New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 22

Hearing Requested By: Parent

Date of Hearing: July 11, 2011

Hearing Officer: Leah BotwinikAlmeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Attorney — Student

Parents

Social Worker (Via Telephone) — Student

NONE

JURISDICTIONAL STATEMENT

On April 28, 2011 I was appointed to hear the Matter of . pursuant to the IDEIA, 20 US Code Section 1415 (f)(l). On July 6, 2011 this matter was adjourned and on July 11, 2011 hearing on the substantive merits was held. At this time, there was no appearance on behalf of the Department of Education, notwithstanding previous discussion with its representatives advising a default would be taken. Tr. at 4-6.

Thereafter, the proceedings were closed and no further testimony taken. Post-hearing submissions were invited and the timeline was duly extended. It is noted that this is a Parental request seeking tuition reimbursement subject to a unilateral transfer to the Academy (hereinafter “ ”) for the 2010-2011 school year.

In furtherance thereof, the Parent maintains that , an out-of-state residential non-public school placement,1 is both suitable and appropriate for her child. Exh. B. As a corollary, the Parent contends that there are no equitable factors which militate against her right to relief (Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

No one appeared on behalf of the Department of Education.

THE PARENT’S CASE

is a licensed clinical social worker currently employed by .

She has worked at for ten years and provides group, family and individual therapy for a caseload of ten students. The witness described as a small, therapeutic boarding school for children with and problems.

Notwithstanding its focus upon health, the school additionally provides an academic program for those enrolled. Tr. at 19-22.

Ms. testified that she has served as .’s primary clinical therapist for 14 months. In this capacity, she and the student have worked on the development of appropriate skills and interpersonal dynamics. She noted that . had been and at his prior public school due to his and, as a result, is located in the state of Utah. initially presented with significant , and poor . Tr. at 24. She noted that the treatment of .’s issues has involved an on-going therapeutic process in which the student has gradually developed increasing insight into his own actions and perceptions. . receives individual and family therapy at least twice per week and additionally participates in group therapy. Residential and academic services are provided within a therapeutic structure and the student additionally participates in a support group for homosexual teens. Tr. at 21-22.

Upon admission, the witness testified that a treatment plan addressing the student’s issues was developed. Although the student originally refused to enter a relationship with Ms. , . eventually realized that he wanted to feel better and would need to engage professionally with the witness in order to achieve this end. Tr. at 25. Since then, Ms. testified that . has learned to cognitively restructure his negative thoughts and distinguish between reality and destructive thoughts. He has additionally learned that much of the negative judgment he had perceived by others was really his own negative self-judgments. Through individual and group therapy . has developed emergent skills which have replaced the negative and “mind racing” previously exhibited.

The witness additionally observed that the student had progressed academically, noting no longer wandered from the classroom when he felt and . In furtherance thereof, has provided the student with various psychological techniques which support his to remain on task without decompensation. As a result, Ms. testified that the child was able to participate more appropriately within class and benefit from instruction.

Ms. . additionally testified on behalf of her son. The Parent noted that was a year old who has a history of disabilities and processing deficits. Notwithstanding these challenges, was placed in a gifted program during school. Tr. at 30. The student takes several psycho-active including , and which are now monitored by a psychiatrist in Utah.

In March 2010, Ms. . met with the Committee on Special Education (CSE) to discuss her son’s phobias and , both of which were compromising his to function within the classroom. The Parent noted that, although the student would leave for school in the morning, he was frequently truant. would later be found alone at the library watching videos. Beyond this, ’s explosiveness led to altercations and a frightening home environment for her other children. Tr. at 38.

Following the CSE’s discussion about a public program for students, Ms. . herself initiated contact with the suggested school as she believed her son’s dysfunctional status had reached crisis proportions. Although no formal recommendation had been made, the Parent testified that she visited the program suggested by the CSE but was advised by its personnel that was inappropriate for their program given his co-morbidities of depression, and . Tr. at 31-

32. Since this time, the CSE has not re-convened and no formal notice of recommendation issued. There has been no further contact from Department of Education personnel. Tr. at 41.

Concerned about the dramatic levels of ’s deterioration, the Parent met with an educational consultant and was referred to . The Parent testified that has been responsive to ’s small, structured program, a placement she has now visited four times since May 2010 and communicates with personnel via telephone at least twice per week. Tr. at 35. She noted that her son has made significant academic and psychological progress in academic courses such as English, math and science noting that his last progress report referenced all and plus grades. She testified, “ . . . he’s a bright boy, just that he lost himself and he couldn’t do it well and learn . . . and now he’s back . . . he wants to learn . . .” Tr. at 36-37; Exh. D. It is her anticipation that will attend .

THE PARENT'S POSITION

The Parent asserts that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education. In furtherance of this, the Parent maintains that the residential educational program at is both appropriate and necessary to meet ’s educational needs. As a corollary, the Parent contends that equitable considerations support her entitlement to an award of reimbursement.

DISCUSSION

It is well settled that courts may order reimbursement for parents who unilaterally withdraw their children from public schools that provide an inappropriate education under the IDEA and enroll them in private schools of their choice. In furtherance thereof, the Parent has relied upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent.

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "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 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational 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; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

Finally, the courts have held that the Individuals with Disabilities Education Improvement Act does not preclude an award of tuition reimbursement where special education and related services have not been previously provided to a student by a public school or public agency (Frank G., 459 F.3d at 376; see also Carmel Cent. Sch. Dist. v. V.P., 2006 WL 2335140, at *1 [2d Cir. Aug. 9, 2006]; Application of a Child with a Dis , Appeal No. 06-077; Application of a Child with a Dis , Appeal No. 06-041; Application of a Child with a Dis , Appeal No. 06-032; Application of a Child with a Dis , Appeal No. 06-021).

I find that the child made significant and meaningful psychological and educational improvement at , and, in this regard, I concur with the opinion expressed by Darlene and the Parent. Clearly, their instructional and therapeutic techniques reflect a structured, consistent and individualized approach to which has been responsive. The record further indicates that participates in a classroom with other children whose educational profile is similar to his. He is routinely assessed, and his program modified depending upon the skills and strengths developed. Finally, the credible testimony supports the conclusion that there is frequent collaboration with the Parent who has expressed delight with the and academic progress her son has made. In the absence of any testimony or evidence to the contrary, it is clear that is appropriately serving ’s educational needs.

Finally, I find that there are no equitable factors which militate against an award of reimbursement. The Parent’s testimony regarding her communication and cooperation with the CSE is uncontroverted. She has worked collaboratively with the CSE at meetings and demonstrated initiative in following up on CSE recommendations. Given the lack of either testimony or evidence on behalf of the Department of Education, there is no reason to believe Ms. . has not met her equitable obligations.

In the instant matter, the Department of Education has failed to provide the child with both a current Individualized Education Program (IEP) and placement. Moreover, notwithstanding an adverse Findings of Fact for the previous school year, there has been no appeal and this placement remains the child’s pendency. Exh. F. The Department of Education’s desultory involvement in this matter is further memorialized by its failure to appear at this hearing despite notice. Under these circumstances, the Department of Education has clearly failed to establish the appropriateness of their placement at best or the existence of a placement at worst. In the absence of any testimony or evidence in opposition, I find that the Parent has established her right to reimbursement.

CONCLUSION

The parent’s request for relief is granted.

Wherefore, it is hereby so ordered that:

Upon due presentment of cancelled checks and/or an affidavit from the Academy memorializing both the tuition already received by them as well as the outstanding tuition payable for the 2010-2011 school year, the Department of Education shall reimburse the parents in full.

Reimbursement shall be issued within thirty (30) days of presentment

The Parent shall be deemed the prevailing party. Dated: August 2, 2011

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer LBA:gc

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 DESCRIPTION

A 10-Day Notice, 6/15/10, 3 pages B Hearing Request, 4/26/11, 10 pages C Contract, 5/16/10, 4 pages D Schedule, undated, 1 page E Information re , 8/6/10, 4 pages F Findings of Fact, 2/11/11, 19 pages