New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167099

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 8, 2015

December 2, 2015

May 11, 2016

Actual Record Closed Date: January 18, 2017

Hearing Officer: Amy Lynne Itzla, Esq. Case No. 157099

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2015

Attorney — Parents

Chairperson Designee, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2015

Attorney — Parents

Representative — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2016

Attorney — Parents

Parents

Parents

(via telephone)

Parents

(via telephone)

Parents

(via telephone)

Representative — DOE

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 September 2, 2015, and amended on September 28, 2015. (Parent’s Exhibits A and C) A hearing was held on October 8, 2015, December 2, 2015, and May 11, 2016, at the Department of Education (“DOE”)

offices located at 131 Livingston Street, Brooklyn, New . 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 hearing day, October 8, 2015, an Interim Order was issued, dated October 14, 2015, addressing the pendency entitlement of during this proceeding.

The following order was contained therein:

The Parent’s request for pendency, pursuant to the Findings of Fact and Decision, issued by Brad Rosken, Esq., dated May 14, 2014, is granted.

The DOE shall reimburse the Parent for tuition to the for as well as its for the 2015-2016 school year. Reimbursement shall be made upon the submission of proof of payment by the Parent 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 Case No. 157099

§200.5(j)(5)(ii)]

BACKGROUND

is an who attended the (“ ”)

for the 2015-2016 school year. He was an student during this school year. He has attended since the 2013-2014 school year, when he was a student.

has previously been classified by the DOE’s Committee on Special Education (“CSE”) as a student with a disability under “ ” He has diagnoses of and . The CSE did not convene in preparation for the 2015-2016 school year and, therefore, there was no Individualized Education Program (“IEP”) developed for and no placement made by the DOE in advance of the school year.

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 conceded that it did not offer a FAPE to for the 2015-2016 school year. (T. 23-24) The DOE did not present any witness testimony. As for the Parent’s unilateral placement at , the DOE did not challenge the placement in any way. The

DOE did not state a position with regard to the Parent’s placement or with regard to any equitable considerations that should limit or bar the Parent’s request for reimbursement.

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. 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. There is as much evidence that the DOE agreed with the Parent’s position as there is that the DOE did not. 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, from the first date of hearing, October 8, 2015, through the last date of hearing, May 11, 2016. Case No. 157099

THE PARENT’S CASE

is an at . He first taught as a grader. For the 2015-2016 school year, is in Mr. ’s class, which has students. The class meets . Mr. described ’s strengths and weaknesses related to . ’s weaknesses include, among others,

. Mr. described

, which include

, and how they benefit He also receives

. Mr.

stated that the has definitely benefitted , as it provides

.

. (T. 27-34) Mr. testified that made

progress throughout the 2015-2016 school year and that , along with its , is “definitely” an appropriate placement for (T. 33; 35)

is ’s . She

explained the circumstances surrounding her relationship with has been attending since the and is in the for the 2015-2016 school year.

She explained that has . He also struggles with . (T. 41-44) Ms. testified that benefits

from

. (T. 44-45) Ms. confirmed the tuition amount of for the 2015-2016 school year. (T. 46, Exhibit M)

is a at . She has been ’s

since January 2014. She explained that the consists of

.

.

. Case No. 157099

. In addition,

. Ms. also

. (T. 49-52)

Ms. described ’s strengths and weaknesses as a student. She described him as . He has difficulties with .

.

.

. He has benefited from

. Ms. also works with on

. (T. 52-55) Ms. described the progress made during the 2015-2016 school year. She stated that he “absolutely” required the and was “absolutely” appropriately placed at for the 2015-2016 school year. (T. 58-61)

is a at . The 2015-2016 school year is the second year she has been teaching She described his struggles with . Ms. explained that

. Therefore,

. benefits from

. There is and

. Ms. stated that has made progress in all areas and . (T. 79-90) Ms. testified that was “absolutely” appropriately placed at with the . (T. 92-93)

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 Case No. 157099

[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 has conceded its failure to offer a FAPE to for the 2015- 2016 school year. Therefore, 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 S.G. (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. Case No. 157099

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 As described above, 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 , was appropriate for for the 2015-2016 school year. Mr. , Ms. , Ms. , and provided persuasive testimony and evidence to this effect. The testimony provided by the 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 Case No. 157099

[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 would preclude an order in favor of the Parent. The record reflects the Parent’s repeated, yet futile, requests for the DOE to conduct a review in order to create a program to provide with appropriate special education services. Despite the Parent’s efforts, the DOE did nothing. The DOE failed in its obligations to and conceded such failure. The DOE was obligated to convene the CSE, irrespective of the Parent’s request. There is 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 2015-2016 school year.

2. The Parent’s unilateral placement of at , with the , 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, in the amount of . Reimbursement shall be made immediately upon the Parent’s submission of proof of payment. Dated: March 13, 2017 Case No. 157099

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

ALI:

PLEASE TAKE NOTICE

The parent and/or the New City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New 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

Parent Exhibits

Exhibit Date Description Pages

A 9/2/15 Hearing Request 6

B 5/14/14 Findings of Fact and Decision, 13

IHO Brad Rosken, Esq.

C 9/28/15 Amended Hearing Request 8

D 6/6/14 IEP (2014-15 SY) 23

E 2/13/15 Parent letter to CSE with proof of delivery 2

F 8/25/15 Parent letter to CSE with proof of delivery 2

G 5/10/13 , 23

H 3/10/16 Third Quarter Report, 1

I 11/13/15 Class Schedule, 1

J 4/7/16 Affidavit from Ronald Stewart, 5

K Undated Program Description 2

L 4/10/15 Enrollment Contract with Jump Start 4

4/15/15 Program Contract,

M 11/19/15 Affidavit of Tuition 2

N Various Dates Parent Proof of Tuition Payment 11