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: Parent Date of Hearing: November 9, 2011 Actual Record Close Date: November 24, 2011 Hearing Officer: Barbara J. Ebenstein, Esq.

CORRECTED

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

Attorney — Student

Translator — Student

Parent/Mother — Student

Aunt — Student

Division Head, — Student

and Development (via telephone) — Student

Teacher, — Student

(via telephone) — Student

CSE Chairperson Representative — DOE

— DOE

This is New York City case #134388. On November 9, 2011, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , CSE Chairperson‟s representative represented the New York City Department of Education (hereinafter referred to as the Department of Education) and , Esq., of the New York Legal Assistance Group, represented the Mother. Mr. . served as a translator for the Mother. ., the Mother‟s sister, was there to support her for part of the hearing. A list of witnesses who testified and documents received into evidence is attached to this final decision.

ISSUE:

The sole issue before me is whether the Mother is entitled to retroactive direct payment for the Mother‟s unilateral placement of . at the (hereinafter referred to as the “ ”) for the 2010 – 2011 school year.

PARENT‟S POSITION

The Parent believes that the Department of Education failed to offer a “free and appropriate public education” (FAPE) to . for 2010 – 2011. She believes that the provides with an appropriate education, and that equity favors her request for retroactive direct payment.

DEPARTMENT OF EDUCATION‟S POSITION

The Department of Education concedes that it has failed to offer a FAPE for . for the 2010 – 2011 school year. (Tr. 7, 128) The Department of Education did not express a position on the second or third criteria, but reserved its position until after the parents put on their case. (Tr. 8) Although the Department of Education agreed to submit a written closing statement, it chose not to do so and notified me of that decision. The Department of Education never expressed a clear position on the second and third criteria.

STATEMENT OF FACTS

. is now a year old student who has , although there is conflicting information as to when she last had a . An unexplained handwritten note on the challenged “individualized education program” (IEP) indicates that she last had a in 2000. (Ex. J at

5) The Mother suggested that was having as late as 2008. (Tr. 124) The Department of Education “Committee on Special Education” (CSE) classified her disability as ” ” (LD). (Ex. J; Tr. 123-4)

, Psy.D. at conducted an August 2008 evaluation using a for ). She found that had a verbal comprehension of , perceptual reasoning of , working memory in the borderline range of , and processing speed was in the average range at . Her full scale IQ was . (Ex. G at 5) In comparing these scores to the scores achieved on verbal subtests in a prior assessment, Dr. n found that some of her scores had dropped as she got older.

“(T)he most noticeable difficulty this time around was that of her general fund of information . . . Given ‟ language difficulties, it has been difficult for her to keep up with the higher expectations expected in older children. In addition, is spoken in the home, allowing for little reinforcement of the gains made in school.” (Ex. G at 2)

Dr. also identified feelings of that should be monitored for the need of . (Ex. G at 5) There is no evidence in this impartial hearing to establish whether was monitored, or whether she needs, or is participating in, psychotherapy.

Dr. also suggested that attend the . (Id.) Following Dr. ‟s evaluation, the Mother placed . at the in September 2008 and the child remained there for the 2008 – 2009, and 2009 – 2010 school years. (Tr. 125) The Mother signed a contract with the for the 2008 – 2009 school year, but she never paid any tuition for the 2008 – 2009 school year. (Tr. 147-8) She also signed a contract for the 2009 – 2010 school year, and she never paid any tuition for the 2009 – 2010 school year either. (Tr. 148-151) There was no evidence in this impartial hearing to establish what grade level curriculum and State standards were followed during these two school years.

The is an unapproved private school for children with learning disabilities, mild to moderate , , and . (Tr. 24) It provides small group instruction to meet the individual needs of its students, technology in the classroom, and collaboration between the teachers and the related service providers. (Tr. 25, 89-90) The is housed in a general education partner school, the . (Ex. N at 4) Although the children share the same lunchroom with their non-disabled peers, they sit at a separate table. (Tr. 115) The provides trimester progress reports. (Ex. B)

The Mother signed a contract with the for the 2010 – 2011 school year on March 12, 2010. (Ex. M) As the Mother had a translator at this impartial hearing and the contract was in English, there were a number of questions about the Mother‟s understanding of the contract she signed for the 2010 – 2011 school year. (Tr. 145-6) But the Mother admitted that she does read English.

“HEARING OFFICER EBENSTEIN: I have a few

quick questions. As we're sitting here

discussing this contract, your attorney sat next to you, showed you a piece of the contract, and marked a passage for you. Can you read English?

MS. (THROUGH INTERPRETER): Yes.”

(Tr. 147)

She did not expect to pay any of the tuition for the 2010 – 2011 school year.

HEARING OFFICER EBENSTEIN: Yes. And

did you expect to pay anything at all for it for the 2010/2011 school year?

MS. (THROUGH INTERPRETER): I

can't so I mean no.

(Tr. 149-151)

The Mother attended a May 24, 2010 CSE meeting to develop an IEP for the 2010 – 2011 school year. (Ex. J) The May 24, 2011 IEP provides with a special class of twelve students with one teacher and the related service of in a separate location three times per week in a group of three. (Ex. J. at 11)

In the summer of 2010, , a , conducted a evaluation of . (Ex. H) Ms. ‟s formal testing revealed that had a single word vocabulary, and visual confrontation naming words. Her responses were highly indicative of a word retrieval problem. (Ex. H at 3) Informal testing used transcription of tape recordings and showed word retrieval problems and syntactic organization difficulties. (Ex. H at 4) This evaluation does not refer to the fact that comes from a family where Spanish is spoken at home. (Tr. 112; Ex. G at 2) It was Ms ‟s understanding that would attend a class at the in the fall of

^[1]

2010. (Ex. H at 1)

The Mother received a “Final Notice of Recommendation” (FNR) from the Department of Education on August 24, 2010. (Tr. 126, Ex. A at 2) The FNR is not in evidence in this impartial hearing. Apparently, it recommended a program at J.H.S. 131 and the Mother visited it on October 1, 2010. (Ex. D; Tr. 126) The Mother, through the , sent a series of three letters to the Department of Education rejecting the proposed placement as the Mother did not believe that it provided sufficient support and because it did not differentiate instruction. (Ex. D, E, F) In these three letters, the Mother notified the Department of Education that she would keep at the .

The Mother did keep at the School for the 2010 – 2011 school year. The program is designed for students aged , although Mr. testified that he believes that his students were between the ages of during the 2010 - 2011 school year. (Ex. N at 1; Tr. 110-1, 44-5) “The curriculum is closely aligned with the New York State Standards for Learning with varying levels of support and modification tailored to the needs of the students.” (Ex. N at 1) The does not “go by grade and we go by their skill level, we choose every year a specific content year to address.” (Tr. 44-5, 113) For the 2010 – 2011 school year, the chose to use the State standards for the class and then differentiated instruction to students‟ individual reading levels or to the mean reading level in the class. (Tr. 113-4) Although the instruction was differentiated, the School followed the content and concepts of the State standards for . (Tr. 69) During the 2010 – 2011, was in . was old when she began the 2010 – 2011 school year and turned eleven years old in October 2010. Mr. was not aware of her age, and he believes that his other students were twelve or older. (Tr. 110-1)

HEARING OFFICER EBENSTEIN: Okay. And

that's exactly what I wanted to know. So, age wise she would have been in the grade. But you said that, and I do need clarification on this, that it--because you're doing mixed grades at Cooke, that the state standards that she was exposed to were grade, is that correct?

MS. : The content.

HEARING OFFICER EBENSTEIN: The content

was instead of ?

MS. : The content was grade.

(Tr. 69)

The class also worked on a modified and differentiated unit on immigration that is based on content from an grade State standard. (Tr. 114)

was in a class of students, teacher, and assistant teachers for reading, writing, and social studies for most of the 2010 – 2011 school year. (Tr. 84-6, 92) Mr. t was ‟s teacher in those three subjects, and he believes that her skills were at an grade level at the beginning of the 2010 – 2011 school year. (Tr. 87, 105) Her comprehension skills were in the early grade level at the beginning of the school year. (Tr. 87, 98) But skills inhibited . (Id.) At the end of the 2010 – 2011 school year, had decoding skills in the late second grade level and she had made progress in comprehension. (Tr. 87; Ex. B at 3)

During the 2009 – 2010 school year, was working on the mid-third grade instructional level in math, and she was unable to independently solve multiplication facts from 0-5. (Ex. L at 7) During the 2010 – 2011 school year, was in a group working on the tasks associated with the fourth grade instructional level in math. (Ex. B at 7)

The Mother filed an impartial hearing complaint to request direct payment to the Cooke Center for the 2010 – 2011 school year on August 12th, 2011. (Ex. A; Tr. 150) Meanwhile, she re-registered at the for the 2011 – 2012 school year, and attends school there now.

HEARING OFFICER EBENSTEIN: Okay. And

my understanding is that the child is enrolled at the right now for the 2011/2012 school year, is that right?

MS. (THROUGH INTERPRETER): Yes.

HEARING OFFICER EBENSTEIN: did the Cook

Center permit you to enroll your child for the 2011/2012 year, even though they have not been paid for the 2010/2011 school year?

MS. (THROUGH INTERPRETER): What

was the last part?

HEARING OFFICER EBENSTEIN: I'm not

sure. Did they permit her to enroll the child for the 2011/2012 school year, although they hadn't been paid anything for the previous year?

MS. (THROUGH INTERPRETER): She

has a lawyer that helps her during the process of the tuition and they allowed her to--to be admitted at 2011/2012, for that year.

(Tr. 149-150)

CONCLUSIONS OF LAW

The Mother seeks retrospective direct payment to the private school pursuant to Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). The U.S. District Court for the Southern District of New York applied the reasoning and criteria of School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) to grant a request for retroactive direct payment when the parents established that they could not afford to pay the tuition. The remedial powers set forth in the IDEA are also applicable to impartial hearing officers in fashioning Burlington/Carter relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494, n.11 (2009)

FIRST CRITERION

The first criterion of a Burlington/Carter analysis is whether the school district offered a FAPE. 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. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd. Of Educe. v Rowley, 458 U.S. 178, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). 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 (citations omitted). 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. 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. §§300.114[a][2][i], 34 C.F.R. §300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 (S.D.N.Y. 2009), and P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The statute ensures an "appropriate" education, although not one that provides everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

In the matter before me, the Department of Education conceded that it failed to offer a FAPE to P. for the 2011 – 2012 school year.

SECOND CRITERION

With respect to the second criterion of a Burlington/Carter analysis, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85. "The standards for determining whether a private school placement is 'appropriate' under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement." A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010).

There are two possible approaches to assessing the appropriateness of a placement. One is a prospective “snapshot” review that focuses on the child‟s levels of performance and individual needs when the placement decision was made, and the other is a retrospective hindsight review that takes into account whether the child made progress in the placement. In adopting the prospective snapshot approach, the U.S. District Court for the Southern District of New York referred to a hindsight retrospective review as “Monday-morning quarter backing guided by . . . knowledge of (the child‟s) subsequent progress . . . “ J.R. v. Board of Educ. of Rye Sch. Dist., 345 F.Supp.2d 386, 395, (S.D.N.Y. 2004) The Court recently reviewed a number of cases to find:

“. . . the Court finds persuasive the line of cases that have „held that inquiry into whether an IEP is valid is a necessarily prospective analysis‟ and notes the Second Circuit's suggestion that „an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” M.H. and S.R on behalf of H.H., v. New York City Department of Education, 56 IDELR 69, 111 LRP 13642 (S.D.N.Y., 2011)

footnote 6

See also Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1041 (3d Cir.1993) (“Actions of the school systems cannot ... be judged exclusively in hindsight. ... [A]n individualized education program ("IEP") is a snapshot, not a retrospective. In striving for „appropriateness,‟ an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.”) The U.S. District Court for the Eastern District of New York applied this prospective snapshot approach to the second criterion of Carter/Burlington analysis for reimbursement: “. . . this Court sees no reason why the parents' choice of a program should not be evaluated under the same standards, looking at the program at the time that the parents selected it and determining whether, at that point, it was a program reasonably calculated to provide the child with an educational benefit.” C.B. and R.B. on behalf of W.B., v. New York City Department of Education, 108 LRP 2761, (E.D.N.Y., 2005)

In the instant matter, the Mother placed . at the School that is a special education school for children who have disabilities similar to hers. was in a small class with a certified special education teacher and two teaching assistants for three subjects. But was substantially younger than her classmates and the class used content from the New York State standards for grade. Furthermore, Dr. found that it had been difficult for to: “keep up with the higher expectations expected in older children” prior to her placement with older classmates at the School. (Ex. G at 2)

There is no evidence in this impartial hearing to establish that was ready for curricular content that is more advanced than her age and grade level. To the contrary, a “snapshot” of her skills at the end of grade reveal a child with in verbal skills and working memory, and academic deficits that suggest that she was not prepared for such a jump in the level of curriculum. I find insufficient evidence to establish that was appropriately placed in a school class with older students and grade content when she was in .

The fact that this impartial hearing was brought a year after entered the suggests a retroactive assessment. Even using such a retroactive hindsight approach, the record does not establish that the was an appropriate placement for for the 2010 – 2011 school year. ‟ greatest area of and greatest area of need is . She began level and ended the year decoding on a late . She made less than a year‟s progress in decoding in a year.

I find that the Mother has not carried the burden to establish that the School was an appropriate placement for . for the 2010 – 2011 school year.

THIRD CRITERION

The third criterion on a Carter/Burlington analysis is whether equitable considerations support the parent's claim. Having found that the parent has not carried the burden on the second criterion, I do not have to consider equity. See Application of a Child with a Disability, Appeal No. 02-092 But I will do so to complete the record in this case.

The Mother attended the May 24, 2010 CSE meeting. She did visit the recommended placement on October 1, 2010 after she received the FNR that she did not receive until late August when schools were closed. These facts support equity favoring the Mother.

The Mother signed the contract before the spring 2010 CSE meeting. I find that the fact that the Mother entered into a contract with the prior to the CSE meeting for the 2010 – 2011 school year is not dispositive of the issue of equity as it is necessary to sign a contract early to reserve a place in a private school. Application of a Child with a Disability, Appeal No. 06-041. Yet the facts and circumstances surrounding the contract are problematic for several reasons.

First, I find that the Mother failed to establish that she lacked the financial resources to pay the Student's tuition costs at the for the 2010 - 2011 school year as she did not provide any financial documents in this impartial hearing.

Second, courts are justified in denying tuition reimbursement when there is no indication that the parents ever intended to return the child to a placement offered by the school district. Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 416 (S.D.N.Y. 2005). In the instant case, the Mother admits that she did not pay any private school tuition for two years, and that she expected that she would not pay any tuition for the 2010 – 2011 school year. Anticipating that could continue to receive a free private school education, there is no evidence that the Mother ever seriously considered sending to a public placement rather than continuing to send her daughter to the private school for free.

Lastly, the current case is distinguished from Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). In that case, the entered into a monthly payment plan with the parents pending resolution of their request for public funding. Under that plan, the parents paid off their tuition debt in monthly installments of one hundred dollars ($100). As of the time of the impartial hearing, the parents had already paid $1,100 to the Rebecca School. A representative testified at the impartial hearing that if the parents failed to make their monthly payments, the School would take legal action against them.

In the matter before me, the contract the Mother signed for 2010 – 2011 school year plainly states:

“2. Tuition

a) I acknowledge that my child‟s tuition for the 2010-1022 Academic Year will be $44,500.00 and I agree to pay such tuition in accordance with the terms and conditions of this Contract. I acknowledge that I am responsible for the full payment of the tuition due under this contract. . . .

8. Schedule of Payment

a. No deposit payment is required to be paid.

b. Payment of the full amount of tuition is due on or before September 30, 2010.

c. I understand that the will permit payment of the tuition owed under this contract to be delayed beyond the due date in the event that I undertake to pursue my due process rights to seek direct or „prospective‟ tuition funding from the New York City Department of Education. . .

3. Tuition Funding/Parent Cooperation

a) In the event that I decide to seek direct or „prospective tuition funding from the DOE for my child‟s placement at Cooke Center, I agree to take all necessary steps to secure such funding as promptly as possible and to cooperate fully in the process required to secure such funding.

b) I understand and agree that, in the event that I fail to cooperate fully in said process, may elect upon 30 days notice, to terminate my child‟s enrollment at the Cooke Center.

c) In the event that I am denied all or part of direct or „prospective‟ tuition funding from the DOE for the tuition due under this contract by a final administrative or judicial decision resolving my claim for such funding, I agree to pay the tuition due under this contract within sixty (60) days of such final decision

...“

(Ex. M)

Despite the plain language of the contract, the Mother testified that she was not directly responsible to pay the tuition. (Tr. 138) The contract requires the Mother to “take all necessary steps to secure such funding as promptly as possible,” but the Mother did not request this impartial hearing for a year until August 12, 2011 just before the start 2011 – 2012 school year. (Ex. A)

The did nothing to pursue the tuition from the Mother and it took no steps when the Mother did not pursue prospective direct payment during the 2010 – 2011 school year. The had the option to terminate upon notice, but it did not do so. It sent no invoices to the Mother, and it took no other steps to have her pursue direct prospective payment from the Department of Education in compliance with the terms of the contract.

In Mr. and Ms. A, the Court responded to the Department of Education‟s claim that prospective direct payment to private schools would permit parents and private schools to enter into sham agreements with inflated tuition. The Court found that:

“. . . Hearing officers and reviewing courts, however, already possess ample authority to reject or reduce tuition funding or payment requests where there is collusion between parents and private schools.”

In the instant matter, although there is no inflated tuition, I find that the March 24, 2010 contract is such a sham. I find that the Mother had no obligation to pay her child‟s tuition at the Cooke Center.

I find that equity does not favor the Mother for all of the above reasons.

CONCLUSION

The Department of Education conceded that it did not offer a FAPE on the first criterion. The parent did not establish that the School was an appropriate placement for for the 2010 – 2011 school year on the second criterion. Equity does not favor the parent on the third criterion.

ORDER

There is no order in this matter.

Dated: November 30, 2011

Corrected Date: December 5, 2011

________________________________

BARBARA J. EBENSTEIN

Impartial Hearing Officer

BJE:jj Transcript Corrections

Page 147, line 15, the year is 2008

Page 122, line 23, “ Lehman College” not “Lemon College”

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

A Impartial Hearing Request, 8/12/11, 3 pp. B Student Progress Report for 2010-2011, 19 pp. C Grade Reports, 5/26/11 and 11/13/09, 10 pp. D Ten-Day Notice, 10/5/10, 1 p. E Ten-Day Notice, 8/27/10, 1 p. F Ten-Day Notice, 8/24/10, 1 p. G Evaluation from 2008, Examination dates 8/7/08 & 8/21/08, 5 pp. H Evaluation from 2010, 6 pp. I Class Schedule for 2010-2011, 1 p. J IEP, 5/24/2010, 11 pp. K New York City Department of Education 2010-2011 Progress Report Overview,

2 pp. L School Progress Report, 2009 to 2010, 24 pp. M School Enrollment Contract, 2010-2011, 2 pp. N School Mission Statement, 4 pp.

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Footnotes

[1] I note that actually attended a mixed grade level middle school class in the 2010 – 2011 school year. (Tr. 110)