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: July 18, 2012

Actual Record Closed Date: July 18, 2012

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2012

Father — Student

Principal, (Via Telephone) — Student

Teacher, (Via Telephone) — Student

None — DOE

This is New York City case #138488. On July 18, 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 ., nicknamed at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. (Tr. 4) , Esq. represented the parents. The New York City Department of Education did not appear. A list of witnesses who testified and documents received into evidence is attached to this final decision. DEPARTMENT OF EDUCATION’S DEFAULT:

I sent a scheduling request to an assigned Department of Education representative and asked her to participate in the selection of a hearing date for this impartial hearing. When the representative did not offer any potential dates, I selected a hearing date. Later, the representative moved for an adjournment due to a conflict in her schedule. I denied the motion to adjourn based upon New York Commissioner of Education regulation section 200.5(j)(5)(iii):

(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 §200.5(j)(5)

(emphasis added) This impartial hearing proceeded as scheduled on July 18, 2012. The Department of Education did not send an attorney or representative to this hearing.

I find that the Department of Education in in default. I asked the witnesses a few questions after direct examination to complete the record and to clarify the record in this hearing.

ISSUE:

The sole issue before me is whether the parents are entitled to reimbursement of the partial tuition they already paid and retroactive direct payment of the unpaid tuition balance for their unilateral placement (hereinafter referred to as “ ”) for the 2011 – 2012 school year.

PARENT’S POSITION

The parents contend that the Department of Education failed to offer a “free and appropriate public education” (FAPE) to . for 2011 – 2012. They believe that provided Ari with an appropriate education, and that equity favors their request for reimbursement of the partial tuition they paid and retroactive direct payment of the remaining balance.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education defaulted.

STATEMENT OF FACTS

. is a whose primary language is Yiddish although he has some limited English. (Tr. 70) There is no documentation of a medical diagnosis of in this impartial hearing, although there is documentation that he exhibits a number of autistic tendencies. (Ex. I) The Department of Education Committee on Special Education (CSE) classified his disability as an “intellectual disability,” and that classification is not an issue in this impartial hearing. (Ex. A at 1)

Although , he can engage in when asked to do school work. (Tr. 71, 95) He can also “go to the floor” to block the world out. (Tr. 96) He is limited in his ability to express his emotions. (Tr. 98 retrieval. (Tr. 71-2, 73) His academic skills are on the pre-kindergarten level. (Tr. 22)

The CSE convened on May 10, 2011 to develop an “individualized education program” (IEP) for Ari for the 2011 – 2012 school year. This IEP is a twenty-seven page document that offers a special education class with a ratio of one teacher, one paraprofessional, and twelve students. (Ex. C at 1) It provides individual occupational therapy three times per week for thirty minute sessions in English, Yiddish speech language therapy three times per week for thirty minute sessions, and group Yiddish speech language therapy in a group up to two students once per week for thirty minutes. (Ex. B at 27)

I note that this IEP has no cognitive evaluation scores despite the fact that disability is classified as an ” (ID). (Ex. B at 16) It does report some composite ranges on a Vineland II teacher survey, but it does not give the exact scores on that instrument either. It appears that the parties simply agreed upon the ID classification. (Ex. B at 6) I note that evaluations and classification are not issues in this impartial hearing.

The Department of Education was unable to locate a bilingual placement for or September 2011, and therefore, it made an interim placement recommendation for him. The record is not clear as to the date that the parents actually received this interim placement offer. The parents did receive a C-13A form Notice of Recommendation for Interim Monolingual English Language Placements for Limited English Proficient Students dated July 19, 2011 that placed class . (Ex. U) The parents claim that they did not receive this document until sometime in the winter. They sent a letter to the CSE requesting an IEP and a proposed placement dated August 23, 2011. This suggests that the parents had not yet received the C-13A. In this letter, they also gave notice of their unilateral placement of Ari in EHT. (Ex. E) In another letter dated February 29, 2012, the parents state:

“I did not receive the DOE’s placement recommendation for my son Ariel to attend as an interim placement until this winter.” (Ex. C)

A third letter states that although the Notice of Interim Monolingual Placement is dated July 19, 2011, they did not receive until some unspecified time in the winter. (Ex. D)

The Father’s testimony did not clarify the date of receipt.

father visited the offered placement at on some unspecified date. (Tr. 109) He found that the class to be too large for and it did not offer instruction in Yiddish. (Tr.

105) The parents rejected this placement, and they kept at .

is a small special education school for thirty children who have a variety of rare disorders and conditions. (Tr. 15) The School offers its students therapy, and (Tr.

17) It employs consultants and certified teachers. (Id., Tr. 45) is located on two floors in a building that also houses a rehabilitation center, medical office, swimming pool, and two other special education schools. (Tr. 43-4) In addition to classrooms, has a computer room, gym, sensory gym, occupational room, and offices. (Tr. 19)

The students at are Jewish, and they speak Yiddish and some English. (Tr. 42, 67) There is a short ten-minute prayer song each day, but there is no evidence of other religious instruction in the course of the school day. (Tr. 42, 58) The School is closed during Jewish holidays, but it remains open on secular holidays and public school vacations.

During the 2011 – 2012 school year, was in a class of five students, including himself, with a certified special education teacher and an assistant teacher. (Tr. 65, 67) The primary language spoken in this class was Yiddish. (Tr. 67) There was also a music teacher and four paraprofessionals. (Tr. 68) There was a who was assigned to . (Tr.

48) One of the other students in his class has an intellectual disability, another has cerebral palsy (CP), and another is on oxygen for pulmonary hypertension (Tr. 66) All of these students have pre-kindergarten academic skills.

The parents signed a contract with on September 6, 2011. (Ex. Q at 3) The parents made no payments until January 2012, and then they made four payments to from January 2012 to May 2012 totaling $5,600. (Ex. R, S) The parents receive public assistance benefits and food stamps (Ex. T) There is no evidence in this hearing to establish whether the parents applied for tuition assistance at or received it although the contract states that such tuition assistance may be available. The contract states that:

DELINQUENT ACCOUNTS. If Parent fails to pay the tuition and other charges pursuant to the schedule and terms set forth in the Addendum . . . Parent shall be in default of this Contract. In the event of default, the School shall attempt to work with Parent to resolve the default on an amicable basis. Absent an amicable resolution, the School reserves the right to impose all or part of the following remedies with resect to such default: withholding of reports and/or progress document for reimbursement, refusal to enroll the Student in the School for the ensuing school year, seeking collection of the tuition and other charges, including brining an action in court, and in extreme cases in the School’s discretion, dismissing the Student from the School. If the School brings an action in court the School shall be entitled to recover the costs and expenses thereof, including reasonable attorney’s fees. (Ex. Q at 2) The School did not take any of these actions to pursue payment of the outstanding tuition, and the parents made no payments until January 2012. The parents were able to enroll in for the 2012 – 2013 school year despite the outstanding balance because of their good faith efforts. (Tr. 40)

CONCLUSIONS OF LAW

The parents seek reimbursement of the amount they paid and retrospective direct payment of the outstanding balance 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 CSE developed an IEP that indicates that is a bilingual student, and it recommended a bilingual special education class with a student to teacher ratio and related services for him. Instead of locating a bilingual class for the Department of Education offered an interim monolingual class. There is no evidence in this case that the Department of Education eventually offered a bilingual class for Ari during the 2011 – 2012 school year. Furthermore, there is documentation and testimony that establishes that Ari has intensive behavior needs that require a more restrictive environment with a lower student-to-teacher ratio than I find that the Department of Education failed to offer a FAPE to . for the 2011 – 2012 school year as the offered class is too big for him and it is not bilingual.

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).

In the instant matter, the parents placed that provided him with a small Yiddish/English special education class of five students with a certified special education teacher, additional support personnel, and related services.

I find that the parents have carried their burden to establish that was an appropriate placement for the 2011 – 2012 school year.

THIRD CRITERION

The third criterion on a Carter/Burlington analysis is whether equitable considerations support the parents’ claim. The Father participated at the May 10, 2011 CSE meeting by telephone although there is no evidence that he informed the CSE that a class was too large for (Ex. B at 2) The parents sent letters to the CSE requesting a placement. The Father did visit the recommended interim placement offered at . Furthermore, the parents did not sign the contract with until September 6, 2011. These facts support equity favoring the parents. Yet the contract with itself, and the facts and circumstances surrounding the contract, are problematic for several reasons.

First, the format of the contract raises questions as to the validity of the amount of tuition and other charges on it. The contract itself does not state the tuition nor any other charges. Instead, there is a statement that:

TUITION AND OTHER CHARGES. Parent agrees to pay the School the total tuition and other charges for the enrolled Student according to the schedule and terms set forth in the Addendum attached hereto and incorporated herein. In addition, Parent agrees to fulfill any other financial or service commitments set forth in the Addendum. Tuition assistance is available to Parent if Parent meets certain criteria, and if funds are available. Parent should request a tuition assistance form from the School office. Confidentiality shall be maintained y the School with respect to any requests for tuition assistance by Parent. Tuition assistance is in the discretion of the School.” (Ex. Q at 1) There is a one page addendum in evidence. I note that there is no evidence in this impartial hearing that the addendum page in evidence was actually attached to the contract when the parents signed it. The addendum page in evidence has a different border than the original contract. (Ex. Q at 4) Furthermore, the pagination establishes that Exhibit Q, the contract, is a three page document. The addendum is marked as the fourth page for this impartial hearing, but it has no original page number or even addendum page number.

Second, even assuming that this addendum was attached to the contract when the parents signed it, the charges are vague and inaccurate at the very least. The addendum lists a basic tuition of $60,000 and additional fees for related services that are billed on an hourly basis. Although the addendum gives a frequency of related service and a total amount for each service, it does not show how the totals were calculated. The contract and addendum are silent as to the dates covered by the contract, the number of weeks, the number of hours of service, and the hourly rate for the related services. Although the contract refers to services as “yearly”, the principal’s testimony indicates that the contract is a forty-week contract. (Tr. 46) These omissions and discrepancies make it impossible to discern how the School arrived at the total figures for each service or check their accuracy. If the School bills services by the hour, then it should explain how it is calculated.

The addendum in evidence indicates that . has related services of occupational therapy 3 x 30 for $7,200. yearly and speech pathology, 4 x 30 for $9,600. yearly. Additional services billed are aquatic therapy 1 x 30 for $2,400. yearly and “behavioral academic instruction” at $135./hour evaluation (1-3 hrs) for $1,080. yearly and 20 hours for $24,000. yearly. The summary on the addendum indicates:

Base Tuition $60,000

Related Services $44,280

Total Tuition $104,280 The addendum indicates three occupational therapy (OT) sessions per week for thirty minutes each while Ex. F, which is daily schedule at during the 2011 – 2012 school year, lists a fifteen minute session Monday from 9 – 9:15, 1 another fifteen minute session Wednesday from 3 – 3:15, and a thirty minute session Friday from 11 – 11:30. (Ex. F) This adds up to one hour of occupational therapy per week rather than an hour

Fifteen minutes sessions are unusually short. The did not testify in this impartial hearing to explain it. and a half as billed. There is another session on Wednesday at 1:30, but that is the aquatic therapy session. If this Wednesday session is being billed as the missing occupational therapy, then it is double billing as it is also billed as aquatic therapy. Double billing is fraudulent.

Third, there is no documentation or testimony in this impartial hearing as to the number of related service sessions actually received in the 2011 – 2012 school year although there was testimony that these documents do exist.

HEARING OFFICER : So I'm still

confused. So if there's no school for a week and we're counting up therapy sessions, how does he make up those therapy sessions?

MS. : He would have had them in the continuing weeks. It would have to be looked at--I would have to look at the attendance record of the individualized therapists. (Tr. 57)

Finally, the principal admitted that did not receive all of the educational services on the 2011 – 2012 contract addendum in evidence in this impartial hearing. School staff found that could not tolerate or benefit from the amount of educational services on the addendum so they reduced the amount of service. The School has recalculated the total tuition so that it went from a total of $104,280. to a total of $92,000 at some unspecified time. (Tr. 33)

MS. : So basically, his academic instruction was reduced to ten hours, so the charge has been changed to $12,000.00 yearly, which would change the related service amount and the total tuition amount.

MS. : Just doing the math, does

that drop the total tuition to $92,280.00?

MS : Yes, it does. ’s teacher provided similar testimony:

MS. : Okay. Do you know how

many hours per week he had behavioral academic

instruction?

MS. : Actually, that was, you

know, in discussions at the end of the year, we reevaluated what he got and what he needed, and on average throughout the year was about 10 hours a week. (Tr. 88-9) As the School may change the frequency of services, the addendum on the does not provide parents or the Department of Education with an amount certain when the parents sign the contract.^[2]

As for the aquatic therapy, it is provided in the swimming pool in the building with an occupational therapist. It appears to be doubled billed and counted as both an occupational therapy session and an aquatic therapy session. (Id., Tr. 58) I find that the aquatic therapy is a form of physical education that should be part of the basic tuition rather than an additional charge for any form of therapy. (Tr. 35) I disallow reimbursement or payment for aquatic therapy.

As for the “behavioral academic instruction,” s teacher testified that it is not a separate related service. It is part of her regular instruction.

MS. : Okay. And can you, who

delivered the behavioral academic instruction?

MS. : Behavioral academic

instruction is in conjunction with academic

instruction. It’s not like as a separate

therapy. It’s put into his program and it was either myself or one of the assistant teachers or other licensed teachers in the room that followed through on his program. (Tr. 89) I disallow reimbursement or payment for “behavioral academic instruction.”

In summary, I find that the contract between the parents and for the 2011 – 2012 school year with the addendum establishes a basic tuition of $60,000. All other charges on the addendum are vague and unsubstantiated at best, and fraudulently double billed at worst.

There is no evidence in this impartial hearing as to whether the parents requested or received tuition assistance that was described in the contract. I find that the parents did establish that they lack the financial resources to pay the Student's tuition costs at EHT for the 2011 - 2012 school year even though that exact amount to be paid is uncertain. See 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).

CONCLUSION

The Department of Education defaulted in this impartial hearing, but I find that it did not offer a FAPE to . for the 2011 – 2012 school year as the offered class was too large and the offered placement was an interim monolingual class. The parents did establish that was an appropriate placement for for the 2011 – 2012 school year on the second criterion. Although equity does favor the parents on the third criterion, the contractual financial arrangements between the parents and establish that equity requires that the parents are only entitled to partial reimbursement.

ORDER

I order payment to the parents to reimburse them the $5,600. that the parents actually paid to for the 2011 – 2012 school year. I further order prospective payment of the $54,400. balance for the basic tuition at for the 2011 – 2012 school year. There is no payment for related and other services.

Dated: July 30, 2012

____________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand For Due Process dated 4/11/12, 5 pgs. B New York City Department of Ed IEP dated 5/10/11, 27 pgs. C Letter From The Parent To dated 2/29/12, 1 pg. D Letter From The Parent To dated 1/29/12 E Letter From The Parent To dated 8/23/11 F Daily School Schedule, 2011-2012, 3 pgs. G Program Description, undated, 1 pg. H Behavior Academic Instruction Description, 2 pgs. I Educational Progress Report, 2 pgs. J Educational Progress Report dated 3/20/12, 2 pgs. K Progre Report dated 6/26/12, 2 pgs. L Progress Report dated 1/31/12, 2 pgs. M Report dated 6/26/12, 2 pgs. N Progress Report dated 12/1/11, 2 pgs. O Aquatic Therapy Report dated 6/26/12, 1 pg. P Attendance Report, 2011-2012, 1 pg. Q Tuition Contract dated 9/26/11, 4 pgs. R Affirmation of Tuition date 5/24/12, 1 pg. S Proof of Tuition Payments for 2012, 4 pgs. T Public Assistance Benefit Document, undated, 1 pg. U Notice of Interim Placement dated 7/19/11, 1 pg.

DEPARTMENT OF EDUCATION

None

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Footnotes

[2] It is unclear whether the School provides a refund to parents or the Department of Education when the School does not provide all of the services listed on the addendum.