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: August 30, 2012

Record Close Date: September 4, 2012

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2012

Attorney — Student

Attorney — Student

Parents

Director, — Student

Attorney — DOE

This is case number 139708. On August 30, 2012, 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. The record close date was September 4, 2012. , Esq. represented the New York City Department of Education (hereinafter referred to as the Department of Education) and , Esq. and , Esq. of , represented the Mother. The Department of Education did not object to two attorneys appearing on behalf of the Parent. (Tr. 9) A list of witnesses who testified and documents received into evidence is attached to this final decision.

PROCEDURAL HISTORY

This matter was set for a hearing on August 30, 2012. The Department of Education moved for an adjournment and extension of compliance due to summer vacations. (Ex. IHO 1) The New York State Commissioner of Education regulations limit the scope of the impartial hearing officer’s discretionary authority to grant an adjournment and extension of compliance:

(ii) The impartial hearing officer may grant a request for an extension only after fully considering the cumulative impact of the following factors:

(a) the impact on the child's educational interest or well-being which might be occasioned by the delay;

(b) the need of a party for additional time to prepare or present the party's position at the hearing in accordance with the requirements of due process;

(c) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and

(d) whether there has already been a delay in the proceeding through the actions of one of the parties.

(iii) Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, settlement discussions between the parties or other similar reasons.

Agreement of the parties is not a sufficient basis for granting an extension.

New York Commissioner of Education regulation section § 200.5(j)(5)

(emphasis added) I found that I do not have authority to grant this adjournment and extension of compliance based upon school vacations, and I asked the parties whether there was a compelling reason or a substantial hardship. (Ex. IHO 1) In an August 3, 2012 email, Mr. clarified that:

“the witness who would not be available on Thursday, August 30, 2012, is Craig

, School Psychologist, who helped draft the Student’s proposed Individualized Education Plan (“IEP”) for the 2012-2013 school year. Based on a conversation that I had with Mr. on Wednesday, August 1, 2012, Mr. is on vacation until on or about Tuesday, September 4, 2012. Upon information and belief, provisions of Mr. ’s employment contract prevent the Department from calling him as a witness in this proceeding while he is on vacation. . . . Thus, the scheduling of this matter on

Thursday, August 30, 2012, would cause a substantial hardship to the Department in that the Department would not be able to present testimony about appropriateness of the IEP that is the subject of the instant litigation.”

This is still a motion to extend due to the summer vacation of one potential witness. I also note that provisions of the teachers’ contract with the Department of Education may not conflict with the provisions of federal and state law. These are not compelling reasons and they do not establish a substantial hardship. First, another Committee on Special Education (“CSE”) member may well have been available. Second, there is no documentation that the absent witness demanded payment to appear. I denied the motion again, and the case proceeded to a hearing as scheduled. (Tr. 13)

PENDENCY

The Mother requested a pendency order in her impartial hearing complaint based upon an impartial hearing officer’s decision dated August 2, 2011. (Ex. A at 3) That decision is before me in this impartial hearing as Exhibit B. I note that it relates to the 2010 – 2011 school year. There is no documentary evidence or testimony of what happened in the 2011 – 2012 school year, and this impartial hearing relates to the 2012 – 2013 school year. I have nothing on which to base a pendency order, however, Mother motioned for a proposed pendency order that the Department of Education did not contest. I have attached the uncontested pendency order to this final impartial hearing decision.

ISSUE

The sole issue before me is whether the Mother is entitled to prospective direct payment for the Mother’s unilateral placement of (“ ”) at the for the 2012 – 2013 school year.

PARENT’S POSITION

The Parent believes that the Department of Education failed to offer a “free and appropriate public education” (“FAPE”) to Justin for the 2012 – 2013 school year. She believes that the provides with an appropriate education, and that equity favors her request for prospective direct payment.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education did not put on a case or offer any documents in evidence, although it did not concede anything either. On the second criterion, the Department of Education alleges that the grouping of students at the is similar to the grouping in the offered public placement that the . (Tr. 114) The Department of Education focused its argument on equitable issues, especially the contract between the parents and the for the 2012 – 2013 school year which the Department of Education contends is “illusory.” (Tr. 115, 118)

STATEMENT OF FACTS

. is an . He has attended the . (Tr. 98) ’s Mother testified that his school . (Tr. 101-2) He does not take medication for . (Id.) There is no documentation of Justin’s school attendance in this impartial hearing.

although he communicates with , . (Tr. 276) He has that make it difficult for him to . (Tr. 27, 37) He has . (Tr. 29)

has made progress at the over the last three years. He is , and he can feed himself. (Tr. 37, 46) He is beginning to put two word approximations together. (Tr. 30) He is able to sit for twenty minutes, and he can hold a book and turn the pages at the proper time. (Tr. 34) He is working on symbol recognition, which is a pre-reading skill. (Tr. 38) In math, can count to three and he is still working on correspondence from . (Tr. 40-1)

The Committee on Special Education (“CSE”) met on March 26, 2012 for an annual review. (Tr. 73) The CSE recommended a public placement in a special school with six children with one teacher and one paraprofessional. (Tr. 74) The Mother received a copy of the proposed IEP, and a placement for . (Ex. E) The proposed “individualized education program” (“IEP”) and “final notice of recommendation” (“FNR”) are not in evidence in this impartial hearing.

The Mother visited the proposed placement on June 15, 2012. (Tr. 104) She believes that the children in the proposed class are higher functioning than Justin as they were doing math and reading. (Tr. 106) The proposed class has a student-teacher – assistant ratio of while class has a ratio of seven students, one teacher, and three assistant teachers. (Tr. 48) The believes hat the proposed class does not have enough support for Justin. (Ex. E at 1) Furthermore, the proposed class is on the third floor and there is no elevator in the building so would have to . (Tr. 105) The children eat lunch in a cafeteria with about two hundred children. (Tr. 104) This public program does not have a reward system. (Tr. 108) The sent a letter to the CSE rejecting the placement, and giving notice of her continued unilateral placement of Justin at the Rebecca School. (Ex. E)

has attended the for three years since 2009. (Tr. 98) The is an unapproved private special education school for children with delays in relating and communicating who are aged four to twenty-one. That includes children diagnosed with disabilities on the autistic spectrum and others. The private school uses the “Individual Difference Relationship” (DIR) model. (Tr. 21) DIR is a methodology based upon the work of Dr. who observed that typical children go through six developmental levels by the age of five or six. (Id.) These developmental levels are: regulation, attention, back and forth communication, shared social problem solving, symbolic thinking, and building logical bridges between ideas. Typical students are ready for a more formal educational setting when they complete these six levels at approximately the age of six. Dr. served as a consultant to the until his recent death. Now, there is another consultant there on a regular basis. (Tr. 56) The provides , and .

The Mother signed a document purported to be a contract with the School dated July 3, 2012. (Ex. C) Although the document states that the “amount of the contract is $97,700,” the established payment schedule for the Mother in the addendum is:

“Non-refundable deposit: June 29, 2012 $500.00

Balance of Deposit: September 14, 2012 $4,500.

Total Deposit $5,000.

Payment 1 Due March 15, 2013 $1,500.

Payment 2 Due June 1, 2013 $2,000.

Payment 3 Due August 15, 2012 $2,000.

Payment 4 Due November 15, 2013 $2,000.

These payments will be waived if the DOE . . . prospectively pays tuition prior to the payment dates above. (emphasis in the original document).

The balance of the tuition will become due upon payment by the Department of Education . . . If Payment is not received by June 1, 2013, a new Payment Schedule may be put into place and the remaining balance may become due immediately.”

(Ex. C at 5) The payments in this schedule total $12,500. If this document binds the Mother at all, then I find as a matter of fact that it only binds her to a total of $12,500.

Although there was a deposit payment due on June 29, 2012, the Mother has made no payments on this contract. (Tr. 45, 54, 62, 87, 97) Her attorney stated on the record that the wrote a $500. check to the private school that “bounced.” (Tr. 123) The Mother made some payments in each of the three previous years. (Tr. 62-3, 72, 98-9) Exhibit C states that “if timely payment is not made within ten (10) calendar days of the payment date, a late charge of $300. or the maximum amount permitted by law shall be incurred. . . . “(Ex. C at 2) (emphasis added) I note that the word “shall” is mandatory language. In this case, the Mother did not pay the $500. deposit, but the did not charge her the mandatory additional charge. (Tr. 63) Ms. explained that the took no action when the Mother did not make a timely payment as she believed that there would be a pendency order so the Department of Education would make payments instead of the Mother. (Id.) I note that on June 29, 2012 when the first payment was due, the Mother had not even filed the impartial hearing complaint yet. (Ex. A is dated July 5, 2012.) Instead, the private school permitted the Mother to delay payment until September 14,

2012. (Tr. 88)

receives $488.34 per month in Social Security payments. (Ex. D) ’s Mother was working in the corporate office payroll department of a well-known international business. (Tr. 109) She testified that she was let go, and she received unemployment payments until they ended. She also testified that the last time she filed income tax forms was 2010 because she no longer works or receives unemployment. (Tr. 96) She and Justin live with her mother, and she does not pay her any rent. (Tr. 111) I note that there are no financial documents related to the Mother in evidence in this impartial hearing. There are no tax documents, financial assistance documents, unemployment termination records, nor any other financial records in this impartial hearing. I find that the Mother has not established her inability to make tuition payments to the as a matter of fact.

CONCLUSIONS OF LAW

The Mother seeks prospective 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 prospective direct payment when the parents established that they could not afford to pay the full 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 Educ. 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 did not put on a prong one case, and therefore, it did not carry its burden to establish that it offered FAPE for the 2012 – 2013 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). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. . . but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, 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 . . . “

Gagliardo, 489 F.3d at 112

In the instant matter, the Mother placed . at the , which is a private special education school for children who have . The uses a specific methodology and curriculum, and it provides related services in the school. Justin is in a small class with a certified special education teacher and additional support personnel. The Rebecca School is in a small building with an elevator so that he does not have to negotiate flights of stairs. The addresses needs.

I find that the Mother has carried the burden to establish that the is an appropriate placement for . for the 2012– 2013 school year.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. See Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 374 (1985) and M.C. v. Voluntown, 226 F.3d 60, 68 (2d Cir. 2000). "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(c)(iii) See Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402,

417-18 (S.D.N.Y. 2005)

In this case, the Mother seeks prospective payments instead of reimbursement. “In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.” S.W. v. New York City Department of Education, Id., at 25, 26. “Where... parents have satisfied each of the Burlington factors, this Court’s ‘broad discretion’ to ‘grant such relief as...is appropriate’ under § 1415(i)(2)(C)(iii) includes the power, in a proper case, to award retroactive direct payment of private school tuition.” Mr. and Mrs. A. v. New York City Department of Education, at 41. As the District Court stated in Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), “[i]t simply cannot be the case that an act designed to grant ‘all’ disabled children access to needed services would undermine that very goal by making such access dependent upon a family’s financial situation.” Id. at 805.

In the case before me, the previous impartial hearing decision did not analyze the matter as a case of prospective payment. (Ex. B) Instead, he ordered reimbursement of the Parent. (“the DOE shall reimburse the Parent for the cost of the students station at private school for the 2010 – 2011 school year.” Ex. B at 33) Even so, the Parent submitted into evidence a 2009 income tax return in that case. (Ex. B at 35)

In this case, there are no tax records from 2010 when the Mother claims she last filed tax documents. There are no assistance documents, termination of unemployment documents, or other financial records relating to the Mother in evidence. The only financial record before me is , and that document does not explain the Mother’s finances. The Mother first claimed that her own income comes exclusively from ’s Social Security payments.

MS. : It is Exhibit D. Do you

recognize this?

MS .: Yes.

MS. : What is it?

MS. .: It's s

that he receives.

MS. : Is this a type of income

that he receives?

MS. : Yes.

MS. : Do you receive any other income? (emphasis added)

MS. .: No.

....

MS. : Are there any other funds

that you--are there any other forms of funds, I should say, that you receive at this time?

MS. .: No.

(Tr. 88-9)

payments are intended to support and not his Mother. The Mother later testified that her own mother provides necessities for her. (Tr. 112) There was no testimony from the grandmother who is alleged to be supporting the Mother. I find that the Mother did not establish her own finances and her inability to make payments to the .

The Mother signed a document purported to be a contract with the dated July 3, 2012 for a total of $12,500. at that time. There is a provision that the private school may change that amount and schedule if the Department of Education does not pay the private school by June 1, 2013. I find that there is no fixed amount that the Mother must pay in this document. It is merely an agreement that she may pay something.

The Mother made no payment to the for the 2012 – 2013 school year, and the took no action as both parties assumed that the Department of Education would pay the tuition instead of the Mother.

MS. : Have you attempted to make

any payments for the '12/'13 school year?

MS. .: Not as of yet.

MS. : Why not?

MS. : Because of the pendency.

(Tr. 87)

and Ms. explained that the took no action when the Mother did not make a timely payment as she believed that there would be a pendency order so the Department of Education would make payments instead of the Mother. (Tr. 45, 63)

The question is whether exhibit C is a contract. The Department of Education argues that basic contract law dictates that all contracts be supported by consideration and that the Mother provided no consideration in this matter. When her check “bounced,” she took no steps to remedy the situation. In this case, the Parent gave no consideration other than her vague bare promise to pay.

I find that the document in Exhibit C is not a contract. First, there is no certain amount of tuition that the Mother owes under this document. She is not bound to any specific amount as the amount may change after June 1, 2013 long after payments are due. There is a payment schedule, but the parties did not expect the Mother to follow it as they expected the Department of Education to make all payments under a pendency order.

Second, there was no financial consideration or other consideration in this document. In this respect, the current document is distinguished from the contract in 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 . 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 this case, the Mother made no payments, and the did nothing about it.

Lastly, in Mr. and Ms. , 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, Exhibit C is the product of such collusion. It does not bind the Mother. I find that neither the Mother nor the Rebecca School followed the provisions of this document. The Mother made no payments, and the Rebecca School did not levy an additional charge although the language of the document is mandatory. The parties believed that the Department of Education would make all payments for . for the 2012 – 2013 school year. I find that the parties entered into this document merely in order to bind the Department of Education to payments. I find that the Mother has no obligation to pay ’s tuition.

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

CONCLUSION

The Department of Education did not establish that it offered a FAPE for . for the 2012 – 2013 school year on the first criterion. The Mother established that the Rebecca School was an appropriate placement for for the 2012 – 2013 school year on the second criterion. Equity does not favor the Mother on the third criterion.

ORDER

There is no order in this matter. There is an uncontested pendency order. Dated: September 12, 2012

____________________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BE:dl

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 ON AUGUST 30, 2012

PARENT

A Impartial Hearing Request, dated 7/5/12, 3 pages B Findings of Fact and decision, dated 8/2/11, 40 pages C Enrollment contract, with addendum, dated 7/3/12, 6 pages D Supplementary Security Income Payment Document, dated 3/22/12. 1 page E Letter from the Parent to the CSE Chair with a Cover and Fax Confirmation, dated 6/18/12, 3 pages F Interdisciplinary Report of Progress from the , dated 6/20/12, 14 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Scheduling Emails, Various dates, 8 pages