New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 161664

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 3, 2016

September 16, 2016

Actual Record Closed Date: October 14, 2016

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date (E-Mail) Attorney DOE 08/03/16 09/16/16 (E-Mail) Attorney PARENT 08/03/16 09/16/16

(T) PARENT 09/16/16

(T) PARENT 09/16/16

Mother PARENT 09/16/16

On July 21, 2016, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parents of a (4) year old student about to attend a New York State approved public school and the New York City - Department of Education (“DOE”) - , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. An Order on Pendency was issued on consent of the parties on August 3, 2016. After adjournments were granted on consent of the parties or for cause, the impartial hearing was held on September 16, 2016. The Parent opted to submit a written closing statement in writing.

(T-145) The DOE’s and Parent’s written closing statement were received on October 14, 2016. (D-14 & P-UU) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The Parent in this case alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2016-2017 school year on procedural and substantive grounds. (D-1) At the impartial hearing, the Parent seeks the following relief:

1. The impartial hearing officer issue an order that the student's current placement at an Approved Special Education Program in a class with related services of , , and is the student's pendency placement.

2. The impartial hearing officer order the Department to conduct a comprehensive evaluation and if it is unable to do so, provide authorization for the Parent to obtain an independent evaluation at public expense at the independent provider's usual and customary rate.

3. The impartial hearing officer order the Department to complete a evaluation and if it is unable to do so, provide authorization for the Parent to obtain an independent evaluation at public expense at the independent provider's usual and customary rate.

4. The impartial hearing officer order the Department to complete an evaluation and if it is unable to do so, provide authorization for the Parent to obtain an independent evaluation at public expense at the independent provider's usual and customary rate.

5. The impartial hearing officer order the Department to complete a evaluation and if it is unable to do so, provide authorization for the Parent to obtain an independent evaluation at public expense at the independent provider's usual and customary rate.

6. The impartial hearing officer order the Department to complete a of the student to

(including ) and the , and if it is unable to do so, provide authorization for the Parent to obtain and independent at the independent provider's usual and customary rate.

7. The impartial hearing officer order the Department to develop a

(" "), if warranted by the

(" "), to address , and include the as part of L's lEP.

8. The impartial hearing officer to order the Department to re-convene the CSE at the conclusion of the hearing to review all new evaluations, including the evaluation, , evaluation, and evaluations and to develop a new IEP based on the updated evaluative data from these new evaluations, with appropriate goals in all areas, ,

, and a program.

9. The impartial hearing officer to order the CSE to increase the amount of provided on the 2016/2017 IEP from to .

10. The impartial hearing officer order that the current IEP be annulled.

11. The impartial hearing officer order that the Department refer the case to the Central Based Support Team for placement of the student in a program in an approved special education program where 's special education needs can be met.

12. The impartial hearing officer find that the 2016/2017 IEP denies a free appropriate public education.

13. The Department of Education pay the Parent's attorney's fees and expenses associated with representation in this matter.

14. any further relief that the Hearing Officer may deem just and proper to ensure the student a free appropriate public education. (Id.)

The parties executed a “partial resolution agreement” that resolved many of the issues raised by the Parent’s requested relief. (P-TT) After an on the record discuss, it was ruled that items (1) through (7) above were already resolved by the parties’ agreement. (T-25-31) The undersigned ruled that items (8), (9), (10), (12) and (14) were within the hearing’s jurisdiction, but as an IHO, items (11) and (13) fall outside of the undersigned’s jurisdiction. (T-31-8) In short, the issues to be decided at the hearing are the Parent’s request for the CSE to reconvene and place the student at the school, that the student received “ ” thereat and that the

“ ” (Id.)

THE DOE’S CASE

The DOE concedes that it did not offer the student a FAPE for the 2016-2017 school year. (T-36 & 48-9) The DOE further argues that while it cannot defend its recommended “ ” placement in a school, it is inappropriate for the student to be placed until such time as the student is re-evaluated and the clinicians at the CSE make a new recommendation. (T-41-2)

The DOE did not call any witnesses to testify on its behalf but did submit (13)

documents in evidence.

THE PARENT’S CASE

The Parent argues that the student should be in a class and not in in his “pendency” placement. (T-43) The Parent attempted to get the student in the DOE’s “ ” and/or “ ” programs. (T-44)

The Parent called (3) witness and submitted (26) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the

. (T-53) She testified that the Parent came to an open house in January, submitted the student’s IEP and they then conducted a screening of the student. (T-54)

Based on that process, they felt the student would be an excellent candidate for program. (T-55) The screening was a “ ” where the student in a “ ” and and

. (Id.)

The further testified that the private school is a program that provides the , provides , use the strategies of and use when necessary. (T-61) The private school does not have a program. (T-62) The student would be placed in a “ ” setting at the private school, where the than a “ ” and they can provide .

(T-63) The conceded that she has never observed a DOE “ ” class and that the DOE does have programs for students . (Id.)

The also testified that while the private school has a spot for the student in their , the school does not accept “pendency orders” and only takes referrals from the DOE through its Central Based Support Team ( “CBST”) or

“Nickerson” letters. (T-65-6) They do not accept “unilaterally placements” or “tuition.”

(T-66) “Tuition” at the private school for a student is and includes “related services.” (T-67)

On cross examination, the agreed that an “ ” setting is more restrictive than a “ ” setting. (T-68) On re-direct examination, the testified that they “encourage” parents to go through the CSE/CBST process for placement and contact the parents to see if they are following through. (T-69-70) The private school does not . (T-70) On re-cross examination, the testified that they also use the , as well as

. (T-71)

The Parent’s second witness is a “ ”, a and the at the student’s private school. (T-75-8) . (T-77)

The testified that the student did well in his “ ” setting last year. (T-79-80) He observed the student and saw that he . (T-81) The private school does not have . (T-82) He believes that the student should be in a class. (T-84) He recommends that the student be in a classroom than the class he was in. (T-87-8) He would

(T-90) The student required last year in order to make progress. (T-91) The student is still dependent. (T-94) He recommends a classroom with students for the student. (T-102)

There was no substantive testimony developed during the witness ’ cross examination. (T-105-10) During voir dire, the witness testified that . (T-107) There was no re-direct examination of the witness. (T-110)

The Parent’s final witness is the student’s mother. (T-111) She testified that the student is ( , classified as and currently in , although he should be in . (T-111-2) She believes that the student’s program is appropriate for him. (T-113) She submitted an application for the student to attend the DOE’s “ ” program in December of 2015, but was told that the student did not qualify because they were unable to get an “ ” for him. (T-114) She then looked at the “ ” private school that provides an program. (T-115) In January of 2016, she received a letter from the school stating that the student was appropriate for placement thereat. (T-117)

The student’s mother testified that she gave the DOE consent to test and evaluate the student for his “ ” (T-120 & D-13) She attended the student’s March 29, 2016 IEP meeting. (T-122) She let the meeting attendees know that the student had been accepted to the . (T-125) She was told that the private school was more restrictive. (T-127) She visited the recommended DOE schools and was told that they did not have specific . (T-131-4) The student has only attended programs and has been making progress. (T-136-7) She would like the student to attend the or a school. (T-

139) She believes that she needs at least .

(T-141) Currently, the student is entitled to , but he only gets due to his schedule and the availability of the providers. (T-142)

There was no substantive testimony developed during the witness ’ cross examination and there was to re-direct examination of the witness. (T-142-4) During voir dire, the witness testified that she is a licensed “ ” (T-145)

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13)

Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

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 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and

(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V.

Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34

C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

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 tuition 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 petitioners 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 tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

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, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir.

2005]) “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 student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34

C.F.R. § 300.148)

Here, the DOE concedes that it did offer the student a FAPE for the 2016-2017 school year. (T-36 & 48-9) Accordingly, the inquiry moves to whether the Parent’s proposed program is appropriate for the student. (SRO Nos.: 95-57, 94-29, 93-34 & Burlington, Supra)

It is indisputable that the student in the case is classified as . The DOE classified the student as in its disputed IEP dated March 29, 2016. (D-3) This classification was acknowledged by the student’s mother and not disputed. (T-111-2) The student's eligibility for special education and related services as is undisputable. (See 34 CFR 300.8 [c][6] & 8 NYCRR 200.1[zz][1]) It is also undisputable that “ ” (“ ”) is widely recognized as a safe and effective treatment for that has been endorsed by a number of state and federal agencies, including the U.S. Surgeon General and the New York State Department of Health.

The at the student’s school is a “

” and testified that the student requires services and that is the only methodology that he has seen the student respond to. (T-77, 91 & 107) The student’s mother testified that the student has only attended programs and has been making progress. (T-

136-7) He is currently entitled to , but only gets due to his schedule and the availability of the providers. (T-142) The testimony of the and the student’s mother was uncontroverted.

The student’s Update dated February 25, 2016 was submitted in evidence by the DOE. (D-6) It states that “ .” (Id.) In keeping with the student’s diagnosis of “ ”, the DOE recommended that the Parent receive , as customary. (D-3) The student was also recommended for “ ” services. (Id.)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the IHO.

(See 8 NYCRR 200.5[j][5][v]) Based on the above, I find that the record supports the Parent’s request for “ ” and for the student to continue to receive

The Parent would like the student to attend the “ ”, a school. (T-139) The of the school testified that they use the strategies of , and “ ” and the school has a spot for the student. (T-61, 65-6 & 71) After a “ ”, it was determined that the student would be an “ ” for their program. (T-55) The student would be placed in an “ ” setting at the private school. (T-63) The testimony regarding the appropriateness of the Parent’s preferred school is uncontroverted.

In its written closing statement, the DOE opposes the Parent’s request for the student’s placement at her preferred school, arguing as follows:

The Parent argues that there are numerous “SRO” decisions supporting an IHO’s decision to place a student at a specific school and/or placement. (P-UU) The Parent correctly notes that “A ‘Nickerson letter’ is a letter from the district authorizing a parent to place a student in a New York State-approved nonpublic school at no cost to the parent. (See Jose P. v. Ambach, Case No. 79 Civ. 270, 553 IDELR 298 [E.D.N.Y. Jan. 5, 1982]) The remedy of a Nickerson letter is intended to address the situation in which a student has not been evaluated or placed in a timely manner.” (Id.) However, here the DOE did evaluate the student and recommended a placement. (D-4 & D-5)

The testified that they do not accept “pendency orders” and only takes referrals from the DOE through its Central Based Support Team (“CBST”) or “Nickerson” letters. (T-65-6) They also do not accept “unilateral placements” or “tuition” and “encourage” parents to go through the CSE/CBST process for placement and even contact the parents to see if they are following through. (T-66, 69 70) Nevertheless, “tuition” at the private school for a student is , including related services. (T-67)

The New York State Education Department (“NYSED”) website identifies (121)

New York State approved private, created by Chapter 853 of the Laws of 1976, which are operated by private agencies and provide day and/or residential programs for students with disabilities. A CSE may recommend a placement of a student with a disability in the approved private school when it determines that the student cannot be appropriately educated in the home school district, a neighboring district or in the programs of a “Board of

Cooperative Educational Services” (“BOCES”) program.

Taken on a whole, the ’s testimony generally described the school and classroom setting. The hearing record as a whole lacks sufficient information regarding how the would actually provide educational instruction that is specially designed to meet the unique needs of the student. For example, the supports described by , such as , ,

(T-61) are the type of supports from which any student would receive benefit, rather than special instruction tailored to this student's unique needs.

(See Gagliardo, 489 F.3d at 115 [noting that reimbursement for a unilateral placement should be denied if "the chief benefits of the chosen school are the kind of educational and env ironm ental advantages and amenities that might be preferred by parents of any child, disabled or not"]; Doe v. E. Lyme Bd. of Educ., 790 F3d 440, 451 [2d Cir 2015] [affirming the determination that small class size and modified grading, alone, did not constitute special education]; Hardison v. Bd. Of Educ., 773 F.3d 372, 387 [2d Cir. 2014] [upholding an SRO's finding that the parents unilateral placement of the student w as not appropriate because the hearing record lacked "more specific information as to the types of serv ices provided to [the student] and how those services tied into [the student's] educational progress"]; see also Frank G., 459 F.3d at 365 [declining to determine whether small class size alone constituted special education]).

I agree with the findings of SRO No. 15-077 cited by the DOE, that it would be inappropriate in this instance to circumvent the statutory process, under which the CSE is tasked with reviewing the student’s evaluations and recommending an appropriate placement.

Here, under the circumstances, there are at least (120) other New York State approved non-public schools that might be able to better service the student, perhaps even at a lessor cost.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parent attended the student’s March 29, 2016 IEP meeting and visited the recommended DOE school. (T-122 & 133-4) She also submitted applications to get the student in the DOE’s own “ ” and “ ” programs and consented to the student evaluations. (T-114, 120 & D-13) Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the other issues identified in the Parent’s DPC as “requested relief”, having been either resolved or agreed to by the parties as indicated above, that upon reasonably satisfactory proof of services having been rendered, the DOE shall pay the cost of the student’s receipt of services in the amount of ; and it is further

ORDERED that

, inclusive of , and , the costs of which shall be paid by the DOE; and it is further

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related services that he should receive for the 2016-2017 school year, and provide him with a placement that provides the services ordered herein, consideration of which shall not be limited to a public school placement and shall include the student’s placement at a New York State approved non-public school.

Dated: October 18, 2016

EDGAR DE LEON, ESQ.

Edgar De Leon, Esq. EDL:

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 RECORD

Number/Letter Title Dated For # of Pages

01 DPC 07/15/16 DOE 08

02 Due Process Response 08/08/16 DOE 04

03 IEP 03/29/16 DOE 15

04 Prior Written Notice 05/27/16 DOE 05

05 Prior Written Notice 04/22/16 DOE 04

06 Update 02/25/16 DOE 04

07 02/25/16 DOE 01

08 03/29/16 DOE 06

09 03/29/16 DOE 05

10 Consideration of 03/29/16 DOE 03

11 LRE Checklist 03/29/16 DOE 01

12 Notice of IEP Meeting 03/17/16 DOE 03

13 Consent for Assessments 01/05/16 DOE 03

14 Closing Statement 10/14/16 DOE 03

A IEP 07/28/15 PARENT 18

D IEP 07/28/15 PARENT 19

E IEP 05/19/15 PARENT 19

F IEP 05/30/15 PARENT 17

H Request for Records 04/25/16 PARENT 01

I Acceptance Letter 01/25/16 PARENT 01

L Letter - List of Evaluations 05/08/14 PARENT 01

M Evaluation 04/24/14 PARENT 05

N Eval. 04/02/14 PARENT 03

O Evaluation 04/03/14 PARENT 04

P Report 03/27/14 PARENT 11

R 03/27/15 PARENT 01

S Student Eval. 03/27/14 PARENT 02

Y Summary Report Undated PARENT 09

Z Qtr. Progress Report 03/21/16 PARENT 01

AA Qtr. Progress Report 03/18/16 PARENT 01

BB Qtr. Progress Report 03/15/16 PARENT 01

CC Progress Report 2015-2016 01/26/16 PARENT 04

DD Qtr. Report 11/05/15 PARENT 02

EE Qtr. Report 08/05/15 PARENT 04

OO Qtr. Report 02/27/15 PARENT 02

PP Spec. Ed. Qtr. Report 02/27/15 PARENT 03

QQ Early Intervention Progress 03/27/15 PARENT 03

RR Early Intervention Progress 02/10/14 PARENT 03

SS Private School Description Undated PARENT 03

TT Partial Resolution Agreement 08/08/16 PARENT 01

UU Closing Statement 10/14/16 PARENT 17