New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 155434

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 25, 2015

Actual Record Closed Date: December 20, 2015

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 25, 2015

Advocate — Student

(Via Telephone) — Student

Parents

CSE Representative — DOE

DR., — DOE

PROCEDURAL BACKGROUND

A hearing was held on November 25, 2015 pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated May 1, 2015, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. The hearing was conducted on November 25, 2015, the DOE was represented by a District representative and an advocate represented the parent. The parent called 2 witnesses and submitted 22 exhibits, hereinafter referred to as “Exhibits A-V”, in support of his case.

The DOE called 1 witness and submitted 6 exhibits, hereinafter referred to as “Exhibits 1-

6” to support its case. The list of exhibits is attached hereto as “Attachment A”.

DOE’s POSITION

The DOE asserts that the Committee on Special Education’s, (hereinafter “CSE”)

recommendation for a in a , with

, (“ ”) for and , and the related services of and was appropriate to meet the student’s needs. Further, the DOE asserts that the parent’s unilateral placement is too restrictive, does not provide sufficient services and lastly, the equities do not support the awarding of tuition reimbursement.

PARENT’S POSITION

The parent’s due process complaint dated May 1, 2015 asserts that the IEP for the 2013/2014 school year was procedurally and substantively defective, that the parent’s chosen placement was appropriate, that the parent is entitled to tuition reimbursement or direct payment to the private school for the student’s tuition, that the equities supports the awarding of tuition reimbursement and the cost of related services. Additionally the parent seeks .

FINDINGS OF FACTS

The student is an student who is classified as . His classification is not in dispute. The student attended a program until he enrolled in a program when he entered the during the 2011-2012 school year. (TR 66-67) The assigned to the CSE testified at the hearing regarding the CSE meeting and the development of the student’s IEP. She testified that the participants included all the mandated members and that the IEP was developed in consideration of updated reports and the student’s teacher’s input, and that the student’s and levels were obtained from the student’s teacher. The witness testified that the CSE recommended an with because according to the school the student was in and on a in . (Ex 1) At the time the CSE met to develop an IEP for the 2013-2014 school year, the student had and it was anticipated that he . As such, the CSE determined that it was appropriate and necessary to move him into a less restrictive setting where he

. (TR 20)

The witness testified that the IEP was very appropriate based on the information that the CSE had and based on how the student was . She testified that the recommended setting provided “

”. (TR

23) Additionally, the recommended placement was comparable to the student’s private school program in which he had experienced success. (TR 27) The witness observed the student in his private school setting and spoke to his teacher at the time of her observation. The student was described as ,

, , , additionally, the teacher indicated that the student . (TR 30)

The student was described as ,

, . He was also described as and he needed , . He had difficulty with , in both and and in terms of the , and in terms of , he also had difficulty with . He had in terms of , , , and . Additionally, he was also described with , and he needed

. He had with

. In the area of , the student had difficulty with

, , , and

. He also had

, and . He had difficulty with

. (TR 45, 46)

Additionally, the student . He had

, and he was . In terms of his

, he , however,

. (TR 45, 46)

The from the student’s private placement also testified regarding the program; she testified that the student was in classes of students, with . The

, and

. The student received

in , and . The consisted of ,

, and .

The assured that the student was given his and was also given . (TR 52)

Further, during the 2013-2014 school year, the student made progress. The witness testified that the IEP fails to provide sufficient and and is inappropriate because the goals are vague and do not address all of the student’s needs. (TR 54, 55) Moreover, the witness testified that the recommended placement would not provide the student with the level of support he required to benefit from education. At the time of the hearing, the student had and had . (TR 51, 52)

With reference to the student’s schedule, the witness testified that the student attends school from and has ; on the student and that . (TR 64)

The parent received a voucher from the DOE to secure sessions of , but the voucher was not used because the student’s private setting provided the . The parent claims the voucher was sent because he was told by his advocate that the recommended program could not provide the . Although no credible evidence was submitted to refute the parent’s claim, the testimony was not convincing. (TR 75, EX 6)

The parent testified that the student’s private placement did not believe that the recommended program was appropriate for his son. The parent testified that his son was attending a in . (TR 69)

CONCLUSION 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 (FAPE) (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]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

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 parents, if the services offered by the board of education were in adequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' 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 (Burlington, 471 U.S. at 370-71). "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 offered the child a FAPE (id.; see 20 U.S.C. § 1412[a] [10] [C]

[ii]; 34 C.F.R. § 300.148).

The first step in analyzing a tuition reimbursement claim is to determine whether the district offered to provide a FAPE to the student (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). 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, 427 F.3d at 192).

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]; see Rowley, 458 U.S. at 189). The statute ensure an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). 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).

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 a Child with a Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

Pursuant to Commissioners Regulation Part 200.6(a) (3) (c), students with disabilities are to be placed in classes that consist of students who have similar needs and abilities. Additionally, the range of academic or educational achievement of the students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. Furthermore, the learning characteristics of the students are to be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. Moreover, there was no testimony that the student would have benefitted from an placement with other students.

(TR 34) The testimony of the witnesses failed to establish that the recommended placement conformed to the requirements contained in the aforesaid regulation and thus, the DOE did not meet its burden in showing that the recommended placement provided the student with FAPE. The second inquiry to be determined is whether the services selected by the parents are appropriate. The relevant inquiry requires that a private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A 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. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. Of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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 in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every 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.(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The testimony of the private school coordinator that the student made progress in the private placement is persuasive. Accordingly, I find the private placement was appropriate for the student for the 2013-2014 school year.

The final criterion for a tuition reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for Case No. 155434 evaluation by the district or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a] [10] [C] [iii]; see Thies v. New York City Bd.

of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008] There was no evidence that the parent impeded the CSE process or acted unreasonably. Accordingly, equitable considerations support the granting of tuition reimbursement for the . The testimony was unrefuted that student receives . Additionally, the parent is not entitled to reimbursement for any of the other charges imposed by the private school. (Ex H)

The Parent has prevailed on his claims that the student made progress in the private school and that equities support the granting of tuition reimbursement.

With reference to the parent’s request for and for related services or direct payment to the school, I find the evidence does not support the requests and deny the relief requested.

Order: The Parent is entitled to partial tuition reimbursement in the amount of , which amounts to . Such amount is to be issued to the parent within 30 days of submission of proof of payment and the student’s attendance for the 2013-2014 school year.

Dated: January 4, 2016

ROSLYN ROTH, ESQ.

Impartial Hearing Officer RR:

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

ATTACHMENT 1

PARENT

A DPC dated 5/1/15 4 pages

B Program Description undated 1 page

C IEP dated 5/30/13 15 pages

D FNR dated 8/6/13 2 pages

E Ten-day Notice dated 8/12/13 2 pages

F Class SCHEDULE 2013/14 1 page

G Progress Report 2013/14 6 pages

H Contract dated 4/14/13 1 page

I School Affidavit dated 7/21/14 1 page

J Attendance Record 2013/14 1 page

K 1040 Tax Return 2013 2 pages

L Class Schedule 2013/14 1 page

M Report Card 2013/14 1 page

N DPC dated 11/3/15 4 pages

O Ten-day Notice dated 8/12/14 3 pages

P Class Schedule 2014/15 1 page

Q Progress Report dated 5/12/15 4 pages

R Report Card 2014/15 1 page

S Tuition Contract dated 8/30/14 1 page

T School Affidavit dated 10/30/15 1 page

U 1040 Tax Return 2014 2 pages

V Attendance Record 2014/15 1 page

DEPARTMENT OF EDUCATION

1 IEP dated 5/30/13 12 pages

2 FNR dated 8/6/13 1 page

3 Report dated 5/27/13 3 pages

4 dated 2/28/13 1 page

5 various dates 5 pages

6 dated 8/15/13 1 page