New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156977

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 29, 2015

April 20, 2016

June 1, 2016

Actual Record Closed Date: July 26, 2017

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2015

Attorney — Parents

Chairperson’s Designee, — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2016

Attorney — Parents

Mother — Parents

Chairperson’s Designee, — DOE

DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2016

Attorney — Parents

Mother — Parents

Chairperson’s Designee, — DOE

DOE

(via telephone)

Parents

(via telephone)

Parents

(via telephone)

Parents

(via telephone)

Parents

(via telephone)

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated August 31, 2015, and amended by letter dated November 6, 2015. (Parent Exhibits A and I) A hearing was held on October 29, 2015, April 20, 2016, and June 1, 2016, 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.

After the first day of hearing, October 29, 2015, an Interim Order was issued, dated December 10, 2015, addressing the pendency entitlement of during this proceeding. The following order was contained therein:

The Parents’ request for pendency, pursuant to the Findings of Fact and Decision, issued by John Farago, Esq., dated January 8, 2015, is granted retroactive to August 31, 2015, the date on which the Parents filed their request for an impartial hearing. The DOE shall reimburse the Parents for tuition to the , including its , for for the 2015-2016 school year.

Reimbursement shall be made upon the submission of proof of payment by the Parents to the DOE. This order will continue in effect for the 2015-2016 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.

In scheduling the hearing date, 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)]

BACKGROUND

is a boy who attended the (“ ”) at age for the 2015-2016 school year. He was a student during this school year. A meeting of the DOE’s Committee on Special Education (“CSE”) was conducted on July 29, 2015, to develop an Individualized Education Program (“IEP”) for for the 2015- 2016 school year. was classified by the CSE as a student with a disability under

“ .” He has diagnoses of

. The CSE recommended an

(“ ”) class for ’s and for his

. In addition, the recommendation included

designated as “

.” The CSE also recommended

and . (DOE Exhibit 1/Parent Exhibit C)

The Parent asserts that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2015-2016 school year and is seeking tuition reimbursement for the private placement at , including .

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE presented extremely limited testimony from two participants in the CSE meeting held on July 29, 2015. served as the District Representative and the for the CSE. was the assigned to the CSE.

Ms. ’s testimony was defined by her inability to independently recollect the CSE meeting, the IEP, or the student. The following portions of her direct testimony exemplify the weakness of her testimony:

(T. 35)

(T. 35-36)

(T. 36)

(T. 38)

Clearly, Ms. was unable to recall anything in relation to , the CSE meeting or the IEP. Even the opportunity to review the relevant documents failed to refresh her recollection.

Ms. listed the participants in the CSE meeting of July 29, 2015, and stated that the CSE reviewed ’s evaluation and previous IEP prior to the meeting. (T. 63-64) She confirmed that the CSE recommended . (T. 65) When asked why the CSE

made its recommendation, Ms. explained that and the CSE “ .” (T. 68) Ms. reviewed ’s scores on the , as reflected in the IEP. She read the scores on the subtests and stated in which range the scores fell. (T. 71-73) Ms. descried ’s weaknesses as follows: “ ” (T. 75-76) Ms. confirmed that no representative from ’s school participated in the CSE meeting. In addition, there was no classroom observation conducted by the DOE in preparation for the CSE meeting. (T. 79) The Parent was the only participant in the meeting who had met (T. 80) Ms stated that the CSE

did not consider an “

.” (T.

80) Ms. responded in the affirmative when asked

. (T. 80) Later in her testimony, Ms. stated that, “

.” (T. 91) Ms.

testified that the Parent cooperated in the meeting and expressed her concern that a ‘

.’ (T. 81-82)

THE PARENT’S CASE

is a at . He works as a and also

teaches a class. Mr. sees in his class and at other times.

is a class in which are discussed. In ’s section of the class there are students.

’s primary educational deficits are

. Earlier in the year,

.

.

.

(T. 104-106) In working with , Mr. described the methods and activities he has used wth him and noted his progress in all deficit areas.

.

.

. (T. 107-112) Mr. stated that definitely benefits from the class of students, . Mr. stated, “ .” A class of students would . It would not be an appropriate setting for him. (T.113-117)

is the and is also a . She has worked with since he started at . He is one of her students. She described the program as

. (T. 126-130)

Ms. described ’s educational deficits. She stated that . This affects .

There is an and he has difficulty with . She

stated that

. .

He has made progress throughout the year with . All of his teachers are consistent in their approach with him and he has responded to that positively.

To improve his , which is impacted by his , the teachers have implemented

. Ms. frequently .

. ’s progress in this area is demonstrated by

. To address

’s , the teachers have

. The use of , along with , ensures that

.

.“

….” (T. 130-134) has trouble , but through and , he has with those tools. He has made progress with . (134-136)

Ms. described how the benefits

. She can help him .

Ms. stated that has made overall progress with . (T. 135-136)

Ms. described ’s . He has difficulty

. Ms.

has worked with , through ,

, . The class

has also proven helpful in . Since

, they have kept him involved in .

. has made progress .

He has benefitted from seeing the and in the class.

(T. 137-138) Ms. expressed her opinion that benefits from and that would not be appropriate for him. It is very important for , and

,

.A would be and “

.” When asked if ’s

would be able to compensate and allow him to participate in a large class, Ms. noted . His would “ .” “

.” (T. 139-140)

is the at and

’s teacher in his . Mr. described ’s

as .

. Mr. explained that

. The class has

. .

“

” (T. 143-146)

Mr. explained that the enables him to

, and to . has made progress over the year, as demonstrated by

(T. 146-147)

Mr. explained that

.

.

.

. Using

, communicating with ’s teacher, and making sure the entire support team is using the same approach, have also benefitted He has made much progress with . (T. 147-149) affect his . At the beginning of the year,

. .

. ’s

affected his

. greatly benefitted from the

, , and the communication between the teachers and Ms. . has progressed in all deficit areas. (T. 149-151)

Mr. stated that, “

.” Mr.

stated that a classroom with would not be appropriate for him. A teacher would not be able to or provide . Despite his , “

” (T. 152-153)

is a . Dr. conducted a comprehensive evaluation of in February 2014. Dr. diagnosed with

.

. , struggles with

. While Dr.

did not diagnostically identify as having , he believes stems from . showed significant weaknesses in . All of the deficit areas described by Dr. make it “

.” “

.” Dr.

stated that would “

.” Even with his

, he would have difficulty in a due to ,

, and . (T. 157-168)

Ms. is ’s mother. Ms. Explained that she first noticed in . She had him evaluated and was told he has .

He began attending in the , which

. Ms. attended a CSE meeting on July 29, 2015. At the meeting, she discussed the issue of , stating that he really needs a . She explained that . He needs , he needs , he has , and . Ms. visited the school recommended by the DOE. During her visit, she learned that they did not have .

Ms. testified that she would send to a public school if the placement and program were appropriate. (T. 122-124)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

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

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

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

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

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

The DOE chose not to present an opening statement at the outset of the hearing or to make a closing argument at the end of the hearing. (T. 29, 177) While the DOE presented two witnesses, their limited testimony did not establish that the DOE offered a FAPE to for the 2015-2016 school year. Ms. , who served as both the and the District Representative for the CSE did not offer any substantive testimony. Although Ms. had some recollection of , the CSE meeting and the IEP, her testimony was far from sufficient to demonstrate that the DOE offered a FAPE to She wavered between the being recommended for or just for . The DOE did not present any testimony to describe what an would look like in its size, student to teacher ratio, composition of the students, teaching methods and strategies, etc. There also was no testimony with regard to the provision of the , beyond the fact that it was recommended. There is a critical missing piece in the CSE’s recommendation: the provision of was limited to .

There was no recommended for for Case No. 156977

. The CSE’s recommendation placed in classes, with no supports, for . On its face, the CSE’s recommendation indicates its position that did not require any special education services for the remainder of his school day in all other classes. In those other classes, how were the identified by the CSE to be implemented and managed in a class? The CSE wrote, “ ” However, he was not recommended for placement in a setting with supports. He was only recommended for placement in a . The deficits, as described in the IEP, do not disappear outside of . . As just one example, ’s struggles with and would certainly exist and impact his performance in his class. It is not necessary to describe the numerous ways ’s deficit areas affect him in all classes. It is inconceivable that the CSE would provide special education services for only a fraction of ’s school day.

The School Location letter, dated August 11, 2015, from the DOE to the Parent, notified the Parent that, “ .” (DOE Exhibit 2) Ms. testified that, during her visit to the offered school, she was told that the school did not have an class. The DOE did not rebut that testimony in any way. For the foregoing reasons, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program she has 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, she 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])

The DOE has not challenged the appropriateness of the program at for for the 2015-2016 school year. No evidence has been offered to dispute the testimony of the educational professionals who have worked with , or the testimony of ’s mother. There was no cross-examination of Ms. The DOE did not challenge the Parent’s unilateral placement in any way. There was no position taken or argument made with regard to the appropriateness of the Parent’s placement.

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , and who provide direct services to him, have all determined and agree that ’s program, including the program, was appropriate for for the 2015-2016 school year. Mr. , Ms. , Mr. , Dr. , and Ms. provided persuasive testimony and evidence to this effect. The testimony provided by these witnesses strongly affirms the appropriateness of the program. The entire program, including the component, was reasonably calculated to allow to make meaningful progress and to address ’s individual needs. In fact, made meaningful progress through his participation in the program.

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 Parent communicated with the DOE, in , throughout the relevant time period. By letter dated February 19, 2015, the Parent informed the CSE that she was required to sign a contract with for the 2015-2016 school year at that time.

(Parent Exhibit D-1) She explained that she did so to ensure a place for “ .” She stated that if that did not happen, she would be seeking tuition reimbursement. She continued to communicate with the CSE though her letter dated October 20, 2015, describing her visit to the proposed school. (Parent Exhibit D-3) Although she stated that the informed her that there was no , the record reflects that the DOE did not respond. As noted earlier, the DOE has not rebutted or denied that the school could not implement the IEP.

The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The DOE failed in its obligations to There is no basis on which to reduce or modify the remedy for the Parent. The Parent’s testimony, as well as Ms. ’s, confirms that the Parent was entirely cooperative.

Absent an opening statement or closing argument, the record is devoid of any position asserted by the DOE or argument in support of its case, or with regard to any equitable considerations that should limit or bar the Parent’s request for reimbursement.

A review of the record establishes that there was no disagreement articulated by the DOE to the claims raised and the assertions made by the Parent in its request for an impartial hearing, and in the presentation of its case at hearing. The DOE remained silent in that regard, although it had the opportunity to take a position, to oppose the Parent’s position, or to otherwise actively participate in the hearing process.

ORDER

1. The DOE failed to offer a FAPE to for the 2015-2016 school year.

2. The Parent’s unilateral placement of at , with the program, was appropriate for the 2015-2016 school year.

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

4. The DOE shall reimburse the Parent for the full cost of tuition and fees paid to for ’s enrollment for the 2015-2016 school year, including the Program, the , and the , in the total amount of . Reimbursement shall be made immediately upon the Parent’s submission of proof of payment.

Dated: August 21, 2017

AMY LYNNE ITZLA, ESQ. ALI: 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.

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

Department of Education Exhibits

Exhibit Date Description Pages

1 7/29/15 IEP 26

2 8/11/15 School Location Letter 1

3 8/12/15 Prior Written Notice 4

4 7/23/14 Letter from Parent 2

5 6/18/14 Letter from 3

6 2/2014 17

Evaluation

7 8/25/15 Letter from Parent 1

8 7/6/15 Letter from CSE 1

9 7/15/15 Meeting Notice CSE 3

10 7/29/15 CSE Review Meeting Minutes 2

Parent Exhibits

Exhibit Date Description Pages

A 8/31/15 Impartial Hearing Request 9

B 1/8/15 Findings of Fact and Decision, 10

IHO John Farago

C 7/29/15 IEP 21

D various Parent correspondence to CSE 23

2/19/15, 8/25/15, 10/20/15

E 2/15/15 School Contract 4

F 2/12/15 Proof of Payment - Check 1

G 1/22/16 Schedule 1

H 12/123/15 Report Card 1

I 11/6/15 Amended hearing Request 9

J 4/26/16 Affidavit from , 4

,