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: March 26, 2012

March 29, 2012

May 30, 2012 Actual Record Close Date: June 14, 2012 Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26, 2012

Attorney — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 29, 2012

Attorney — Student

Mother, — Student

Family Friend — Student

Principal (via telephone) — Student

Special Education Teacher- (via telephone) — Student

Interpreter — Student

CSE Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 30, 2012

Attorney — Student

CSE Representative — DOE

— DOE

The matter of . came for hearing before me on March 26,, 2012, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2). On November 21, 2011, I was appointed as impartial hearing officer. On December 22, 2011, I scheduled this hearing for January 29, 2012. On December 17, 2012, the parents amended their impartial hearing request. On February 20, 2012, I scheduled a pre-hearing conference on February 29, 2012. A pendency hearing was held on March 26, 2012 and this hearing continued on March 29, 2012. On March 29, 2012, this hearing was scheduled to continue on April 18, 2012. On April 17, 2012, the Deptartment of Education (“DOE”) representative and the parents‟ attorney and the district representative requested an adjournment of this case for unavailability of witnesses and I granted their joint request for an adjournment. The hearing concluded on May 30, 2012. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is June 14, 2012 and the compliance date for issuing a decision is June 28, 2012. This hearing was convened at the request of the parents through their attorney. The initial request was received on November 18, 2011 and amended on January 13, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner‟s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district‟s Committee on Special Education (“CSE”). The hearing was initiated the parents of ., who challenge the May 11, 2011, review and recommendation of the CSE. The parents unilaterally placed their daughter in the (“ ”), a self-contained special education program. is a private school located in . It is a private entity lacking State Education Department approval. The parents request pendency as the result of the Findings of Fact and Decision of IHO Ajello dated January 9, 2012 and request the DOE fund this placement from the date of the amended request through the present and now seek tuition reimbursement and prospective funding tuition and related services for the 2011-2012 school year.

BACKGROUND

. She is currently in her (trans 95). She has a diagnosis of (Exh. J at 2). On May 11, 2011, District s CSE classified and recommended be placed in a special class in a specialized school with a staffing ratio of or (Exh. C at 1) and receive related services of individual (“ ) 3 times per week for 30 minutes per session and ”) 5 times per week for 30 minutes per session and a (Exh. C at 25). The parents challenged the May 11, 2011 IEP review and disagreed with CSE‟s placement. They maintained that District failed to provide a free and appropriate public education (“FAPE”) and they placed . The parents‟ submitted a loan application and promissory note in the amount of $15,000 (Exh. P) as well as cancelled check dated September 25, 2011, to for a loan from in the amount of $480 (Exh. O at 2) and a cancelled check in the amount of $1,500 dated December 6, 2011 to (Exh. O at 4) and a cancelled check in the amount of $250 dated December 26, 2011 to from (Exh. O at 6) and an affidavit from the stating the parents received loan disbursements in the amounts of $250 and $1500 (Exh. O at 8) and a cashier check in the amount of $800 dated December 30, 2011 to from the parent (Exh. O at 10) and a money order in the amount of $200 dated January 6, 2012 to from the parent (Exh. O at 11) and a cashier check from the parent in the amount of $15,000 dated January 13, 2012 to (Exh. O at 12). The parents also request reimbursement/prospective payment to of $146,620.00 (Exh. L at 4:Tr. at 154) for the 2011-2012 school year. The parent testified that she and her husband paid $18,230 towards tuition and she owes the balance of the tuition as a true debt (trans 28) ( The parent further testified that she and her husband received loans in the amount of $18,230 (Id.).

THE DEPT. OF EDUCATION‟S CASE

The Department of Education (“DOE”)‟s case was presented in the testimony of Dr. who conceded that FAPE was not provided for the 2011-2012 school year (trans. 14). Dr. Menos further conceded prong one of the Burlington/Carter test (trans. at 17).

THE PARENT‟S CASE

Ms. mother, the Principal of the and the Special Education Teacher of the EHTA testified in support of the parents‟ claim for tuition reimbursement for the unilateral placement of . The parents are seeking approximately 146,620 for tuition for the academic year 2011-2012. Ms. . testified though an interpreter that was diagnosed at an early age with a and the family moved (trans. 20). She stated for the 2010-2011 school year (Id.). She stated that . She opined that progressed in her ability to listen to a tape cassette from 5 minutes to 15 minutes (trans. 22). She further opined that and that her . She explained that she used a machine that repeated her communication (trans 36). She explained that her family income was $31,000 according to the 2011 tax return (Exh. M) and she expected the family to earn the same income for 2012 (trans. 29) She stated that she paid $18,230 of the outstanding tuition and she considered the balance of $128,390 a debt (trans. 28;34).

On cross. the parent explained that her friend assisted her. She stated that her friend told her about the loan organizations (trans. 35). She stated that she was responsible to pay back the loans (trans. 37). She further stated that her husband earned $2,200 per month and about $26,000 per year (trans. 38). She maintained that the sent her invoices each month (trans. 40).

The Special Education Teacher, testified that she was a certified licensed special education teacher and could speak fluently (trans. 43) She stated that in her class there were 5 children aged 7 to 11 and besides herself a certified special education teacher was present each morning and another certified special education teacher was present in class

2 or 3 times per week. She stated that had a morning paraprofessional and a different paraprofessional in the afternoon so that she could learn to generalize and not be dependent on 1 person (trans. 47). She recalled that was in the program for 2 years the function of the paraprofessional was to manage (trans. 48). She noted that was prone to (trans. 49). She further noted that responded to a token system and positive reinforcement (Id.). She stated that a consultant who specialized in was responsible for implementing the academic program (trans. 50). She noted that ‟s strength was her willingness to please and her ability to recognize concrete objects (Id.). She noted that communicated primarily in and used an program, a program on the iPad and an augmentative specialist guided her on how to use the and worked with individually twice a month to ensure used the device appropriately (trans. 52;94). She noted that “ (Exh. E at 1) was used to and that was able to use her (Exh. E at 2) was used for phonics and letter recognition. She explained that the “ was based on teaching the child to help identify letters (trans. 55). She explained that “ ” was program recommended by her that combined music with different writing exercises (trans. 56). She noted that had trouble (Id.). She indicated that ‟s program was based on positive reinforcement and short-term goals based on the ABBLS (Id.) She further noted that the was a (Id.). She stated that there was no religious instruction at and that students in ‟s class also functioned on a level

The special education teacher stated that data was collected daily to tract ‟s performance in each program (trans. 58). She opined that progressed in her ability to identify ; she also improved in her noted that the instruction was primarily Yiddish, but that the children were exposed to English (trans 59). She noted that was working on (trans 61). She stated that she was in contact with ‟s related service providers daily and there was staff training between 4:00 pm to 4:30 pm many days as well as single day trainings (trans 62). She further stated that the class communicated with ‟s parents through a communication notebook and telephone conversations (trans. 62).

On cross, the Special Education Teacher stated that there were 30 students at the EHTA aged 5.5 to 14 (trans. 66). She maintained that progressed during the year in her ability to use the “ ” program and progressed in her ability to identify letters, numbers, count objects. She further stated that progressed in her ability to expressively label pictures and match pictures and match colors and shapes (trans. 67). She noted that primarily spoke in Yiddish, but used the Spanish word for water (trans. 68). She recalled that spoke to her mother in Yiddish. She described the physical building of as a 6 story building and that used the floor of the building that also included 2 other schools and a medical facility (trans. 69; 73). She explained that there was discrete trial teaching of basic skills. She noted that s testing was done as a guide to see what skills needed and instruction from 9:30 am to 10:30 am was done with a teacher and ‟s paraprofessional. She noted that for every positive response that was socially reinforced. She further noted that was reinforced by a token board. She noted that the teacher recorded the data and at the end of 2 days was assessed to see if she had mastered any area in order to move on to the next objective (trans. 71). She noted that had attempted to run out of the room in the school many times, but the paraprofessional was able to manage her behavior (trans. 74). She further noted that when came to last year she was nonverbal, but Yiddish was the language spoken at home so her education at was provided in Yiddish (trans. 75). She explained that received adaptive physical education and in the sensory gym on the 4th floor each Thursday at 2:30 pm to 3:00 pm and as needed (trans. 77). She further explained that her paraprofessional would be able to take her to the at any time (Id.). She recalled that she was ‟s co-teacher last year and noted it was very difficult to assess her skills as or . She further recalled that at each subject and curriculum was individualized for each child (trans. 81). She estimated that was at a pre-level in the beginning of the 2011-2012 school year and had learned many of the skills to identify letters and learn that letters have sounds (trans. 83). She maintained that was not a religious school despite singing a pray song at 10:30 am on Monday, Wednesday and Thursday (trans. 86).

The Principal and Director of , a holder of masters degrees in special education and psychology, testified that was a program geared to each child individually and each child had a separate curriculum and program written for that child (trans. 89). She stated that was in operation for 3 years and she opened the school and oversaw the classrooms, the daily meetings for the teaching staff to ensure that each all issues in the class were addressed. She further stated she oversaw the weekly meetings with the entire staff including therapists and assistant teachers and therapists (trans. 90). She noted there were 30 students this year. She further noted that there occupied the 3rd and 4th floor of a medical rehab building (trans. 93). She explained that was a 12-month school that offered , , , as well as (trans. 91). She further explained that there were classrooms, therapy rooms, a computer room, a music room, a sensory room and a small gym (trans. 93). She described the equipment in the gym included a climbing ladder (Id.). She noted that the staff attended a 2-week orientation and attended training from 4:00 pm to 4:30 pm as training days throughout the year (trans. 94).

The Principal stated that ‟s was in a class for the 2011-2012 school year with 5 children with the same overall academic level. She opined that progressed in her behavior as last year she was in a class of 4 children. She explained that last year ‟s behavior was targeted her behavior and this year had an academic rather than behavior program. She further opined that this year was able to participate more socially and academically (trans. 97). She explained that was added to her program this year because her therapists noted that was not and not properly (trans. 98). She further explained that was added because was a and was because she could not (trans. 99). She related that was added because of ‟s component (trans. 100). She further related that feeding therapy was added to ‟ program because her classroom teachers reported that she and needed to learn how to and the could not address her feeding issues in individual sessions (Id.). She opined that progressed in her sessions and was more regulated and was able to cut paper as opposed to ripping the paper and throwing the scissor across the floor (trans. 101). She noted that received from licensed and licensed (trans. 102). She further noted that had 2 speech pathologists and received the services of a specialist in (trans. 103). She explained that used the with her paraprofessional helping her put a sentence into the device as the teacher gave a classroom lesson (trans. 104). She opined that progressed in her expressive and receptive language and progressed in her and was able to use the steps correctly (Id.). She further opined that this year was able to recognize her and greet her so she improved socially (trans. 106). She explained that $146,620 was the total tuition for a 10-month program including related therapy costs and ‟s parents were responsible to pays the tuition (trans. 108). She explained that the staff at her school did not accept a related service authorization (“RSA”) and because won her case last year more money came into the school and she believed ‟s parents would work in good faith to repay the loans and pay the tuition (trans. 109). She stated that if the parents lost this hearing, then the parents would go to (Id.). She further stated that while was a 12-month program, but only attended from September through June (trans. 111).

On cross, the Principal explained that taking a parent to the was utilized prior to going to (trans. 112;125 ). She further explained that she took a parent to the and the made a decision of how the money was to be paid to the school and both parties abided by the decision of the (trans. 114). She noted that she never took a parent to Civil Court (Id.). She acknowledged that the loan programs used by the parent were used by other parents at her school (trans. 116). She further acknowledged that the parents had an assistant who secured loans for them because they were new to the country (trans. 117). She further stated that the tuition was due on a monthly basis (trans. 123). She explained that that when the parents were able to secure a loan, then there was the expectation of receiving the monthly payment (trans. 125). She further explained that there was an expectation of payment for the tuition of the prior year at the start of the current year (trans. 126).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student‟s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child‟s parent, 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 parent‟s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The District representative conceded that was not offered an appropriate program for the 2011-2012 school year and conceded the first prong of the three-prong Burlington/Carter analysis.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2011-2012 school year. (Application of a Child with a Disability, Appeal No. 02-93; Application of a Child with a Disability, Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 02-080). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the student. (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]).

To meet the second prong, the parents 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 that met the child's special education needs. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities (Carter, 510 U.S. at 10). The student need not be the least restrictive environment (Frank G, 459 F. 3d at 364). “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”(Frank G, 459 F. 3d at 130). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Id. at 364-365). (See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that there was no evidence presented by the parent to establish how met the unique needs of the student for 12 months. I find it was uncontested that required a 12-month program and there was no testimony as to the ‟s program over the summer of 2011. The parent‟s representative asserted that the parent did not utilize the 12-month program at and that the summer program was optional (trans. 154) and only utilized the 10-month program. The SRO had held the a 10-program is not sufficient if the student required a 12-month program in Application of the New York City Dept. of Educ., Appeal No. 11-057. The district representative asserted the contract was clearly a 10-month contract (trans. 159; Exh. L). I note the contract was signed on September 6, 2011 and indicated the parent was “responsible for full payment for the entire school year regardless of the this language is ambiguous if the summer program was optional.

Further, parents must prove that the chosen placement provides educational instruction designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007). The parents have not met this burden in the instant matter, where they have placed their child at . The testimony of the parents‟ witnesses from did not establish that the student‟s program was tailored to the student‟s unique special education needs regarding the related services of and aquatic therapy. There was no testimony from the related service providers and there was no specific testimony or documentary evidence to determine how the levels of related service provision were determined given the student‟s deficit areas. There was no specific testimony or documentary evidence regarding the specific related services of or . There were no progress reports submitted from the related service providers for or and evaluations supporting the need for or .

In Application of a Child With a Disability, Appeal No. 08-013 the SRO denied tuition reimbursement for where the hearing record failed to “…specifically indicate how the program and services provided are specially designed to meet the student‟s unique needs…”. There was no documentation submitted as to any formal educational assessments. I find there was no documentation submitted as to the or the data collection. I find that there was not sufficient information about how the program at individually met her needs. There was no testimony that children in the reading and math class described in the were comparable with ‟s educational abilities. In light of ‟s , I am not convinced that is grouped appropriately for . It was uncontested that ‟s teacher was a certified special education teacher as there were 2 other certified teachers as well as many paraprofessionals, including ‟s 2 paraprofessionals in the morning and afternoon. However, it was not clear how instruction by the special educational teachers was provided to . It was not clear how much education was provided by ‟s paraprofessionals nor was it clear how progressed using the . There was no testimony or documentation as to how the paraprofessional managed ‟s behaviors or how the paraprofessional assisted in using the Further, there was no testimony or documentation to specify how the behavior academic instruction differed from the token system or the . Further, there was no explanation as to the consultant‟s role in assisting the teachers, or the paraprofessional who assisted in using the . Testimony and evidence adduced at the hearing established that the student . While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the appropriateness of the parental placement may be considered in determining whether the parents‟ placement is appropriate. See M.S. v. Bd. of Educ., 231 F.3d 96 (2d Cir. 2000).

Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at the School for the 2011-2012 school year.

Having found that the parents‟ placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parents‟ position. The district representative maintained that the parents had no debt and the impartial hearing was brought on behalf of the school not the parents (trans. 129). I do not credit the testimony of the Principal at who considered the tuition for the 20112012 school year was a debt. There was no evidence of a policy of collection. I further credit the testimony of the parent regarding the family income and I find the parents failed to establish that their income of approximately $31,200 was sufficient to pay the tuition of $146, 620. I do not credit the parent‟s testimony that she considered the tuition for the 2011-2012 school year was a debt. Moreover, there was no evidence submitted that the parent would have considered a public school placement. Lastly, I do not credit the parent‟s statement that the religious component was not important to her. Parents are required to seriously consider the public school system in seeking special education services. (Thies v. N.Y. City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354, 10 (S.D.N.Y. 2008)). The parents have not met their burden of showing that they were genuinely considering a public school program and thus have not met their burden of proving that the equities favor them.

Based on the foregoing I deny the parents‟ request for reimbursement/prospective payment of the tuition at School for the 2011-2012 school year Dated: June 28, 2012

` ______________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

.

LA:jj

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 MARCH 29, 2012

A Amended Demand for Due Process, 1/13/12, 5 pp.

B Findings and Fact and Decision by Impartial Hearing Officer , 1/9/12, 22 pp.

C IEP, 5/11/11, 26 pp.

D Letter from the Parents to , 8/29/11, 1 p.

E s Daily Schedule at , Undated, 1p.

F Program Description for , Undated, 1 p.

G Teacher's Progress Report, Undated, 3 pp.

H Progress Report, , by and

, 1/2/12, 3 pp.

I Progress Report, , by and

, 12/1/11, 3 pp.

J Educational Progress Report, 11/14/11, 3 pp.

K Attendance Sheet from , 9/2011-2/2012, 1 p.

L Tuition Contract for , 9/6/11, 4 pp.

M Tax Return, 2011, 2 pp.

N Affirmation of Tuition for , Principal,

1/31/12, 1 p.

O Proof of Tuition Payment and Affirmation, 2011-2012, 12 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 30, 2012

P Special Tuition Loan Application Form, 1/13/12, 2 pp.

POST HEARING SUBMISSIONS

I Closing Statement, 6/7/12, 4 pp.

II Dr. ‟s Closing Statement, 6/14/12, 1 p.