New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 157103

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 21, 2015

January 14, 2016

Actual Record Closed Date: January 14, 2016

Hearing Officer: Diane Ciccone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 21, 2015

For the Student:

Attorney

parent

Student

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 14, 2016

For the Student:

For the Department of Education:

NONE

I. INTRODUCTION

On September 3, 2015, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of XXXXXXX XXXXXXX ("XXXXXXX"); the hearing was held on December 21, 2015 and January 14, 2016. Hearing sessions scheduled for October 30, and November 23, were adjourned at the parties’ request. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at the both parties’ request on October 28, 2015 November 17, December 21 and January 14, because of the unavailability of witnesses and the requirements of due process, in order for the parent to present her case.

Before granting the extension requests, I determined that the child was placed in and attending a program, and that granting the extensions would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.

II. BACKGROUND

XXXXXXX is a year old student classified with, who attends the (“ ”) Program, a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed. On March 27, 2014, the CSE held a review and issued an IEP recommending a program. On August 20, 2014, XXXXXXX, XXXXXXX’s parent, notified the CSE had failed to develop a procedurally and substantively appropriate Individualized Education Program (IEP) as the IEP team was not duly constituted, did not conduct, secure, or rely on sufficient evaluative measures to make a determination of the student’s,, and areas of need, including. The parent was not given a meaningful opportunity to participate in the development of the IEP.

On September 2, 2015,, attorney for XXXXXXX’s parent, requested the impartial hearing (Exh. A), alleging the program and placement recommendations are inappropriate, and that the department of education did not offer XXXXXXX FAPE for 2014/15. The parent seeks department of education reimbursement for XXXXXXX’s 2014/125tuition at, and the cost of related services.

III. THE CSE’S CASE

At the hearing, the CSE representative stated on the record that the department of education failed to offer XXXXXXX FAPE for 2014/15. The CSE did not present any witnesses, or submit any documents into evidence.

IV. THE PARENT’S CASE

,, of, testified (Tr. 22-81) that she has a M.S. and certification from the and is a. She is an adjunct professor at and has a private practice environment. is a school that services children who may or may not have. But they have either issues fro ages. (Tr 24-25). XXXXXXX has been in for the 2013-2014 and 2014-2015 academic years (Tr 25-26).

Ms. attends the meetings, the meetings, meetings, meets with his teachers and observes XXXXX in his classroom setting. (Tr 26). XXXXX’s was impeding his academic ability. He would. He would. (Tr27). XXXXX was placed in a. There were children in the classroom. XXXXX received during, and. (Tr 33). XXXXX had a very difficult time with and it was felt he was in the. (Tr34).

XXXXX, at the beginning of the 2014-2015 academic year was a ( ) in in the (Tr 42) (Exhibit F). At the end of the academic year he was a ( ) (Tr 44) (Exhibit G). XXXXX progressed in,,, and. ((Exhibit F). XXXXX also received,,,, and (Exhibit I)., of testified. (Tr 110-131). She has a Masters in and is NYS board certified with additional course work and training in. (Tr111). She is in and out of XXXXX’s classroom on a regular basis, touches base with his teachers regularly, formal meetings and reviews all written reports. (Tr126)

XXXXX is in a class of students with similar. (Tr119) rather than similar (Tr 119) with similar (Tr118) and (Tr116). XXXXX has made progress over the academic 2014-2015 school year. (Tr121-124). She opined the program overall is appropriate to all XXXXX’s needs and the school also provides (Tr127).

XXXXXXX’s parent testified (Tr. 81-103) that XXXXXXX,. XXXXXXX started with services and then went to a in a. When he he went to an with children. (Tr83). He attended in 2013-2014. Prior to the 2014-2015 academic school year Mrs. XXXXXX participated in an IEP and a placement was recommended. (Tr84). Mrs. XXXXX observed the proposed placement and advised the DOE and advised the DOE her concerns. (Tr85).

She advised the DOE in writing of her concerns with the program and placement (Exhibit B) and if they were not met she would unilaterally place XXXX back at. She did not receive a response from her letter and placed XXXXX at.(Exhibit C). She signed a contract. (Exhibit C). She submitted post-dated checks and still owes a balance for the 2014-2015 academic year.

Mrs. XXXXX testified that XXXXX has made progress in his and in the 2014-2015 school year. (Tr 97-101).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that XXXXXXX’s parent is entitled to reimbursement for XXXXXXX’s 2014/15 tuition at, because the department of education failed to offer XXXXXXX FAPE, XXXXXXX’s parent has shown that is appropriate for XXXXXXX, and equitable considerations support a tuition award.

A 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 FAPE (20 U.S.C. § 1400[d][1][A]; 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). 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, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression.

Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.

I find that XXXXXXX’s parent met the Carter requirements. The department of education admittedly did not offer XXXXXXX an appropriate program or placement for 2014/15. I find that is an appropriate program for XXXXXXX, even though it is not a SED-approved program. offers a,, and. All mandated related services are provided. XXXXXXX is in a class with students of similar. The program effectively addresses XXXXXXX’s. The record indicates that XXXXXXX has made progress at, and has improved. ’s program seems reasonably calculated to ensure that XXXXXXX benefits and makes and progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition. I find that XXXXXXX’s parent fully cooperated and communicated with the CSE, and that she made a timely hearing request. I find that the amount of reimbursement requested is reasonable. Therefore, I conclude that XXXXXXX’s parent is entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the part of XXXXXXX’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment ’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion.

Tuition reimbursement does not create a religious education. It simply makes paren which they would not have made, if their the appropriate educational placements.” I find that ’s curriculum does not preclude an award of tuition reimbursement. The record indicates that about of XXXXXXX’s school day is devoted to; therefore the parent shall be reimbursed for of the cost of XXXXXXX’s program, exclusive of any fees or contributions, plus the cost of related services.

VI. ORDER

IT IS THEREFORE ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse XXXXXXX’s parent for (a) of the 2014/15 tuition at, less any fees, contributions, or scholarships, up to a maximum amount of, and (b) the cost of related services, up to a maximum amount of.

Dated: February 18, 2016

DIANE CICCONE, ESQ.

Impartial Hearing Officer

DC:

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service 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 review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

Exh. # Description Date Pages

A Request for Impartial Hearing 9/2/15 4

B. Notice of Unilateral Placement 8/20/14 3

C. Contact and Addendum 9/4/14 2

D. Program Description 2014-2015 1

E. Class Schedule 2014-2015 1

F. Goals and Progress Report 9/2014,1/2015,6/2015 21

G. End-Year Progress Report June 2015 5

H. U.S. Individual Income Tax Return 2014 2