New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 31

Hearing Requested By: Parent

Date of Hearing: September 9, 2011

Actual Record Closed Date: September 11, 2011

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2011

Parent of Student — Parents

Esq. Attorney for Parent — Parents

Therapist – Social Worker with Board of Family and Children Services – Provided Therapy to Student During 2010 2011 — Parents

Ph.D. Director of Clinical Services at The Center (by phone) — Parents

District and New York City Department of Education Designee — DOE

The Matter of . (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on September 9, 2011. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter by notification dated July14, 2011. The Actual Record Close Date was September 11, 2011.

The proceeding was initiated by Parent by the filing by Parent’s attorney of a Due Process Complaint Notice, dated July 13, 2011 and received by the New York City Department of Education’s Impartial Hearing Office on July 14, 2011(Exhibit A). Parent challenges the appropriateness of the Individualized Education Program (I.E.P.) created by District’s Committee on Education (C.S.E.) on March 2, 2011 for the Student’s education program for the 2011-2012 school year and asserts that District’s failure to prepare an appropriate I.E.P. deprived Student of a free, appropriate public education (FAPE). Parent seeks the issuance of an Order permitting Parent to place Student at The Center for the 2011-2012 school year and requiring the District or the New York City Department of Education to make the direct payment of all costs incurred in such unilateral placement to The Center.

Student is presently sixteen years six months of age, having been born on March 27, 1995. Student is presently classified as having an Disturbance. According to the testimony of Parent, Student has been receiving education services during his entire educational experience because of severe concerns that first evidenced themselves in the early programs (There are no references to the Transcript as this decision is being written without awaiting its receipt). Student began his School program at The School, a private education facility located in Manhattan. Student thereafter was placed by the Department of Education in a District #75 program at , in Student’s home borough of Staten Island. Student’s educational performance during the 2010-2011 school year was woeful. Student received numerous disciplinary referrals for improper conduct while in school (Exhibit G), including incidents of and threats of . Student also had excessive absences from school. Student failed every course for the school year while in such program (Exhibit F).

According to the Testimony of Witness , Student and Parent have been receiving therapy through the Board of and Servicers for over two years – since Parent and Student moved back to Staten Island. Witness has been the therapist for Student and Parent for approximately one year. Witness testified that she and her supervisors have determined that Student’s needs are too severe to be adequately met by the agency’s services and have notified Parent that Student’s needs cannot be met in either his current educational placement or in the weekly sessions it can provide. Parent testified that Student has been hospitalized four times during the 20102011 school year due to his psychiatric deficiencies and aggressive s. One of such confinements was at the Richmond University Medical Center for the period of March 30, 2010 through April 14, 2010 (Exhibit E). According to his treating physician , Student has been diagnosed with Disorder, Disorder and ’s Disorder (Exhibit E). According to Witness and Parent, Student has also been identified as having Oppositional Defiant Disorder and possibly Disorder.

District’s C.S.E. met on March 2, 2011 to recommend Student’s educational program for the 2011-2012 school year. The Individualized Education Program prepared by the Committee classified Student as having an Disturbance and recommended that Student receive his education program in a Class in a School (District 75), with the Related Services of , once weekly, thirty minutes per session, individually, as well as once weekly thirty minutes per session, in a group of eight; / Therapy, twice weekly, thirty minutes per session, in a group of three, as well as once weekly, thirty minutes per session, individually; and the assignment of a Management Paraprofessional (Exhibit C). Parent testified that she and her advocate at the meeting strongly lobbied for a residential placement for Student, but their pleas were rejected by the District Representative-School Psychologist. Parent contends that the recommended program is insufficient to meet Student’s extreme needs, noting that the District’s recommendation will simply place Student in the same program into which Student was placed during the 2010-2011 school year and encounter the same failures. Parent seeks Student’s placement at The Center, a full time therapeutic residential educational facility located in , , a facility approved by the New York State Department of Education (Exhibit K)

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free, appropriate public education (FAPE) that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 decisionmaking 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]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

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]; see Rowley, 458 U.S. at 189). 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, 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 (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see 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. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).17 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 P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for the student by his or her parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). 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]; Cerra, 427 F.3d at 192), noting that such simply requires the educational entity 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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

In 1998, the District Court for the Northern District of New York rendered a decision in a matter entitled Connors v. Mills, 34 F.2d 795 [N.D.N.Y. – 1998], wherein the Court noted, albeit in dicta, the possibility of finding equitable justification for ordering prospective payment of tuition by the District to a parent’s unilaterally-selected facility when, except for such intervention, a disabled student could not gain entry into such unilaterally-selected placement. In that Decision, the Court noted that:

“Once the Burlington Prerequisites relative to the non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.”

Connors at p. 805-805 The Decision 0f the Court in Connors (ibid) was favorably reviewed by the Second Circuit Court of Appeals in Mr. and Mrs. A, obo D.A. v. New York City Department of Education, United States District Court - S.D.N.Y. (Feb. 2011 (2011 WL 321137)

Burden of Proof

In applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented in this proceeding, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did formerly rested upon the District (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child With a Disability, Appeal No. 01-028). However, as a result of the recent decision of the Supreme Court of the United States in Schaffer v. Weast, 126 S. Ct 528 [2005] and its subsequent interpretation by the Federal District Court for the Southern District of New York (Anthony and Adele Gagliardo v. Arlington C.S.D., 2006 WL 561233 [3-3-2006]), such burden now rests upon Parent. I will review and consider whether Parent has successfully borne such burden. Should I determine that Parent has failed to establish that District did not offer Student an appropriate educational program, my inquiry into Parent’s request for reimbursement will cease at that point, for if a district has offered an appropriate program, Parent’s right to reimbursement must be denied. If it is determined that Parent has successfully established the inappropriateness of District’s program, I must then determine the appropriateness of the Parent’s unilaterally-selected educational facility. Again, the burden of establishing such appropriateness rests upon Parent. Should Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for reimbursement must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must then review the equities in order to determine whether equitable considerations favor an award of tuition reimbursement. Again, the burden of establishing that such equities favor an award of tuition reimbursement rests upon Parent.

With such guidelines as are set forth above, I would now normally proceed to a review of the issues as they pertain to the Burlington Prerequisites and review the appropriateness of the program offered to Student and whether District offered Student a free, appropriate public education. However, at the commencement of this proceeding, District’s Representative stated that the Department of Education conceded Prong One – i.e., that the Department of Education admitted that it had failed to provide Student with a free appropriate public education. Thus, it removed from this proceeding any necessary review of the appropriateness of the I.E.P. created by District’s C.S.E. on March 2, 2011or of the placement it offered to Student.

Thus, the review moves to the consideration of the appropriateness of The Center and whether such educational institution is capable of meeting Student’s needs. Initially, I note that Parent is free to select any educational institution she desires to unilaterally place Student – that her choice is no less restricted than a parent who unilaterally selects and places a student and thereafter seeks reimbursement. Indeed, unlike Connors, the parent in this proceeding seeks approval of her request for placement in a New York State-approved educational facility (Exhibit K).

The educational needs of Student are more than adequately documented in the record before me. Student has been classified as having an Disability. Student has been cited on numerous occasions while attending school for and threats to staff and peers, on occasion resulting in his and involvement in the Justice system. outbursts and inappropriate . Student has been hospitalized on four occasions and placed in its psychiatric wards. The therapist with whom both Parent and Student has worked for approximately one year shared her opinion that Student was in need of a therapeutic program. Her statement noted that Student was in need of a twentyfour hour intensive treatment (Exhibit I). The Physician who treated Student at the Richmond University Medical Center in April of this year submitted his opinion that Student would benefit from a residential structured setting (Exhibit E). The Home Instruction teacher who provided services to Student during the Summer months of 2011, who, according to Parent, was able to establish a positive rapport with Student, was moved to write that, in his opinion, Student was in need of a intensive state residential support program (Exhibit H). The Testimony offered by Witness , the Director of Clinical Services at The Center (hereafter “ ”) explained that such institution specifically dealt with a student population with needs similar to Student, that it incorporated an elaborate system to permit the student to gain control and insight into his conduct, while providing all necessary supports and services to advance development of and . The school, according to Dr , offers a full educational program, staffed by certified education teachers, that runs from nine a.m.to three p.m. The program also offers facilities for sports and other studentrelated activities. However, the program also provides sufficient staff and electronic controls to monitor student activity, with trained staff to intercede or redirect inappropriate s. The program, described by Dr. , was elaborated in the publications from that described the institutions’ Education Procedures (Exhibit L); its Distinguishing Features (Exhibit M) and its Positive Programming Procedures (Exhibit N)., It is my finding that The Center is more than appropriate to meet Student’s , and academic needs..I therefore find that Parent has more than met her burden of establishing the appropriateness of the unilateral placement for which Parent seeks prospective tuition form the department of Education.

Parent was required to establish that Equitable Considerations favored the granting of the relief sought by Parent. This, I find. Parent also did. Parent has utilized the public school system in seeking assistance for her son over a number of years. Parent endured the 2010-2011 school year, in which, despite continuation of her son in the program recommended by the District and its Committee on Education, saw Student’s needs go unmet. Student failed every course in which he was entered. His conduct continued to deteriorate. Hospitalizations became necessary. Student was in connection with an while at school and is now moving through the City’s system. Parent attended District’s C.S.E. meeting, where she and her advocate strongly sought the relief she seeks in this proceeding, i.e., a therapeutic residential placement, but was rebuffed by the Committee’s District Representative.- only to be told in this proceeding that the Department admits that it failed to offer Student an appropriate education. Parent cooperated .with the Committee. There is nothing in the record before me that in any way impugns the Parent’s actions and good faith.

Parent has also established that her income and assets are insufficient to undertake the costs associated with Student’s attendance at The Center. Parent’s income, as set out in Parent’s Federal Tax Return for 2010 (Exhibit P), amounted to $31,433. In addition, Parent testified that she receives approximately $12,000.00 per year in Child Support payments. Parent also testified that she has mortgage and other obligations to meet monthly.

It is, therefore, my determination that the Department of Education failed to offer Student a free, appropriate, public education; that Parent has successfully established that The Center is an appropriate educational facility for Student, and that Equitable Considerations favor the granting of relief in this proceeding. I further find that, without an Order of prospective payment of tuition and other related costs to The center, Student would not be accepted at such facility.

ORDER

Based upon the above, it is

HEREBY ORDERED that Student be placed immediately at The Center and remain in such placement for the duration of the 2011-2012 school year; and it is

FURTHER ORDERED that the District and the New York City Department of Education prospectively pay to The Center all costs associated with Student’s attendance at The Center for the 2011-2012 school year; and it is

FURTHER ORDERED that the District and the New York City Department of Education shall be responsible for all costs incurred pursuant to the provisions of 8 NYCRR 200.12. Dated: September 12, 2011

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW: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 RECORD ON SEPTEMBER 9, 2011

B. Due Process Response to Complaint by Parent Department of Education (3 pages; Parents)

C. Student’s I.E.P. as Prepared by District’s Parent C.S.E. on 3-2-11 (19 pages; Parents)

D. Letter To Whom It May Concern from Parent M., M.D. of Richmond Associates, dated 2-8-11 (1 page; Parents)

E. Letter To Whom It May Concern from Parent, M.D. of Richmond University Medical Center, dated 4-14-11 (1 page; Parents)

F. Student’s Report Card for 2010-2011 Parent ` school year (1 page; Parents)

G. Occurrence Reports – Various Dates Parent (24 pages; Parents)

H. Letter To Whom It May Concern from Parent, dated 8-13-11 (1 page; Parents)

I. Letter To Whom It May Concern by Parent D. of Board of Family and Children Services, dated 8-16-11 (1 page; Parents)

J. Letter to Parent from, Parent Center, dated 4-21-11 (1 page; Parents)

K. Letter from P. LaPan of N.Y.S. Education Parent Department to Dr. of Center, dated 9-14-11 (1 page; Parents)

L. Publication by The Center Parent Entitled: Educational Procedures (7 pages; Parents)

M. Publication by The Center Parent Entitled: Distinguishing Features of The Center (11 pages; Parents)

N. Publication by The Center Parent Entitled: Positive Programming Procedures At The Center (16 pages; Parents)

O. Publication by The Center Parent Entitled: Educational Progress of Disturbed Students at The Center (9 pages; Parents)

P. Parent’s Federal Tax return for 2010 Parent (2 pages; Parents)