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: June 5, 2013

Actual Record Closed Date: June 25, 2013

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 5 2013

Mother of Student — Parents

Esq. Attorney Associated with the Firm of, Attorneys for Parents — Parents

Curriculum Coordinator at the – the Educational Facility Student Attended for a Portion of the 2011-2012 School Year (by phone) — Parents

Clinical Social Worker – Provided Services to Student for a Portion of the 2011-2012 ` School Year (by phone) — Parents

District and New York State Department of Education Representative — DOE

The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on June 5, 2013. The proceeding was commenced by Student’s Parent, by the filing of a Due Process Complaint Notice sent on Parent’s behalf by the Law Office of to the New York City Department of Education’s Impartial Hearing Office, dated May 31, 2012 and received by said Office on June 1, 2012. After the appointment and recusal of one or more Impartial Hearing Officers, the undersigned was appointed by the Impartial Hearing Office to preside over this matter by notification dated July12,

2012. A Hearing was scheduled to be held on August 20, 2012, but was adjourned at the request of District, due to the unavailability of witnesses. A hearing was then scheduled for October 2, 2102, but was adjourned at the request of District due to h unavailability of witnesses and District’s litigator. A Hearing was then scheduled for November 19, 2012, but was adjourned at the request of District due to witness unavailability. A Hearing was then scheduled for January 16, 2013, but was adjourned at the request of District due to witness unavailability. A Hearing was then scheduled for May 2, 2013, but again had to be adjourned at the request of District. A Hearing was then scheduled for June 5, 2013, at which the hearing proceeded and was concluded. Parent’s attorneys requested the opportunity to await the Transcript of Proceedings and thereafter submit a Post-Hearing brief. Such request was granted so long as Parent’s Post-Hearing brief was submitted by the close of business on June 25, 2013. Parent’s Post-Hearing brief was received in a timely fashion as has been read and considered. The Actual Record Close Date was June

26, 2013.

According to Parent’s Due Process Complaint (Exhibit A), Student was denied a free, appropriate public education (FAPE) during a portion of the 2011-2012 school year.

Purportedly as a result of such denial, Parent unilaterally placed Student at the Yaldeinu

School in February of 2013. Parent seeks funding or reimbursement for such unilateral placement . The Student whose educational program was reviewed in this proceeding is presently eight years ten months of age, having been born on August 14, 2004. According to testimony of Parent (T.R.89-90), while the family was residing in , problems with when Student was and placed in a private nursery school, where, according to Parent, Student to his home. The following year, in a different Pre-School program, Student’s continued, as did the calls home. Parent, at this time, secured Applied Behavioral Analysis (ABA) services and Counseling. When Student he was placed in a general education setting in a private school, where he was provided with the services of a paraprofessional. Parent also applied at that time to the District for an evaluation of Student. That evaluation (Exhibit 1), which appeared extremely thorough, was conducted in June and October of 2010. Test instruments found Student to be functioning at very high levels academically, achieving scores in Reading and Spelling in the Superior Range and in the Average Range in Mathematics. It was noted by Student’s then teacher that Student was ahead of the class academically – was ahead of the program when he came, and did not gain much academically (Exhibit 1). The results of a battery of evaluative instruments explo5ring Student’s status found that Student had difficulty and adults; in assuming decisions; school yard; difficulty beginning his work on time; Student’s visual and auditory perception skills were a relative strength. Student exhibit characteristics of , as well as ). The Evaluation concluded that Student displayed many of the , including , relating to people inappropriately, impairment of social interaction, obsession to maintain sameness and resistance to controls.

In April of 2011, Parents withdrew Student from his placement in the private school in Los Angeles and went to to visit family. (Much of Parent’s testimony was confused, so that other documentation has been utilized in establishing a correct chronology). While in , Student’s . Student was enrolled in a private general education facility , but Parent and family moved to Brooklyn, New York in August of 2011. Student was enrolled in in September of 2011, with a staffing ratio, according to Parent, of but was removed from that setting in October of 2011 due to the inability of the school to manage Student’s behavior and a fear that Student would flee (T.T. 98). Parent thereupon made a referral to District’s Committee on Special Education (C.S.E.) on October 27, 2011 for an evaluation. District’s C.S.E. conducted a Committee meeting on November 16, 2011, found Student eligible to receive special education services, classified Student as having , and recommended placement in a Special Class having a staffing ratio of . Together with the Related services of Counseling, twice weekly, thirty minutes per session, individually, and once weekly, thirty minutes per session, in a group (Exhibit 3). A Final Notice of Recommendation, dated November 23, 2011, offered Student placement at . Soon after the meeting and offer of placement, Parent advised the Committee Chair that she had concerns that the program would offer Student the level of individual instruction and attention Student needed (Exhibit B). After a visit to the proffered placement, Parent again wrote to the Committee Chair, by letter dated January 10, 2011, expressing similar concerns (Exhibit C). By January 19, 2011, Parent had decided to unilaterally place Student at , and so advised the Committee Chair by letter of that date, as well as Parent’s intention to seek public funding for such unilateral placement (Exhibit D). Parent entered into a Contract with , dated February 1, 2012, for Student’s attendance at that facility for the period of February 1, 20112 through June 2012, at the cost of Forty-Eight Thousand ($48,000) Dollars (Exhibit F). As noted, Parent commenced this Due Process proceeding on May 31, 2012 to secure such public funding of her unilateral placement at (Exhibit A). It is to that request that I now turn.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the parent to provide special education services to the child had not been approved as a school for children with disabilities by the State Education Department of the State of New York would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who decide to unilaterally place their child do so at their own financial risk. Further pronouncements by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Connors v. Mills, 34 F. Supp 2d 795 (N.D.N.Y. 1998) I find that the reasoning behind such decisions applies equally to Parent’s application for retrospective funding for the services Parent have obtained for Student (see Mr. A. ex rel. D. A. v. NYCDOE, Lexis 9475 (February 2011). However, the availability of direct retrospective payments now permitted by Mr.

A. ex rel. D. A. v. NYCDOE, Lexis 9475 (February 2011), still requires the establishment of the Burlington Prerequisites.

BURDEN OF PROOF

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parent’s request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parent’s unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parent (N.Y.S. Education Law §4404). Should Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for relief must be denied.. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the parent. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement and, as here, all other requested relief, rests upon District.

However, there is no need in this proceeding that I make a determination as to whether District offered Student a free, appropriate public education for the 2011-2012 school year, because, at the very commencement of proceedings, District, through its Representative, advised that it would call no witnesses and conceded ”Prong One” (T.R.12)., that is, that it had failed to offer Student a free, appropriate public education for the 2011-2012 school year (T.R.24). District, however, challenges the appropriateness of Parent’s unilateral placement of Student at and, further, contends that Equitable Considerations favor a denial of Parent’s request for direct funding of such unilateral placement.

What must be first considered and determined is whether Parent’s unilateral placement of Student at for the 2011-2012 school year was appropriate. As noted by the State Review Officer in determining the Application of Blank, Appeal No. 09-020:

“A private school placement must be “proper under the Act” (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch.

Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 [1985]), i.e., that the private school offered an educational program which met the student’s special education needs (see Gagliardo, 489 F. 3d at 112, 115; Frank G. v.

Bd. of Educ., 459 F.3d 356, 363-64 ]2d Cir., 2006]; Walczak, 142 D.3d at 129 [2d Cir., 1998] Matrejek, 471 F. Supp. 2d at 419 [ S.D.N.Y., 2007], aff’d 2008 WL 3852180 [2d Cir., Aug 19, 2008). A parent’s failure to select a program approved by the state in favor of an unapproved option is not by itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-

016; Application of the Bd. of Educ., Appeal No 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability , Appeal No.02-014; Application of a Child with a Disability, Appeal No. 01-105) Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo, 489 F.3d at 112; see M.S.v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir., 2000]). Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo, 489 F. 3d at 112; Frank G., 459 F.3d at 364 [quoting Rowley, 458 U.S. at 207 and indentifying exceptions]). Parents need not show that the placement provides every special education service necessary to maximize the student’s potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, “[U]ltimately the issue turns on “whether the placement is reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; (see also Gagliardo, 489F.3d at 1120.

While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 345 F.3d 515, 522 [6th Cir., 2005]

[stating ‘evidence of academic progress at a private school does not itself establish that the private placement offers adequate or appropriate education under the IDEA”]). A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child” (Gagliardo 489 F.3d at 115 citing Frank G., 459 F,3d at 365 quoting Rowley, 458 U.S. at 188-89 [emphasis added].

The Second Circuit has set forth the standard for determining whether parents have carried their burden demonstrating the appropriateness of their unilateral placement:

‘No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonable calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, 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 specifically designed to meet the unique needs of a handicapped child supported by such services as are ne4cessary to permit the child to benefit from instruction.”

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The was described at the hearing by its Curriculum Coordinator Rivky Wakszul. Witness Wakszul stated that was an ABA (Applied Behavior Analysis) school that utilizes one-on-one teaching, group instruction and related services (T.R.22). The witness described Applied Behavior Analysis as a method of utilizing antecedents and consequences in order to see behavior increases or decreases, and that such method is utilized during the entire day – whether in group or on-to-one instruction. To support such program, the School employs a Board Certified Behavior Analyst, who is responsible for developing a Behavior Intervention Plan for any student who requires such, and who oversees and monitors the implementation of such Plans and the data which are collected as part of such (T.R. 23). The Board Certified Behavior Analyst was not called as a witness in this proceeding. Student was placed in a class with a staffing ratio of 7:1+7, which had one master teacher and seven instructors, with children ranging in age from five to eight, and with various disabilities. The class had its time split between individual and group instruction (T.R. 25-26). According to Witness , the School provides educational opportunities for students who require one-on-one instruction for cognitive deficits or behavioral or social concerns (T.R.26). According to Witness Student was unable to join any group activities or instruction, noting that, when Student was placed with a group, to both staff and peers. It was noted that Student was not able to be for the entire time Student attended (T.R.37). So, it appears, from his peers for the entire time he attended the unilateral placement. Student, according to , was provided during the school day, with one instructor, as was each of the students in the class, who might work with one other instructor as a team, while the class was presided over by a master teacher. While some rotation of personnel was provided, each student always had the particular attention of an instructor. According to her testimony, the disabilities of the six other students in the class were of such severity that each – whatever their disability – and she was not forthcoming with information regarding the nature of such disabilities - also required the assignment of a particular instructor (T.R.54) (see also T.R.61). Witness confirmed that Student was opined that Student was functioning at the Second Grade level in Reading and Math, while the closest other student was functioning at a First Grade level. The levels of other, less functioning students in the class were not provided.

However, whatever the levels of the students in the class into which Student was placed, academics were never an area in which Student displayed any significant deficit – or, indeed, any deficit whatsoever. With the provision of an individual instructor working with Student throughout the school day, it might have been expected that Student’s academics would soar. Yet, according to , Student was at a Second Grade level in Reading and Math – the same level that Student had displayed when evaluated in June and October of 2010 (Exhibit 1). Also, it appears that, despite the full attention of an instructor and the implementation of a Behavior Improvement Plan, Student’s behaviors continued to be so uncontrollable that Student was unable to join a group for instruction during the entire time he attended during the 2011-2012 school year. As Witness Wakszul testified, all of the other students in the class received group instruction daily (T.R.61)

Student also received some Counseling services while at during the 2011-2012 school year. Such services were provided by Certified Social . testified that she began providing Student with Counseling sometime about the last week of March, 2012, at the rate of one time per week, forty-five minutes per session (T.R.69). At some point – which the Witness could not recall – she was requested by the School to increase her counseling services to Student to twice per week (T.R.69). It appears that Student received no services while at the School except for those provided by Social Worker (T.R.75). testified that she in an attempt to help Student to identify his feelings, so that Student could learn to how to verbalize and, thereafter, regulate them (T.R.71). provided her in a therapy room and was never involved in his classroom activities, although she stated that she did convey her work with Student to his classroom teacher (not specifying whether it was the master teacher or the instructor assigned to Student), who would then (purportedly) implement many of the strategies that the Social Worker had worked on, as that teacher (or instructor) worked with Student one-on-one. testified that such collaboration between her and Student’s teacher or instructor was “detrimental” (sic – she meant “essential” T.R. 74) to Student’s progress and that, without such collaboration, Student could not have functioned (T.R.73). Accepting such statement as accurate, such would mean that, certainly before April of 2102, when Social Worker Kadosh began to provide services to Student, Student was unable to function even with a one-on-one instructor. Moreover, I find it significant that, as Student’s specific area of need was in controlling his inappropriate behaviors, it was the opinion service provider that Student, had made only “minimal” progress by the conclusion of the 2012-2013 school year (Exhibit H, p.4) (T.R.86).

A review of Student’s End-of Year Report from the Yaldeinu School notes that Student’s greatest area of strength was in Reading, while his greatest area of deficit was in his behavior management. Although I am more than skeptical of the advances reportedly made by Student in the areas of Reading and Math, as reflected in that Report, Student did not need a restrictive special education placement for assistance in those areas, as Student displayed superior skills in such areas. Student’s significant area of deficit was in his Behavior Management area and it is my finding that such was not appropriately addressed in the unilaterally-selected placement. As previously noted, “while evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 345 F.3d 515, 522 [6th Cir., 2005], it may well be that evidence of minimal or no progress may well establish that a private placement is inappropriate.

As was also previously noted, A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child”. It is my finding that the Yaldeinu School did not provide any instruction specifically designed to meet Student’s unique needs regarding his area of severe deficit, as is clear from the fact that it was not able to even initiate Counseling services for Student until he had been at that placement for almost two of the five months Student was in attendance during the 2011-2012 school year, that the School found – at some time unclear from the Record – that the rate was inadequate and needed to be doubled – and that only minimal progress was made over the period for which direct funding is sought. I can only wonder why Parent believed that placing Student in such a restrictive setting, with six students whose deficits required the constant involvement of an instructor, and whose program was to provide students with group instruction, when Student was unable to conduct himself appropriately in such setting and where there existed no valid program for addressing his by-now obvious behavioral deficits, was a decision made in the best interests of Student.

It is my finding and determination that Parent has failed to bear her burden of establishing that Parent’s unilateral placement of Student at for the period of February 2012 through June of 2012 was appropriate.

Having made such determination, it is unnecessary that I consider or rule on the issue of Equitable Considerations.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED. Dated: July 18, 2013

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW: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 RECORD ON JUNE 5, 2013

A. Parent’s Due Process Complaint Notice, dated 5-31-12 (3 pages; Parents)

B. Letter from Parent to C.S.E. Chairperson, Parent dated 12-6-11 (1 page; Parents)

C. Letter from Parent to C.S.E. Chairperson Parent dated1-10-12 (1); Fax Receipt Confirmation (1); Fax Cover Sheet (1) (3 pages; Parents)

D. Letter from Parent to C.S.E. Chairperson, Parent dated 1-19-12 (2); Fax Transmission Verification Report (1) (3 pages; Parents)

E. Speech Language Evaluation Report by, M.S., Parent CCC-SLP,, dated 5-2012 (6 pages; Parents)

F. Enrollment Contract by Parent and Parent dated 2-1-12 (3 pages; Parents)

G. Parent’s Federal Tax return for 2010 Parent (3 pages; Parents)

H. Progress Report by for 2011-2012 Parent School Year (4 pages; Parents)

I. Letter from Parent to C.S.E. Chairperson, Parent dated 10-11-11 (2 pages; Parents)

J. Copy of Check from Parent to dated 4-2013 Parent (1 page; Parents)

1. Psychological Assessment of Student by, School Psychologist with the Los Angeles Unified School District, dated 6-11-10 and 10-8-10 2 Not Offered (18 pages; DOE)

3. Student’s I.E.P. as Developed by District’s C.S.E. on 11-18-2011 (11 pages; DOE)

4. Final Notice of Recommendation, dated 11-23-11 (1 page; DOE)