obligation is appropriate in this case as the parents “did nothing to ‘obstruct the [DOE’s] placement process or its ability to provide [Isaac] with a FAPE.’” R.B.and H.Z. on behalf of their minor child, C.Z., v. New York City Department of Education and Joel Klein, 1-09-CV-07758-RS at 14 (S.D.N.Y 2010).

To receive an award of tuition reimbursement and/or funding associated with a private program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G.,459 F.3d at 363-64; 20 U.S.C. §1412(a)(10)(C)(iii). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., No. 07 Civ. 9648, 2009 WL 874061, at *6 (S.D.N.Y. March 31, 2009). “A major consideration . . . is whether the parents have cooperated . . . throughout the process to ensure that their child receives a FAPE.” Id.. It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund the placement.” Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA . . . Hence their pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming, as the District contended before the IHO, that the parents never intended to keep [the student] in public school for the [school year at issue].” C.L. v. Scarsdale Union Free School District, 744 F.3d 826, 840 (2d Cir. 2014). The DOE has the burden of proof with regard to equitable considerations. N.Y. Educ. Law §4404[1][c].

4. THE PARENTS QUALIFY FOR DIRECT FUNDING OF THE TUITION

BALANCE.

Tuition funding paid directly to a private school is available to parents who have satisfied the three prong test for tuition funding and who have also demonstrated that they cannot afford to front the costs of their child’s tuition.

Connors v. Mills, 34 F. Supp. 2d 795, 806-08 (N.D.N.Y. 1998); Mr. and Mrs. A.

v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011).

The parents incurred an obligation to pay tuition in the amount of $48,860,

none of which has been paid. (Tr. 52; Ex. M, N, O). credibly testified that the only classes on academic schedule that constituted religious instruction were

- classes for prayer and bible studies. (Tr. 19, 38-39).

religious classes accounted for 3 hours per week out of a total of 31 hours of - instructional time each week, or 9.6% of the total weekly instructional time. (Ex.

two

Q). Consequently, $44,169, or 90.4%, of the tuition obligation, is properly allocated to the secular instruction received at during the 2016-17 SY.

•

. (Tr. 53; Ex. R). father credibly testified that given his

- -

family’s financial circumstances, he was and is unable to pay the tuition obligation he incurred for placement at (Tr. 52-53). Accordingly, direct funding of the secular portion of the tuition owed to

- would be appropriate as it would merely “require the DOE ‘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.’” S.W. v. New York City Department of Education, 646

F. Supp. 2d 346, 359 (S.D.N.Y. 2009); see also Mr. and Mrs. A., 769 F. Supp. 2d

at 429.

- a FAPE for

For all of the foregoing reasons, I find that the DOE failed to offer the 2016-17 SY; that appropriately addressed his needs for the 2016-17 SY; and that a weighing of the equities supports an award of direct funding to of the secular portion of the tuition obligation totaling $44,169.00 Dated: May 30, 2018

Gary D. Peters, Esq. gc

GARY D. PETERS

Impartial Hearing Officer GDP:gc

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 RECORD

PARENT’S EVIDENCE

No. Date Description #pages

A 7/6/17 Impartial Hearing Request 6

B 8/22/16 Letter to CSE Chairperson 2

C 5/31/16 Letter from Parent to. 3

w/ receipt

D 9/21/16 Letter from Parent to. 3

w/ receipt

E 10/17/16 Letter to parent from CSE 1

F 11/30/16 Letter from Parent to Chairperson 2

w/ receipt

G 5/29/14 Psycho-education Report 10

H Feb. 2017 Teacher Progress Report 3

I Feb. 2017 Speech progress Report 1

J Feb. 2017 Occupational Progress Report 1

K Feb. 2017 Counseling Progress Report 1

L Oct. 2016

Plan 16

M 10/223/17 Affidavit of 1

N 8/26/26 Enrollment Contract 2

O 8/26/16 Addendum to Enrollment Contract 1

P 10/23/17 Attendance Report 1

Q 2016-17 Class Schedule ^[1]

R 2015 Federal Income Tax return 2

DOE’S EVIDENCE

No. Date Description #pages

PAYORDER

The New York City Department of Education (DOE) is directed to PAY

@ THE COST OF PLACEMENT

THE. COST OF INDEPENDENT EVALUATION

Parent 2017-2018

IT IS FURTHER DIRECTED THAT

THE DOE TO PAY THE SUM OF $44,169.00 TO THE HIN 30 DAYS FROM THE DATE OF THIS ORDER

Flnaflmdandl.ockedby on &/20/2018 1:45:23 PM

PAYORDER

PROOF OF SERVICE PROVISION

A Contract between school/provider & record of service a1 • Contract between parent and school/provider a2 • Record of attendance/aervice

B Invoice for tuition/service on school/provider letterhead and record of attendance/service (If applicable)

b1 - Invoice for tuition/service on school/provider letterhead b2 - Record of attendance/service c Schad affidavit certifying cost and enrollment/service period

D Copy of Independent evaluation report wHh date of service

E Daily transportation log identifying destination

X Other seivice document NO DOE wiR reimburse parent upon submission of documents supporting the provjslon of service,

1st Time Rnallzed and Locked by Jamee McKeeveron 2/18/2014 3:49:40 PM

PAYMENT 1st Time Flnallzed and Locked by Jamee McKeever on 5/20/20181 :45:23 PM

Dated: 20-May-18

GARYPETERS

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education haa a right to appeal the dec:ialon to the State Review Officer of the New York State Education Department under Saction 4404 of the Education Law and the indlvlduala with

DlsabUIIIN Education Act.

"The notice of Intention to seek review shaft be served upon the school district not leaa than 10 days before servtc. of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for revtew ahaH be served upon the school dlatrlct within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mall upon petitioner, the date of maHlng and the four days aubaequent thereto ahall be excluded In computing the 25- or as.day period." (8NYCRR279.2(b))

Fallure to file the notice of Intention to aeek review la a waiver of the right to appeal this dec:ialon.

Dlrectlona and sample forms for flHng an appeal are Included with thla decision. Dlrectlona and tonne can also be found in the Office of State Revtew wabalta: www.sro,nyud.aoylappeafa.htm.

Footnotes

[1] 3/7/16 IEP 16

New York City Department of Education, Impartial Hearing Decision