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: December 21, 2011 Actual Record Close Date: January 9, 2012 Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011

Parents

Parents

For the Board of Education: — Student

District Representative — Student

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a unilateral placement at a private school for the 2011-2012 school year and the Parents are requesting reimbursement of past tuition and an order of prospective tuition payment and related services. The issue is whether the school the Student is currently attending is an appropriate placement.

Parents’ Position

The Parents’ position is that the District has failed to provide the Student a Free Appropriate Public Education (FAPE) because she was not offered a placement at a school. In the complaint notice, dated September 16, 2011, the Parents also stated that they were unilaterally placing the Student in her current private school for the 2011-2012 school year and are requesting retroactive tuition payment for the summer and fall sessions, and payment for the spring session. (Ex.W) The Student also receives Related Services Authorizations (RSAs) for the related services of and therapies, and the Parents would like the District to continue to provide payment. (Tr. P. 55). The Parents also want the District to continue to include a transportation paraprofessional, (which the District does not currently have available).

District’s Position

The District concedes the issue of FAPE. (Tr. P. 13) They offered no witnesses for their case. (Tr. P. 13) At the hearing, the District representative asked that the school include the related services as part of their tuition and said that the District should not have to be responsible for continuing to pay for them. (Tr. P. 56)

Student History

The Student is a girl, classified as having . In her first , at and a old, her doctor stated her condition was “ and .” (Ex. A) The Student has “ ” (Ex. AA). She is also but has learned to communicate with , an , and a . The Student is” ” and is “ ” (Ex. P) In addition, “she is ” (Ex. V) and and . The Student has been in a small private school for children with since September 2005. The school uses a program called which combines “ with .” (Ex. D) She , services and has a paraprofessional in school with her all day. A random review of the progress reports show that the Student has made progress in her goals in the areas of “literacy, mathematics, science, .” (Ex. AA) The August 2011 progress report states that she is even participating in the extracurricular activities of , and art. (Ex.AA) The reports show growth in her , and is . (Ex. AA)

Background

The Parents unilaterally placed the Student in a private school in September 2005, and as a result of an impartial hearing decision on November 4, 2005, the District paid the tuition for the 2005-2006 school year, and settlements between the Parents and the District in 2006, 2007, and 2009 provided payment for the 2006-2007, 2007-2008, and 2008-2009 school years. However, the District did not offer placement for the 20092010 school year, so in a complaint notice, dated 9/11/09, the Parents unilaterally placed the student in her current school and requested an impartial hearing to address tuition reimbursement (Ex. Q) and additional forms of relief. The Parents submitted another complaint notice on 7/8/10 stating the District had recommended a placement in a public school setting which the Parents considered inappropriate. They requested an impartial hearing and tuition reimbursement for the private school. (Ex. T) In the Parents’ most recent complaint notice, dated 9/16/11, the Student still had not been offered a placement, and the Parents again unilaterally placed the Student in the same school for the 20112012 school year and requested an impartial hearing for relief of tuition reimbursement.

Legal Principles

Reimbursement Generally

This case deals with reimbursement by the District to the Parents for tuition and related expenses incurred in the placement of the Student in a Private School. The standard is set forth in School Committee of the Town of Burlington vs. Department of Education Massachusetts, 471 US 359 (1985); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]: [A] "Board of Education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the Board of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim."

In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)

ANALYSIS

Prong I

The first issue in this litigation is whether the District provided the Student with a FAPE for the 20011-2012 school year. They did not. The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This relatively straightforward obligation of the District is underscored by the obligation to put forward a case. “A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In this case the District has failed to meet its obligation of demonstrating an appropriate program. Their advocate candidly conceded that a program was not offered to the Student. Further, no witness was called and no record was made on behalf of the District’s obligation relative to Prong one of the reimbursement analysis. From the record before me I can discern no effort in administering the education of the Student. Rather it appears that a mistake was made.

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080 In order to meet that burden, respondent must show that the services provided were "proper under the Act," (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370) i.e., that the private school offered an educational program which met the student's special education needs. (Application of a Child with a Disability, Appeal No. 01-010) The private school need not employ certified special education teachers or have its own IEP for the student; (Carter, 510 U.S. at 7; Application of a Child with a Disability, Appeal No. 02-014, Application of a Child with a Disability, Appeal No. 01-105)

In the instant case, the Private School in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported by the progress reports of the Student at the Private school demonstrating progress (Ex. AA); the testimony of the Parent indicating a consensus that the Student’s private educators were delivering an appropriate education; (Tr. 49-50, 53) and the documentation describing the private school and the programming offered to the Student at that location. (Ex. D)

Prong III

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]1; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

20 U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- `` (I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . . (iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement—

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

The record reflects that the Parent offered the District the requisite notice when they understood a placement from the District would not be forthcoming. Because of this and in consideration of the totality of the record I find no basis under prong III to reduce or deny tuition reimbursement.

It is therefore ORDERED

That the District reimburse the Parents for one-hundred percent of the cost of tuition up to this point at the Private School for the 2011-2012 school year;

That going forward, I direct the District to develop and implement at public expense an IEP placing the child in the Private School for the remainder of 20112012 school year and offer extended year services if warranted;

That the District provide tuition reimbursement for tuition at the Private School during the summer of 2011; and

That the District issue Related Service Authorizations for the related services that have been provided pursuant to the Student’s IEP dated 5/2/11 (Ex. V) and that the District continue to issue Related Service Authorizations in conformity with the Students IEP dated 5/2/11/ (Ex. V) until such time as the superseding IEP (contemplated in the above decretal paragraph) is formed, and at that time, to continue to issue Related Service Authorizations in conformity with that IEP.

Dated: January 18, 2012

____________________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Exam, 10/22/99, 2 pp. C IEP, 6/23/05, 2 pp. D School Brochure, 11/22/11, 9 pp. P IEP, 8/10/09, 8 pp. Q Complaint Notice, 9/11/09, 5 pp. R Monthly Attendance, 9/2009-6/2010, 13 pp. S IEP, 6/2/10, 8 pp. T Complaint Notice, 7/8/10, 3 pp. U Monthly Attendance, 7/2010-6/2011, 12 pp. V IEP, 5/2/11, 9 pp. W Complaint Notice, 9/16/11, 4 pp. X Enrollment Contract, 7/18/11, 7 pp. Y Monthly Attendance, 7/2011-11/2011, 5 pp. Z Individual Income Tax Return, 4/17/11, 2 pp. AA Progress Reports, 3/2009, 3/2010, 1/2011, 8/2011, 59 pp.