New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186097

Student's Name:

Date of Birth:

School District:

Hearing Requested By: Parent

Dates of Hearing: December 2, 2019

January 17, 2020

Record Closed Date: January 27, 2020

Hearing Officer: Dora M. Lassinger

The parent of requested an impartial hearing on August 29, 2019, alleging a denial of FAPE during the 2018 -2019 school year, and seeking tuition reimbursement for her unilateral placement of the student at the (hereinafter “ ”) for the 2018- 2019 school year. The parent also requested school bus transportation. 1The parent alleged that the IEP team was not duly constituted, that the DOE failed to administer the necessary evaluations, that the goals were improperly developed, with improper criteria for mastery; that the IEP did not recommend a reading program; that the student’s needs could not be met in a 12:1:1 class, and that the IEP could not be implemented in the recommended program. (Par. Ex.

A). I was designated to hear this matter on September 4, 2019, following recusal of the prior Impartial Hearing Officer.

A hearing was held on December 2, 2019 and January 17, 2020. The compliance date was extended on three occasions to allow time for trial preparation, due to availability of witnesses, and the need to obtain a transcript to render this decision. The final compliance date is February 10, 2020. (IHO Ex. I).

Department of Education (“DOE”) Position

The DOE did not present any testimony at the hearing. It offered into evidence two documents: an IEP dated April 16, 2018 and a School Location Letter dated July 19, 2018.

(DOE Ex.^[1] and 2). No evidence was presented that the IEP could be implemented at the recommended site.

At the conclusion of the hearing, the DOE argued that the parent’s request for funding for her unilateral placement should be denied, because the parent did not go to the school that was recommended for her son, or meet with staff there, prior to making her decision to re-enroll him at . (Tr. pp. 46-47).

Parent’s Position

The parent is seeking funding for tuition at the for the 2018/ 2019 school year. The parent argued that she acted reasonably by attending the IEP meeting, and contacting the school; and that the school’s offer for her to meet with a parent representative would not have enabled her to get the information she needed. (Tr. p. 47).

Evidence at Hearing

is a student with a classification of Speech or Language Impairment. His classification is not in dispute. (DOE Ex. I). , his mother, testified that was evaluated when he was in kindergarten. He was diagnosed with dyslexia and a language processing disorder; and it was recommended that he attend a special education school.

attended the school for grades one through three. (Tr. pp. 30-31).

has attended since the fourth grade, and has progressed well. (Tr. p. 32).

She testified that he suffers from anxiety, related to school and testing. She has worked with the school counselor to develop strategies to address his anxiety. (Tr. pp. 33-34). In speech/language therapy, he has been helped in developing language to address conflicts at school. (Tr. p. 34). She believes he received an appropriate education at , during the 2018- 2019 school year. (Tr. p. 35).

On April 16, 2018, the CSE met to develop a program for , when he was in the sixth grade. It was reported that, in February 2018, he was performing, at a fourth grade level for reading and math. It was reported that his comprehension skills are weak and that he has difficulty understanding higher order thinking questions and vocabulary. In math, it was reported that his basic math skills were not yet automated, that he has made continuous progress and needs one-to-one teacher attention. In writing, it was reported that he benefits from graphic organizers and needs one-top-one support by teachers. It was further reported that he continues to benefit from speech/language services (“SLT”). As a result of an Assistive Technology (

“AT”) evaluation, a portable touchscreen tablet with reading and writing support was recommended. His mother reported that he has been doing well this year, and needs a lot of one to-one support. The parent did not express social/emotional concerns. It was reported that was receiving Occupational Therapy (“OT”), focused on improving his sensory motor skills, attention, visual motor and visual perceptual skills and organization. (DOE Ex. 1).

The CSE developed three goals for Speech, three goals for reading (phonics skills, inference and analysis, using unknown words in sentences), a math goal for solving numerical patterns, a writing goal of writing a three paragraph story or research paper, three OT goals, and goals for addressing his anxiety, and frustration, and asking for help. The IEP included various testing accommodations, including double time for tests and directions read and re-read twice,

(DOE Ex. 1).

The CSE recommended placement in a special class (12:1:1) 20 periods per week, for academic subjects, and related services of Counseling, once per week individually, OT twice per week individually and once per week in a group and SLT once per week in a group and twice per week individually. All sessions were 30 minutes in duration The CSE also recommended a portable touchscreen tablet with application to support reading, writing, external keyboard and headphones. According to the IEP, the CSE considered placement in a non-public school, but concluded that the student does not need such intensive specialized instruction to address his educational needs. (DOE Ex. 1).

On July 19, 2018, the parent was sent a School Location Letter identifying , as the location where the IEP would be implemented. (DOE Ex. 2).

The parent received the letter and called the school to ask for a visit. She was informed that she could not view the area with the students, and would only be able to meet with a parent advocate or coordinator.(Tr. p. 38). She described her son as “a regular kid”; and feels he should be placed with students with normal IQ’s, language based learning disabilities and no behavioral problems. She was concerned that in a public school setting, he would be placed with children with other types of disabilities, including behavioral problems. (Tr. pp. 39-40). She testified that is thriving at , where he has a group of friends. (Tr. pp. 40-41). She acknowledged that the IEP addressed needs, including extra time for tests, questions read aloud and an assistive device for writing. (Tr. p. 42). She noted that at , he receives the services of a certified reading specialist, twice per week for forty-five minute sessions, individually, which is not part of his IEP. (Tr. p. 43). She testified that he needed this service to make progress. (Tr. p.

44).

On August 20, 2018, the parent, through her advocate, sent the CSE a 10-day notice stating that her son had not been appropriately evaluated, that the team did not have complete timely and accurate reports concerning the student’s present functioning, and that the recommended IEP and public school program were not appropriate. She provided notice of her intention to enroll at for the 2018-209 school year and seek funding. Nothing in the notice indicates in what respect the IEP was deficient. (Par. Ex D ).

On September 1, 2018, the parent signed a contract with enrolling for the 2018-2019 school year, with monthly tuition rate of $4,165.90, (Par. Ex. I) . On November 18, 2019, the parent made a payment of $13,000. (Par. Ex. I). In an affidavit dated November 22, 2019, , an employee of stated that the total tuition charged for the 2018- 2019 school year was $41,659.00; and that the balance owed is $28,659.00.(Par. Ex. H). The parent testified that paying the entire tuition was a hardship, due to a delay in reimbursement for tuition for the prior school year; and the need to pay a deposit for the 2019/2020 school year. (Tr.

p. 45).

, the director of admissions at , testified that she has master’s degrees in education and school building leadership, and has been employed at for 15 years. She is certified in secondary special education, secondary general education English and as a school building leader. is a state approved non-public school for students with language based learning needs, in grades 3 through 12. During the 2018-2019 school year, the school employed special education teachers; and provided counseling, SLT , OT, and physical therapy from certified providers. (Tr. pp. 14, 22). Classes at consisted of twelve students with one certified special education teacher, and an additional adult assistant, with a state license. (Tr. p. 15). class had twelve students during the 2018/2019 school year. (Tr. p.

24).

testified that at the start of the 2018/2019 school year, ( seventh grade year), he was reading multiple years below grade level and had high levels of distractibility and disorganization, and required a great deal of support. He struggled with anxiety, frustration and low self-esteem. His speech and language skills were impaired. (Tr pp. 17-18, 22). He received 1:1 reading instruction with a literacy specialist, twice per week; and reading instruction within the classroom three times each week, in addition to ELA. He concluded the 2018-2019 school year, with a high sixth grade score, which resulted in his being discharged from individual reading instruction. (Tr, pp, 18-19). Counseling was initiated at the start of the 2018/2019 school year to help address his anxiety and poor self-esteem. (Tr. p. 19). difficulty with organization and focus is addressed with a point system, his AT device, and by having assignments available to him digitally. (Tr. p. 20). received Counseling, SLT and OT, in the amounts recommended in the April 16, 2018 IEP, during the 2018-2019 school year. (Tr. p. 26,

DOE Ex. 1).

testified that was an appropriate placement for for the

2018/20o19 school year. (Tr. p. 21).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The

IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida

Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S.

359 (1985).

In these proceedings, the DOE presented no proof that the recommended IEP could be implemented at the proposed site. Therefore, it failed to meet its burden of proving the appropriateness of its recommendations.

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir.

2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436

(2007).

In these proceedings, the parents demonstrated that the student’s program at was specially designed to meet the student’s unique needs. The program provided at is practically identical to the program recommended by the CSE; with the addition of individual reading instruction twice per week.

progressed academically and socially during the 2018-2019 school year. He achieved dramatic improvement in his reading ability.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v.

New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012). The purpose of the 10 day notice requirement is to give the district “a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the school district.”

J.S. and A.G. v. Scarsdale Union Free School District, 826 F. Supp. 2d 635 (S.D.N.Y. 2011), citing M.C. Voluntown, 226 F. 3d 60 (2d Cir. 2000).

The record indicates that the parent cooperated with the DOE to the extent of participating in the CSE review. She did not avail herself, however, of the opportunity to visit the proposed school, because she believed the meeting which was offered to her was inadequate.

While the Courts have held that parents have the right to evaluate a school, to determine whether it can be reasonably expected to satisfy the child’s IEP; there is no legal authority that supports the parent’s right to observe the proposed class. See J. B. ex rel K.B. v. New York City Dep’t of Educ., 69 IDELR 184 (E.D.N.Y. 2017) In C.U. v. New York City Dept of Education , 32 F. Supp. 3d 210 (S.D.N.Y. 2014) and F.B. and EB v. New York City Department of Education, 132 F. Supp. 3d 522 (S.D.N.Y 2014); Application of the Board of Educ. of Arlington Central School District, Appeal No. 18-033. Nor did the parent’s speculation that her son would be inappropriately grouped with students who have behavioral problems justify rejecting the recommended program, without further investigation. The school district’s obligation is to group students based upon a similarity of needs. The law does not provide that the student’s needs must be identical; or that a student who requires additional behavioral support cannot be grouped with a student who does not. 8 NYCRR 200.6(a)(3).

Although the parent sent a 10 day notice of her intention to unilaterally place the student and seek funding; she failed to specify in what respects the recommended program and school were inappropriate. The challenged program is similar to the program at (in terms of staffing ratio and related services) although it does not include the two individual sessions of reading remediation. At the hearing, the parent testified that she felt that the IEP addressed the student’s individual needs. The parent candidly testified that she preferred a private school for her son; however, nothing in the record indicates that is a student who cannot be educated in a public school setting.

In light of the above equitable considerations, I have considered the school district’s request to deny funding. I have concluded, however, that funding should not be denied or reduced, because none of the parent’s actions prevented the school district from providing the student with an appropriate program. See Bettinger v. New York City Bd. of Educ., supra.

For the reasons explained above, I find that the parent is entitled to funding for the student’s tuition at , for the 2018-2019 school year, in the amount of $41,659.00. The parent’s testimony that payment of the entire tuition would constitute a hardship was not challenged. Accordingly, I will order that the DOE pay the balance owed directly to the

.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall:

1. Reimburse the parent $13,000 for payment made toward tuition at for the 2018-2019 school year, within 30 days of this order;

2. Pay directly to the $28,659.00, which is the balance owed. Dated: February 3, 2020 Dora M. Lassinger

DORA M. LASSINGER, 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

Impartial Hearing Officer Exhibits

I. Extensions, various dates, 4 pp.

II. Email correspondence re: transportation, 2-3-20,^[2] pp.

Department of Education

1. IEP, 4/16/18, 23 pp.

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Footnotes

[1] Subsequent to the hearing, the parent’s advocate stated that the parent was not seeking transportation through this hearing. IHO Ex. II).

[2] School Location Letter, 7/19/18, 2 pp, Parent’s Exhibits NUMBER DATE DOCUMENT No. Of Pages A 8/29/19 Hearing Request 6 B Undated Program Description 1 D 8/20/18 10 day notice 2 E 18/19 Class Schedule 1 F 6/17/19 Progress Report 6 G 18/19 Student Report Card 1 H 11/22/19 Affidavit of Payments 1 Parent proof of I 18/19 1 payments J 9/1/18 Enrollment Contract 1