New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By:

Dates of Hearing: February 10, 2011

April 5, 2011

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2011

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2011

DOE

On February 10, 2011 and April 5, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the education of XXX (“the student”).

The proceeding was initiated at the request of the by correspondence dated September 24, 2010, received by the Impartial Hearing Office on September 29, 2010. (Ex. 3) I was appointed Impartial Hearing Officer on October 1, 2010. The resolution period concluded on October 27, 2010. On November 4, 2010, after prehearing telephone conferences and emails with the parties, a hearing was scheduled for December 9, 2010, the first mutually available date for the parties and the hearing officer. By letter dated November 29, 2010, received by the Impartial Hearing Office on December 2, 2010, the filed an amended due process complaint. (Ex. U) Consent to amend was granted on December 6, 2010. Accordingly, the December 9, 2010 hearing was cancelled and a second resolution period commenced. After the conclusion of that resolution period on January 4, 2011, a hearing was scheduled for February 9, 2011, the first mutually available date for the parties and the hearing officer. (T. 3-5)

At the February 9, 2011, hearing, I was informed that the parties were not prepared to go forward at that time because they had been engaged in settlement discussions which had been determined to be unsuccessful only earlier that day. An adjournment request from the parties was granted. (T. 5-6) A hearing was held on April 5, 2011, the first mutually available date for the parties and the hearing officer.

The initial compliance date after the amended complaint in this matter was February 18, 2011. One or both parties moved to extend the compliance date on four occasions in light of the scheduling of witnesses, submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is June 18, 2011. The record closed on May 9, 2011, upon my receipt of closing memoranda.

Background

The student is an almost year old who is classified . That classification is not in dispute. was diagnosed with / at about . (T.35-36) received and attended . (Ex. E) has attended the School (“ ”), a school that is not “ ” a school with which school districts may contract to provide for students with , since September 2007 ( ). (Ex. E) and school for the 2009-2010 school year have been funded by the DOE pursuant to settlement.

The CSE had convened on April 26, 2010, when the was and in the grade to develop a program for the grade. It developed an IEP which stated that September 1, 2010 was the projected initiation date with the duration of to be one school year. The CSE recommended: class in a school ( ) and of and , . The CSE also recommended for July and August 2010. With regard to changes from the prior IEP, the CSE stated that it had initiated individual and reduced the for well the of the from to . (Ex. Q)

By letter dated July 16, 2010, the CSE recommended a in which the student‟s (“the ”) . (Exs. R, S, T)

The concluded that the DOE failed to provide the student with a free appropriate public education (“FAPE”) for the 2010-2011 school year and enrolled him at for that year which they assert is an appropriate placement. (Exs. 3, U)

At this time the seek DOE payment of by of to the and to of ; for a total of one hour per week each for therapy (“ ”), (“ ”), (“ ”) and for the remainder of the school year and for July and August 2011; reimbursement for provided by the parent since July 2010. (IHO Ex. I)

The DOE has conceded that it did not provide a FAPE. However, it asserts that is not appropriate for this student, and that even were it to be determined to be appropriate the should be denied the requested relief for various reasons including equitable considerations. (IHO Ex. II)

Witnesses Presented

The presented the following witnesses: , of (“ ”); , the student‟s at the (“ ”); and the (“the ”).

The DOE presented no witnesses.

Findings of Fact and Conclusions of Law

A. For-Profit Status of

It is undisputed that is a for-profit entity. The DOE asserts that for that reason does not satisfy the definition of an elementary school under the IDEIA and therefore the have failed to state a claim upon which relief may be granted. (Ex. II) I find that claim lacks merit. A.D. & M .D.v. Bd. of Educ of the City Sch. Dist., 690 F. Supp. 2d 103, 215 n. 16 (S.D.N.Y. 2010); see also D.A. v. New York City Dep’t of Educ., No. 09 Civ. 5097, 2011 U.S. Lexis 9475 (S.D.N.Y. Feb. 1, 2011)

B. Burlington/Carter Factors

The legal standard applicable to a request for reimbursement for educational is well established. Reimbursement is granted if: (1) the offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the selected by the parent are appropriate ( ) ; and (3) equitable considerations support the parent's claim ( ). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). Further, the DOE may be ordered to make a retroactive direct payment to an appropriate private school for expenses already incurred when the DOE has failed to provide a FAPE. D.A. v. New York City Dep’t of Educ., No. 09 Civ. 5097, 2011 U.S. Lexis 9475 at *67 (S.D.N.Y. Feb. 1, 2011)

the DOE has conceded that it failed to provide a FAPE, I turn to , the appropriateness of the ‟ unilateral program.

When a public school system has failed to provide FAPE, the program and chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The bear the burden of proof with regard to the obtained by the for the student. However, are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the be Stateapproved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”, Frank G, 459

F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). With regard to the student‟s , the CSE stated that the student‟s cognitive functioning is in “at least the range” with significant discrepancy between verbal and non verbal abilities and delays in language, gross motor and fine motor development and poor pragmatic skills. It is noteworthy concerning cognitive functioning level that teachers reported that academically was at about grade levels at at the time of the reports, the CSE considers the student to be, based upon age, a grade student at this time. (T. , Ex. Q actual academic functioning levels are therefore clearly higher than average for age. (Ex.

Q) The IEP also noted that the student‟s difficulties in school may be attributed to emotional rigidity, expressive language weakness and social cognition issues, that may become anxious and overwhelmed when challenged socially and that has feelings of despair and low self esteem. (Ex. Q-4) current teacher described him similarly. (T. 197; see also Exs, B,C, D, E)

The ‟ proposed program is a unilaterally selected placement in a 10 month program at and (one hour each of , , and ) during the summer and afterschool during the 10 month school year. The parent‟s claim that the student had been receiving this program prior to the commencement of the 2010-2011 school year and had made progress was credible and uncontested was her claim that this was the understanding of the CSE when she requested the additional . (T. 79, 80-81, 84, 86, 87 109-110, Exs. B, D, G, M) For the 2010-2011 school year, however, although afterschool have been provided by the , they could not afford the balance of the afterschool and they have not been provided since July 1, 2010.

The credible evidence shows the following with regard to :

serves children needing a small structured multisensory approach to learning who have challenges in the areas of language, attention, sensory and social skill needs and who are average or better cognitively. (T. 133) It has some 118 students in kindergarten through 5th grade. (T. 133) It follows the NY State curriculum. (Ex. BB)

h There are two grade classes and the students are grouped with an emphasis on good functional and social fit. (T. 134) The class in which this student was placed provides the models the student needs in view of social and anxiety. (T. 138) All teachers have at least a masters degree in special education and at least almost all are state certified. All assistant teachers have a least a bachelors degree plus experience. (T. 134)

For the 2010-2011 school year, the student is in a grade class of with a special education teacher and a teaching assistant. The other students currently range from 9.6 to 10 years old and have a mixture of disabilities including language developmental delays, anxiety or other social or emotional needs, social skills and pragmatic language needs and similar . (T. 196, 198) The student is the youngest in the class and at the middle to higher end of the range academically. (T. 198-199)

The student‟s specific needs in the classroom, academic and social-emotional, are addressed by, among other things, close proximity to the teacher, teacher facilitation of peer interactions including lunch, multisensory devices and teaching techniques, movement breaks, a structured school day, the use of a SMART board and graphic organizers, the use of manipulatives, extra time, visual tools, positive reinforcement, repetition, assistance with peers and social activities and a method by which the student may communicate distress to the teacher privately. (T. 199-200, 203, 213, 215, 222, 227, 230-231, Exs. A, I) The school curriculum and schedule has been modified to meet the needs of the student‟s class (T. 223) Team meetings with teacher and providers are held at least once a week to share strategies that worked with this student and to incorporate those strategies into teaching and there are, in addition, frequent phone or e-mail contact concerning these issues. (T. 227) Standardized assessments and testing are conducted. (Ex. BB-6) - conferences, workshops and parent group meetings are conducted and may communicate with teachers via e-mail, communication book and phone. (Ex. BB-6)

The student receives at once a week in a in a of . (T. 216, 218) The student also participates in an “ ” class times a week for , taught by the and described by the “basically in the classroom” which includes a on -.

(T. 213, 214, 221, Exs. E, F) recommended by the are implemented in the classroom and there is also a weekly class taught by the . (T. 211) education is provided, with the class, a . (T. 212)

The student receives once a for in a of . (T. 218) The teacher also works in the classroom on various areas addressed by the . (T. 218)

One 30 minute individual session weekly is provided and in addition the student participates in a class taught by the school counselor and techniques provided by the counselor for this student are carried over into the classroom. (T. 213-214, 218)

With regard to skills and , the teacher testified that the student is aware of and able to pace and any of endurance and do not in the classroom .

(T. 241-242)

The CSE reported progress in the 2009-2010 school year. (Ex. Q; see also Exs. B, D, G, K) In the 2010-2011 school year, student has progressed in both class and individual goals. (T. 201, 203-204, 205, 229-230, Ex. A) The student has also progressed in , and areas. IEP goals, including many goals, are being met.

(T. 209-210, 210-212, 234-241, Ex. A)

I conclude that the evidence in this matter does not support the DOE‟s claim that the parent has failed to show that the program was specifically designed to meet the student‟s needs. The student was in a class with students with similar and of a similar age, goals were appropriate for him and the strategies utilized were identical to and/or consistent with those specified in the IEP and were individualized for this student and were provided. (T. 98, 116, 213, 213-214, 215, 216, 222, Exs. A,

Q) That the student was in a class with similar problems with issues addressed in similar ways does not rebut the claim that this student is in an a program appropriate for unique needs.

That does not provide any is not a basis for concluding that was not appropriate. A school need not provide every recommended related service. On balance, I conclude that provided a program that was highly attuned to the student‟s needs and reasonably calculated to enable the student to receive educational benefits. See e.g. Application of the Board of Education of the Minisink Valley Central School District, Appeal No. 09-040; Application of the Bd. of Educ., Appeal No. 08-084; Application of a Child with a Disability, Appeal No. 02-093. Similarly, the fact that does not provide precisely outlined by the CSE is not dispositive. In the instant matter, provides weekly and twice weekly classes taught by related service providers well thoroughly integrating related service provider strategies and techniques in the classroom and getting feedback at frequent meetings. A parent‟s unilaterally selected program need not meet the IDEA definition of a FAPE and the parent need not show that the placement provides every special service necessary to maximize the student‟s potential. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356, 364-365 (2nd Cir. 2006). “[T] test for the ‟ private placement is that it is appropriate, and not that it is perfect (citation omitted).Gagliardo, 489 F 3rd at 115. I conclude that this placement “reasonably serves the [student‟s] needs.” Id. at 112

In the instant matter, the seek additional and the outside related service providers each recommended continuation in the 2011-2012 school year of the they have been providing. (Exs. B, D, G, M) The assert that provision of necessary during the school day would require that the student be removed excessively from the classroom which would limit progress and perhaps cause regression. (T. 66) The student‟s documented insecurity, perfectionism, anxiety, and needs during the school day I conclude, provide support for that claim. (Exs. A, D) The parent‟s claims with regard to this have not been rebutted by the DOE. I conclude that in the foregoing circumstances, the parent has established the need for afterschool in addition to the program. A need for after school supplementing a private school placement does not require a conclusion that the placement was not appropriate.

With regard to the claim that the student required in July and August 2010 to , I note that the CSE had recommended a but specifically stated that the student “is exhibiting social/emotional concerns that warrant additional support in the summer to prevent a regression of skills” and that its 10 month program would be insufficiently supportive without the summer support. (Ex. Q) Although the IEP does not specify the number and configuration of the summer the CSE was recommending, the parent credibly testified that what had been discussed at the IEP meeting and what she understood the CSE to be recommending was the provision of one hour each of , , and , the had received school during the 2009-2010 school year. That claim was not rebutted by the DOE. In this connection, I also note that each of the had urged . (Exs. B, D, G, M) I therefore conclude that the CSE contemplated the provision of the above-stated hours. The DOE‟s subsequent claim that there had been a CSE “mistake,” about which the parent credibly testified, does not support refusal to provide the authorizations. (T. 120) IEP “mistakes” must be corrected by the CSE not by unilateral DOE staff action rejecting IEP recommendations.

The have also requested for July and August 2011. However, no evidence supporting the student‟s need for in that period has been provided. Further, although the IEP was to be in effect through August 2011, no were recommended.

Based upon the foregoing, I conclude that the program proposed by the for the period July 1, 2010 through June 30, 2011, which includes the July-August 2010 and after school and a at was reasonably calculated to provide educational benefits.

The parent credibly testified that during the period July 1, 2010, summer and after school were provided because the counselor strongly believed that student was at serious risk without that but that the could not afford to pay the counselor. (T.48, 68-69, Ex. D) The are entitled to reimbursement and/or direct DOE payment for those .

The have not requested provision of all the hours to which I have concluded the student were entitled since July 1, 2010 but rather limit their request to one hour each of , , and from the date of this order through August 2011. Although based on entitlement for July-August 2011 have been denied, the student is entitled to make up missed hours with one hour each week of , , and from the date of this order through August 31, 2011, to make up for missed sessions. I note that a substantial number of hours have been provided by the parent and make up hours may not exceed the actual hours the student missed from July 1, 2010 through the date of this order. .

The DOE asserts that the equities do not favor the in this matter because the enrollment agreement was signed prior to a visit to the proposed school and the did not intend to send the student to any public school. However, the parent testified that she although she did not believe that any grade placement was appropriate, she did consider the program offered but not defended by the DOE. She further testified that it was necessary to sign the contract to ensure a space. (T. 48, 50-51) I find her testimony credible. A parent‟s preference for a private school is not dispositive of a claim for tuition reimbursement. The equities do not prohibit a parent from entering into a contract with a preferred private school even prior to the date of the relevant CSE meeting. Application of a Child with a Disability, Appeal No. 05-087. Here, the DOE failed to recommend a placement until mid-July which precluded a school visit prior to taking action to ensure the space. In the instant matter, the evidence shows that the parent cooperated with CSE and I find no basis for a denial or reduction on that ground.

D. Direct Tuition Payment

The tuition for the 2010-2011 school year is and the has . (T. 139140, Exs. V,Y) The DOE asserts that the are not entitled to the full tuition relief sought because they have only and are not liable for the even if the DOE is not required to pay. The DOE argues that in these circumstances although the prevailed with regard to Prongs 1, 2 an 3, DOE tuition payment must be limited to $

The executed a re-enrollment contract accepting for certain charges but which schedules for the upon by the DOE. Moreover, the parent did not assert any obligation to pay if there was no DOE payment but rather stated that she could not pay it.

(T. 96, Ex. V) Further, I conclude that the testimonial and documentary evidence establishes that did not and does not intend to seek payment from the if they do not prevail. (Exs. V, 11) Both parties understood, however, that the consequences would be that the student would not remain at the school. However, I do not find that a bar to the relief sought in the circumstances of this case. The have established their inability to pay the tuition. (Ex. DD, EE) There is no persuasive evidence of bad faith or collusion. In this connection, I note that the parent‟s testimony that she was not aware of the (“the transaction”) credible. (T. 93-95) The inaccurate affidavits by staff do not, I conclude, demonstrate bad faith here where there is no indication that the were seeking to benefit from them. (Exs. 15, 16) Further, there is no claim that the tuition is unreasonable. See, D.A. v. New York City Dep’t of Educ., No. 09 Civ. 5097, 2011 U.S. Lexis 9475 who satisfy the Burlington factors have a right to direct retroactive payment when they cannot afford to pay the tuition and the school has agreed to “front” the costs. D.A. v. New York City Dep’t of Educ., No. 09 Civ. 5097, 2011 U.S. Lexis 9475 The reasoning for supporting payment to who assert they cannot pay but claim they will is no less compelling for those who cannot pay and acknowledge, the parent here has, that they cannot imagine how they could. (T. 96) S.W. v. New York City Department of Education, 626 F. Supp. 2d 346 (S.D.N.Y. 2009), cited by the DOE, supports the parent. The court denied standing based upon financial indebtedness where the parent had no actual or threatened injury. In the instant matter the ‟ child will not be permitted to continue at a school at which has progressed. Further, the court concluded that even when there was no and the lack of indebtedness to the school was unambiguous, the parent nevertheless had standing based on the DOE‟s failure to provide her child with a FAPE.

The DOE also asserts that , (“the ”), which provided in connection with the student‟s tuition, was providing a scholarship or grant rather than a loan to . (Exs. 13, 14, 15,16, W, X) The parent, who is not a party to the agreement, credibly testified that she had no knowledge of the transaction.

(T. 93-95, Ex. W) Pursuant to the unambiguous loan agreement, has no obligation to return the money if the DOE does not pay in full for the tuition. (Ex. W) The assert that this is merely an accounting transaction between related entities to provide operating costs to the school pending the decision. I conclude that the money will be a gift to in the event that the school suffers a loss due to its decision to admit a student whose cannot pay. However, I do not find that a basis for reducing the amount the parent is entitled to have paid to .

Order

1. The DOE shall to the School and to the parent for for the 2010-2011 school year.

2. The DOE shall issue for , and to provide one hour weekly (aggregated) of each from the date of issuance of this order through August 31, 2011.

3. The DOE shall directly pay for provided to the student by qualified providers aggregating to no more than one hour per week from July 1, 2010 to the date of issuance of this order upon the submission of documentary evidence of service, the providers‟ credentials and evidence of their customary rates.

4. The student is entitled to one hour weekly from July 1, 2010 to June 30, 2011 and the DOE shall issue authorizations, upon submission of the credentials of the above for such have not been paid pursuant to Paragraph 3 above. The authorizations may be utilized through August 31, 2011. Dated: May 24, 2011

______________________________

ESQ.

Impartial Hearing Officer

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.

DOCUMENTS

B. Mos of, 4/20/10 1 pg. C School, October 2010, 1 pg. D. Rpt, 4/22/10, 2 pgs. E, Oct 2010, 1 pg. F School, Oct. 2010, 1 pg. G, of, 4/21/10, 1 pg. H School, 4/16/10, 1 pg. I., 10/1/09, 7 pgs. Parent J School., Oct. 2010, 2 pgs. Parent K School,, April 2010, 1 pg. L.,. 10/1/09, 5 pgs. M,, 4//21/10. 1 pg. N, 9/30/09, 3 pgs. O Goals 2010-2011, 1 pg. P Goals 2010-2010, 1 pg. Q 2010-2011 IEP 4/26/10, 16 pgs. R. Letter, 7/16/10, 1 pg. S Parent Letter to 8/24/2010, 1pg. T Parent Letter to 8/24/10, 1 pg. U Amended Hearing Request, 11/29/10, 3 pgs. V School Enrollment Contract 2010-2011, 2 pgs. W Loan Agree, 6/23/10, 1 pg. X Letter of Loan Verification, 1 pg. Y School, Tuition Payments, 1//4/11, 4 pgs. Z School Sept 2010-June 2011 Attendance Rpt. AA Certif. of Incorporation of Assoc., 9 pgs. BB School Brochure, 12 pgs. CC School Elementary Curriculum, 2 pgs. DD Parent, Tax 1040, 2008, 2 pgs. EE Parent, Tax 1040, 2009, 2 pgs. FF Map of School and Student‟s Home, 1 pg. 1 Omitted 2 CSE Minutes, 4/26/10,1 pg. Department of Education 3 Impartial Hearing Request, 9/24/10, 2 pgs. Department of Education 4 Due Process response, 10/7/10, 3 pgs. Department of Education 5 Omitted 6 NYSD Entity Info. re School, 2/16/11, 2 pgs. Department of Education 7 DOE Subpoena 1, 11/22/10 Department of Education 8 DOE Subpoena 2, 2/10/11, 2 pgs. Department of Education 9 Email corres, ( ) re subpoena for Department of Education Assoc., 3/17, 22. 23/11, 3 pgs. 10 re-re-enrollment contract for student, 2010- Department of Education 2011, 8/16/10, 2 pgs. 11 School re-enrollment contract 2010-2011 Department of Education sample, 2 18/10, 2 pgs. 12 Omitted 13 Check from -$ Department of Education 7/1/10, 1 pg. 14 Check from -$ Department of Education 1/13/11, 1 pg. 15 Affidavit of, School, 12/2/10, 1 pg. Department of Education 16 Affidavit of, School, 1/4/11. 1 pg. Department of Education 17 School Policy re Scheduling and Attend, Department of Education undated 1 pg. 18 School Classroom visits and prov. Of therapy Department of Education and educ, undated, 1 pg. 19 School policy re parent partic re PA, class Department of Education and the Assoc. undated, 1 pg. 20 School:Sch.polocies-document for Department of Education CSE?Impartial Hearing, undated, 1 pg. 21 School 2011-2011 class sch, 10/15/10, 1 pg. Department of Educatrion 22 School lass profile, undated, 1 pg. Department of Education 23 Omitted 24 Omitted 25 Omitted 26 Omitted 27 Omitted 28 gr. Curric level Global Goals, 2010/2011, 1 pg. Department of Education I ‟ Post Closing Memorandum Impartial Hearing Officer II DOE Post Closing Memorandum Impartial Hearing Officer (12 pages; Parents)