New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 170902

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 21, 2018

Actual Record Closed Date: March 20, 2019

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2018

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Grandfather — Parents

Grandmother — Parents

CSE Coordinator — Parents

(via telephone)

Representative — DOE

INTROD CTION

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 Parent1 by letter dated November 10, 2017. (Exhibit B) A hearing was held on September 21, 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)]

BACKGRO ND

is a who entered the 2017-2018 school year as a, third grader. He had been classified by the DOE’s Committee on Special Education (“CSE”) as a student with a disability and attended public school for three years prior to the 2017-2018 school year, with an Individualized Education Program (“IEP”).

By letter to the CSE, dated August 21, 2017, through counsel, the Parent notified the DOE of their intention to unilaterally place at the (“ ”) for the 2017-2018 school year and to seek funding from the DOE for the placement. (Exhibit A) The Parent referred to the deficiencies in the most recent IEP The te m “Pa ent” is used to collectively efe to both of pa ents.

created by the CSE, which included the continuation, for a fourth year, of placement in an Integrated Co-Teaching program. The Parent also stated that they challenged the DOE’s plan to maintain placement at for a fourth year, since the school is inappropriate for him. By letter to the DOE, dated November 10, 2017, the Parent confirmed that had been placed at due to the DOE’s failure to offer him a Free Appropriate Public Education (“FAPE”), and requested an impartial hearing seeking tuition reimbursement and special education transportation. (Exhibit B)

POSITIONS OF THE PARTIES

THE DOE’S CASE

At the outset of the impartial hearing, the DOE’s representative stated that she “found out about this case yesterday afternoon,” and requested an adjournment, since she did not have witnesses available and wanted to “look at the evidence.” (T. 5-7) The DOE’s representative did not contest that the DOE had advance notice that the hearing had been scheduled. In fact, the DOE’s Impartial Hearing Office received email notification of the date, from the hearing officer, on July 17, 2018. In addition, On September 20, 2018, at 8:10 am, the day before the hearing, another CSE representative, , stated in an email, which included the representative who appeared at the hearing, that the DOE would not be presenting witnesses at the hearing. There was no request made for an adjournment until the parties convened and the hearing opened on September 21, 2018. The adjournment request made at the hearing was denied. The DOE did not make an opening statement and did not present a case.

When asked by the hearing officer if the DOE was conceding its failure to offer a FAPE to , the DOE’s response was that, “[t]he Department’s position is that they provided an IEP in the public school that he was at - - and that that was the FAPE that was offered through that IEP.” While the Parent’s request for the impartial hearing made reference to a CSE meeting of June 22, 2017, held to develop an IEP for for the 2017-2018 school year, the IEP was not submitted into evidence and, again, the DOE did not present a case to defend its IEP. The DOE did not assert a position with regard to the Parent’s unilateral placement and did not raise any equitable considerations that would affect the case. (T. 10-11)

The DOE did not cross-examine the Parent’s two witnesses following their direct testimony and waived its opportunity to make a closing argument.

THE PARENT’S CASE

is mother. She described as very kind, sensitive, friendly, empathetic, creative, energetic and fun-loving. His weaknesses include focusing on one thing at a time, paying attention to detail, and transitioning from preferred activities to non-preferred activities. He also suffers from anxiety, which has social and academic effects. explained that had early struggles with a speech delay and then other difficulties arose with focus and attention. He received services through early intervention and the Committee on Preschool Education (“CPSE”). attended , his locally zoned school, from kindergarten through second grade. He had an IEP during that time and was in an ICT class every year. (T. 12-15) is a teacher with the DOE and has taught in an ICT class. The 2016-2017 school year was second grade year.

said it was “terrible” and “traumatic” for him. described an incident during which the special education teacher “publicly shamed him” while he was acting on his anxiety. stated that, in addition to him being placed with that special education teacher, there were too many bodies in the classroom, since there were over 20 children and over five adults. It was apparent that there was a decline coming with , since the school could not provide what he really needed. (T. 15-17)

confirmed that she sent a letter to the school, dated June 1, 2017, stating, in part: “As you know, is well below age and grade levels in all academic areas. The gap between and his classmates is only widening and this is affecting his self esteem.” (Exhibit C) The Parent notified the school that there would be an update to

2016 neuropsychological evaluation, with , and that it would be forwarded to the school upon completion. The Parent also requested a “new CSE review for purposes of developing a new IEP and making a program recommendation which is in line with ’s recommendations.” The Parent stated that, “The IEP that was recommended in February 2017, is a repeat of a program that has not resulted in progress these last 3 school years.” The letter provided consent to the DOE to conduct any evaluations necessary and to speak with and psychotherapist. (T. 17-

18) testified that an updated evaluation was conducted by and shared with school. The school did not do anything after receiving the evaluation.

(Exhibit G; T. 18-19)

testified that attended for the 2017-2018 school year. The school was chosen because it has a very small setting with two teachers, while being academically advanced and better-suited to his social and emotional needs. The school was very much able to address weaknesses and needs. Everything was personalized and modified to his needs, which was something that the DOE had never done. “thrived” and “excelled” during the school year. His ability to focus and pay attention to detail changed. His writing “skyrocketed” from three-word sentences to full paragraphs. His handwriting improved. ability to transition on his own improved with the help of manipulatives on the table and visuals on the wall. was “absolutely” appropriate for for the 2017-2018 school year. (T. 20-22)

identified the enrollment contract signed by her husband on March 24, 2017. She explained that, after signing the contract, they remained open to a public placement, and would have placed in one that was appropriate, since would have allowed them to get out of the contract. (Exhibit E; T. 23-25)

is the CSE Coordinator for the elementary division and represents the school for CSE reviews and hearings. She was previously a head teacher at the school. has a master’s degree in special education and has her New York State certification in special and general education. She described the school as a kindergarten through 12th grade school for students with learning disabilities. There are approximately 200 students. Although is a school and values a part of the traditions at the school, it is not a religious school. In the elementary division, students are placed in classes, which are technically ungraded, based on their age, their grade level, and positive peer relationships. Most of the classrooms have 10 students, with maybe 11 students in some upper grades. There are two teachers in each classroom.

There are smaller, formal reading and math groups, based on a student’s levels and the skills they are working on. For those groups, of three to five students, a student is not necessarily with their classroom teacher. There is also a lot of small group work in the classroom. (T. 28-33)

stated that there were ten students in classroom during the 2017-2018 school year. He was in a group of students with similar needs to his. She explained the classroom schedule and some of the acronyms it contains. “DEAR” stands for “drop everything and read,” which is a period of silent reading of a book a student chooses. “SEL” is “social-emotional learning,” which is instruction to support students with their social-emotional learning and development overall, using the RULER program from . During “choice time,” which is like indoor free time, students are offered a few options, which might include building, drawing, and board games. Students play in small groups during that time. “Silent Meeting” is a period which occurs twice a week. During the first period of the week, which is on Mondays, the students are presented with a query to think about in silence. For example, they could be asked about their favorite thing they did over the summer. During the second period, which is held on Fridays, students answer the query. At that time, they also share community news, during which each classroom shares with the school community something they are working on.

(Exhibit F; T. 34-37; 42)

stated that teachers observed evidence of his diagnoses of ADHD, expressive and receptive language disorder, anxiety, and a learning disability in reading and writing. They described as struggling with organization and impulsivity.

He is very upbeat and sometimes, out of excitement, he will blurt out an answer. He has trouble remaining in his seat, raising his hand, following a plan, and moving onto something else if he want to continue what he is doing. Transitions can be difficult for , especially from a desired activity, like free time, to one he is less interested in, like a learning time. Sometimes, does not understand directions the first time they are given and needs repetition, or may misunderstand words, even those familiar to him.

has difficulty with multi-step math problems and accuracy because works to get them done rather than to answer them thoroughly and accurately. Similarly, with reading fluency, because he wants to get it done, he will make errors and that affects his comprehension. When writing, is often unaware of errors he has made.

described some of the methods used by teachers to support his areas of need. For organization, the teachers used a visual schedule with specific visual routines, and gave reminders and time warnings as a transition was approaching. The teachers used an individualized behavior plan for , related to his calling out, in addition to the group behavior plan. To support him with his energy level and hyperactivity, had movement breaks. He sat in a rocking chair and used fidget objects for his hands, so he could stay engaged while still moving. For reading, used a tracker to follow what he was reading. For writing, he used a quick outline, which helped him organize his thoughts and prepare to write. He used an editing checklist to review his work for errors after completing it. To support his math facts, his teachers gave him fact drills and fact practices. (T. 37-42)

testified that the teachers found the class size was appropriate for because the smaller setting, with fewer individuals, was less distracting. It also allowed more opportunities for the teachers to check in with to make sure he was understanding what was going on and following along, and to redirect him if needed. The smaller reading and math groups were appropriate for in that the teachers could support his engagement and focus, and watch him very closely to identify how he progressed and where he struggled. testified that made academic progress during the school year. She also stated that he made social and emotional progress. For example, he built a nice group of friends and improved his ability to greet his friends and ask questions about them. stated that, overall, was an appropriate setting for for the 2017-2018 school year. (T. 42-45)

FINDINGS OF FACT AND CONCL SIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA)

(20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v.

Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200

01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE’s representative stated that the DOE offered an IEP, which provided a FAPE. However, the DOE did not take any steps at the impartial hearing to establish that it offered a FAPE to for the 2017-2018 school year. The DOE did not offer evidence or witness testimony. There was a reference made to an IEP, but no IEP offered. 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 2017-2018 school year.

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. described, in detail, learning profile, weaknesses, and educational needs, and the methods used by his teachers to support him. ’s program was appropriate for for the 2017- 2018 school year. The small setting and class size, and even smaller reading and math groups, offered, among other things, individualized and specifically-tailored instruction, a greater opportunity for teacher intervention in the moment, when needed, less distraction, and the availability of movement breaks. The program supported academically, socially and emotionally. and 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 evidence, the testimony, or the position presented by the Parent, in the hearing request and at the hearing, 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 could affect an order in favor of the Parent. The record reflects the Parent’s continued communication and cooperation with the DOE. There is clearly no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to offer a FAPE to for the 2017-2018 school year;

2. The Parent’s unilateral placement of at was appropriate for the 2017-2018 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 payments it made to for tuition for the 2017-2018 school year. The total amount paid by the Parent was $48,170, which reflects the full tuition of $63,170 less a financial aid grant of $15,000. Payment to the Parent of $48,170 shall be made immediately upon submission of proof of payment;

5. To the extent that special education transportation was not provided to , to and from , for the 2017-2018 school year, the Parent has not sought any financial remedy for that failure and none is ordered.

However, it is ordered that the DOE was obligated to provide special education transportation to and from to for the 2017-2018

school year.

Dated: April 12, 2019

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

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

PARENT

A Ten Day Notice, 8/21/17, 3 pages

B Request for Impartial Hearing, 11/10/17, 6 pages

C Letter to , 6/1/17, 1 page

D Letter from Psychologist, 6/17/17, 1 page

E Enrollment Agreement, 3/24/17, 4 pages

F Room Schedule, undated, 1 page

G Neuropsychological Update, 6/16/17, 9 pages

H Mid-Year Report, 1/31/18, 18 pages

I Year End Report, 6/26/18, 18 pages

J Tuition Affidavit, 2/25/18, 1 page

K Scholarship Letter, 6/21/17, 1 page