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: February 6, 2013

March 21, 2013

Actual Record Closed Date: April 18, 2013

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2013

Attorney — Student

Parents

Parents

Speech therapist (Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013

Attorney — Student

Parents

Parents

Teacher (Via Telephone) — Student

OT (Via Telephone) — Student

DOE Attorney — DOE

This is New York City case #142688. On February 6, 2013 and March 21, 2013, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , Esq., of , represented the parents and Esq. represented the Department of Education (DOE). A list of witnesses who testified and documents received into evidence is attached to this decision.

PROCEDURAL ISSUES

The DOE moved for a dismissal of this impartial hearing because they contend that the parents’ claim is not ripe. (Tr. 6) I reserved my decision on the motion to dismiss until I heard this matter.

The impartial hearing complaint is dated November 30, 2012. Testimony on the first day of the hearing included references to the evaluation process and a Committee on Special Education (CSE) meeting after that date. The parties agreed that I have jurisdiction to decide issues related up to November 30, 2012, and the parties did not move to extend my jurisdiction to the evaluation process and CSE meeting that followed the impartial hearing complaint. (Tr. 40) This decision does not relate to those later matters.

On February 6, 2013, I heard the Father’s testimony in this impartial hearing. In response to the Father’s testimony, the DOE moved for a subpoena on February 7, 2013. The subpoena was to be served on and Associates, the parents’ attorneys, to produce three kinds of documents:

“1. Any and all written retainer agreements or letters of engagement between the parents or grandparents or other individuals on behalf of the student and the and Associates Law Firm; and

2. The Client Intake form; and

3. Any and all cancelled checks or other proof of payment for the retainer fee received by the Law Firm or any other compensation in connection with the representation of the parents or grandparents or other individuals on behalf of the student.” The parties communicated their positions on the subpoena in a series of emails.

POSITION OF THE DOE ON THE SUBPOENA

The timing of events is an issue in this impartial hearing because the DOE moved for a dismissal based upon ripeness. I reserved my decision on the motion for a dismissal. If I do not grant the dismissal, the DOE argued that the intent of the parents and the timing of their letters to the Department of Education are equity issues on the third criterion of this reimbursement case. In requesting the subpoena, the DOE contends that:

(1) A copy of the retainer agreement or letter of engagement is not protected by attorney client privilege. The DOE attorney cited People v. Belge, 59 A.D.2d 307, 308, 399 N.Y.S. 2d 539 (1976); and Oppenheimer v. Oscar Shoes, Inc., 111 A.D.2d 28, 29

(1985) to support this position.

(2) The Client Intake Form, available on the law firm’s website, is not protected because the website indicates that the “submission of this form does not establish an attorney-client relationship.” Furthermore, the DOE argues that attorney-client privilege does not extend retroactively back to communications prior to the start of the attorneyclient relationship.

(3) Case law establishes that cancelled checks or the records of other form of payment are not privileged.

POSITION OF THE PARENTS ON THE SUBPOENA

The parents’ attorney objected to the subpoena. She argued that once an attorneyclient relationship arises, that relationship is governed by the attorney-client and work product privileges. The law firm is prepared to have me review the requested documents in came

CONCLUSIONS OF LAW ON THE SUBPOENA

RELEVANCE

The DOE requested the intake form, retainer agreement, and payment records that formally established the parents’ representation by and Associates. The first issue is not whether these documents are privileged, but whether these documents are relevant. The documents are not probative of the motion to dismiss, or of any of the issues in this impartial hearing. The parents took certain steps. Whether they were acting on legal advice or not is irrelevant. The retainer agreement and payment records could become relevant should the parents prevail in this case and seek reimbursement of reasonable legal fees, but they are not relevant to any issue in this impartial hearing.

PRIVILEGE

The law in New York State on attorney-client privilege is codified at New York CPLR § 4503:

“Unless the client waives the privilege...evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose[,] such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof.”

The DOE cited two cases to support their position. In Oppenheimer v. Oscar Shoes Inc., 111 A.D.2d 28 (1985), the Appellate Division of the Supreme Court of the State of New York, First Department, reviewed attorney-client privilege in a case that involved an action for rent on foreclosed property. The attorney for Oscar Shoes Inc. was served with a subpoena to aid in the collection of the judgment. The attorney refused to answer certain questions due to attorney-client privilege. The Court found that questions related to the receipt of money, fee arrangements, and retainer agreements between the attorney and his corporate client were not directly relevant to legal advice and, therefore, not privileged. Oppenheimer v. Oscar Shoes Inc. is a case related to business and real estate law. I find that case distinguished from the instant case in which private individuals sought legal services related to the education of their child.

The DOE also cites People v. Belge, 59 A.D.2d 307, 308, 399 N.Y.S. 2d 539; (41 N.Y.2d 60 (1976) to establish that the retainer agreement or letter of engagement is not protected by attorney client privilege. That case is also distinguished from the instant case because it involved the application of the attorney-client privilege to a corporate client that had given its financial records to an attorney to shield them from discovery. Again, this impartial hearing involves private individuals who sought legal services related to the education of their child. Even so, the Appellate Division found that:

“In general, ‘the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii)

assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client’ (citations omitted). In order for the privilege to attach the information must have been given with the expectation of confidentiality and for the purpose of obtaining legal as opposed to business advice.” People v. Belge, 59 A.D. 2d 307 (1977)

In this impartial hearing, the DOE wanted any retainer agreements or letters of engagement, the client intake form, and payment records. I find that all of these documents were created when the parents “sought to become a client.” Furthermore, they were created “for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding.” Lastly, these documents relate to the parents’ effort to obtain legal advice relating to their own family rather than business advice.

Furthermore, New York State impartial hearing officers are guided by the “Manual for Administrative Law Judges and Hearing Officers,”^[1] and it suggests that impartial hearing officers apply a broader definition of attorney-client privilege:

“Attorney-Client

Under the attorney-client privilege, an attorney may not disclose a confidential communication made to him/her by a client for the purpose of obtaining or providing legal assistance for the client. The client, too, may refuse to make such disclosure. Only the client may waive the privilege, and upon the client's death, only a limited right of disclosure that relates to wills is permitted. The privilege does not, however, extend to communications with an attorney consulted for the purpose of committing what the client knew or reasonably should have known to be a crime or fraud.” (emphasis added, page 243) I find that all the documents that the DOE requested were created for the purpose of obtaining legal assistance. Although completing an intake form online or on paper does not establish representation or a formal attorney-client relationship, I find that the form is subject to the broad definition of attorney-client privilege used in administrative hearings.

In applying the CPLR, the guidance in the Manual for Administrative Law Judges and Hearing Officers, the Court’s reasoning and analysis in People v. Belge, and ethical considerations, I find that attorney-client privilege attaches to all the documents requested by the DOE in the proposed subpoena.

CONFIDENCES AND SECRETS

The New York Code of Professional Responsibility establishes that an attorney has an ethical obligation to protect a client’s confidences and secrets beyond the limits of the attorney-client privilege.

Canon 4

A Lawyer Should Preserve the Confidences and Secrets of a Client

ETHICAL CONSIDERATIONS

EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss anything with his or her lawyer and a lawyer must be equally free to obtain information beyond that volunteered by the client. A lawyer should be fully informed of all the facts of the matter being handled in order for the client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance. The disciplinary rules define the terms “confidences” and “secrets”:

DR 4-101 Preservation of Confidences and Secrets of a Client.

A. "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. This ethical obligation exceeds privilege:

EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, he should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client. These rules establish that an attorney must keep a client’s secrets even when that information is not protected by the attorney-client privilege without regard to its source. In this case, the source is communications prior to the beginning of the formal attorneyclient relationship. I find that the documents requested by the DOE should be kept confidential even if they are not subject to privilege. To hold otherwise would force lawyers to violate Canon 4 by revealing confidences and secrets they learned prior to the formal beginning of the attorney-client relationship and would violate the spirit of EC 4-1 that encourages laymen to seek early legal assistance. I find that Ms. and Associates have an ethical obligation to protect the confidences and secrets in these documents even if they are not privileged.

RULES OF EVIDENCE/DISCRETION

It is well established that the rules of evidence in civil and criminal cases are relaxed in impartial hearings in New York State. The “Manual for Administrative Law Judges and Hearing Officers” describes the discretionary authority of an impartial hearing officer to accept, or reject, evidence:

“Part One: Application of The Rules of Evidence in Adjudicatory Proceedings

Observance of Rules of Evidence Not Required

A hallmark of administrative law is that compliance with the technical rules of evidence applicable in civil and criminal actions is not required in adjudicatory proceedings. SAPA §306(1), which governs the evidentiary standards for adjudicatory proceedings, provides that "agencies need not observe the rules of evidence observed by the courts, but shall give effect to the rules of privilege recognized by law." . . .

Additionally, the courts have not required as an essential element of a fair adjudicatory proceeding that an ALJ is bound by the rules of evidence. The refusal to mandate compliance with the rules of evidence, other than preserving the recognized common law, statutory and constitutional privileges, takes into account the major differences between judicial and administrative adjudication. In that regard, the rules of evidence have as a goal to ensure that a jury verdict is based on logic and rationality. . . .

On the other hand, the ALJ has the knowledge and ability to assess properly offered evidence and does not need the protection that the rules of evidence are designed to provide for jurors. The application of the technical rules of evidence and the necessary, and surely frequent, determination of questions regarding their application would be "inconsistent with the objectives of dispatch, elasticity, and simplicity which the administrative process is designed to promote." Thus, it has long been regarded as appropriate not to insist on adherence to the rules of evidence in adjudicatory proceedings.

Accordingly, the ALJ does not, and should not conduct a hearing through a rigid application of the technical rules of evidence. Rather, the ALJ may allow evidence to be admitted even though such evidence would be inadmissible at a civil or criminal trial.

Discretion to Admit or Exclude Offered Evidence

Although the ALJ is free to receive any offered oral or non-testimonial evidence, unless barred by an applicable privilege, it does not necessarily follow that the ALJ should receive any and all offered evidence. . . . Consequently, SAPA §301 provides for, and the courts authorize, the exercise of discretion by an ALJ as to whether or not offered evidence should be admitted.

I exercised my discretionary authority to deny admission of these documents into evidence and the subpoena for them.

CONCLUSION ON THE SUBPOENA

On February 10, 2013, I issued an interim decision in which I denied the motion for the subpoenas because:

(1) The requested documents are not relevant;

(2) The requested documents are subject to attorney-client privilege;

(3) The requested documents contain client confidences and secrets that and Associates should protect even if they are not privileged; and

(4) I exercised my discretionary authority to exclude them from this impartial hearing. I did not need to see them in camera.

IMPARTIAL HEARING ISSUE

The issue before me is whether the parents are entitled to reimbursement of tuition for the ) for the 2012 – 2013 school year. This matter is complicated by the fact that the New York City Department of Education Committee on Preschool Special Education (CPSE) did not meet for this child prior to the parent’s impartial hearing complaint. There has been no IDEA eligibility determination or any placement recommendation for . in New York State for the 2012 – 2013 school year.

PARENTS POSITION

The parents contend that they sent an initial referral to the DOE Region 7 special education office in a letter dated August 15, 2012, and that the DOE did not respond, conduct a timely evaluation, or convene the CPSE within the mandated time line. They believe that this constitutes a violation of the “Child Find” provisions of the IDEA, and that it amount to a denial of a “free and appropriate public education” (FAPE) to for the 2012 – 2013 school year. The parents also believe that the is an appropriate placement for , and that equity favors their claim for reimbursement.

DOE’S POSITION

The DOE contends that the August 15, 2012 letter was not an initial referral to the CPSE because the family resided in New Jersey at that time. (Tr. 6) The DOE claims that a second letter dated October 31, 2012 was the parents’ initial referral letter to the CPSE. When the parents filed their impartial hearing complaint on November 30, 2012, the initial evaluation period had not yet expired. The DOE moved for a dismissal of this impartial hearing because they contend that the case is not ripe. I reserved my decision on the motion to dismiss to develop a full record. Furthermore, the DOE claims that is too restrictive to be appropriate for ., and that equity does not favor the parents’ claim for reimbursement.

STATEMENT OF FACTS

is student who has a diagnosis of “ ). (Tr. 53) She presents challenging . (Tr. 207; Ex. E) She is not fully toilet-trained yet. (Tr. 61) The reports that “this is a child who has a great inability to maintain for without . She can when she , and incredibly .” (Tr. 222) One of her strongest areas is her social skills with adults, “as she is able to greet .” (Ex. II at 4)

Ava lived with her . (Tr. 81) The parents brought School in New Jersey for preschool, but it was obvious to them that it was not appropriate for Ava. (Tr. 47) The parents placed in Brandt, a public general education preschool in New Jersey, in September 2011. (Tr. 46) A teacher suggested that the parents her doctor because “something was amiss.” (Tr. 47) The parents did so, but the doctor suggested that they wait and watch. (Id.) After a speech evaluation , Dr. saw but she did not make a diagnosis either. (Ex. GG, Ex. I) A later report from the provided a diagnosis of . (Ex. F)

Around the time of her diagnosis, the parents referred , for a special education evaluation. (Tr. 56) conducted evaluations and convened a preschool IEP team that offered a public special education preschool . The parents rejected the offered public placement in , and they unilaterally placed in New York City for the rest of the 2011 – 2012 school year. (Tr. 119) The parents paid with financial support from their family, and they did not seek reimbursement from the school . (Tr. 104-5)

The parents re-enrolled for the 2012 – 2013 school year to continue preschool. The parents first received and signed a contract for the 2012 – 2013 school year for $125,000. in tuition. (Tr. 109) The Father did not recall whether they sent the signed contract back , but I note that the parents did pay a non-refundable deposit in April

2012. (Ex. G) The parents then received a second contract for the 2012 – 2013 school year for $137,500. in tuition. (Ex. D at 1, Tr. 109-110)) The parents signed this second contract on August 10, 2012. (Ex. D) The father testified explained that the new increased tuition rate was to make up for a “shortfall” at the school:

MR. .: (Interposing) They had some parent-teacher meetings, actually parent administration meetings, explaining why they had a shortfall and they needed to raise the tuition.

HEARING OFFICER: So they sent you an initial contract--I want to just be sure I got this-they sent you an initial contract for $125,000 sent you the same for the 2012/2013 school year and then a subsequent contract for $137,000 for (the same) school year.

MR. Correct.

HEARING OFFICER: And in between you signed the first contract but you don't remember whether you actually gave or not.

MR. : Correct.

HEARING OFFICER: Thank you. (Tr. 110)

The parents made the first five payments to for the 2012 – 2013 school year before they signed the second contract and before they even considered moving to New York City. They paid:

April 11, 2012 $5,000.

May 31, 2012 $25,000.

June 15, 2012 $5,000.

June 18, 2012 $20,000.

July 5, 2012 $10,000.

(Ex. G) The first payment of $5,000. was made on April 11, 2012 and it appears to be the nonrefundable deposit required by contracts. (Ex. D at 1) Although the Father testified that he did not recall whether he sent the first contract for $125,000. in tuition back to , I find that he did do so with the $5,000. non-refundable deposit and that the deposit was received on April 11, 2012.

Ava continued in preschool program during the summer of 2012. From February 2012 to August 2012, Ava was in a class with four other students, and she received occupational therapy and speech and language therapy each five times per week for fortyfive minutes. (Tr. 199) explained that all children in receive instruction on a one to one basis. (Tr. 244) But there were six adults in the classroom for five students and there were times when all six adults were there with only five children. (Tr. 255) Then the class ratio was greater than one-to-one. The students in this class had “pre-language skills” and they used technology to communicate. (Tr. 253-4) They also had “significant behaviors.” (Tr. 254)

In September 2012, Ava moved into a smaller preschool class of two other students who had more verbal skills. (Tr. 202, 252, 254) Although the September class is smaller previous class, students are higher functioning in the smaller class. (Tr. 255) This class is not capped at three students. There are only three students who are appropriate for it, and Ava is still in this class of three children. (Tr. 258-9) The class has a head teacher, a fulltime speech therapist, and four Applied Behavior Analysis (ABA) therapists. (Tr. 138-9, 164) This class ratio is also greater than one adult to one student at times. (Tr. 255, 2623)

By July 5, 2012, the parents made four more payments to the McCarton School for the 2012 – 2013 school year amounting to a total of $65,000. (Ex. G) The parents decided to move to New York City sometime in the middle of July 2012 after they paid the $65,000. in partial payments for the 2012 – 2013 school year. (Tr. 68, 100, 117) They had still not yet contacted the New York City DOE.

The parents first contacted the DOE in a letter dated August 15, 2012. (Ex. C) This is a one-paragraph letter, addressed to at the DOE that reads:

“We are writing to request special needs educational services and for our daughter, , who has been diagnosed ). We are moving to New York City on August 20, 2012, and want to get the process underway as soon as possible. Our address is XXXXX, . Our daughter was born on August 1, 2008. We would like to request a program (IEP) for her as soon as possible. We are available at your earliest convenience and are very flexible if that will help expedite the process.”

That is the entire body of the letter. It then provided two working phone numbers and repeats the future New York City address. The parents did not send the DOE any evaluations or the preschool IEP developed by or any other documents. (Tr. 110-2)

The DOE did not respond to this letter. When there was no response from the DOE, the parents took no steps to contact anyone at the DOE from August 15, 2012 until they sent a second letter on October 31, 2012. (Tr. 105)

This second letter states in part: “It has been more than sixty (60) days since we notified you, and we have not received an IEP or program recommendation for our daughter (Ex. B at 1) The Father believed that the DOE had to have an IEP within sixty calendar days of the referral, or two months, rather than sixty school days of the receipt of the consent to evaluate. (Tr. 122, 124)

HEARING OFFICER: Okay, thank you. I've seen a letter dated August 15th, 2012.

I've seen a letter dated October 31st, 2012. Did you communicate with anyone at the Department of Education between those two dates?

MR. .: No.

HEARING OFFICER: Why did you wait so long?

MR. .: At first I thought it be—

I didn't think it would be an instantaneous process. I thought it would take a while, and I knew that they had 60 days to respond. I honestly, and this may be the cynic in me, I thought it probably go towards the end of those 60 days, just from my own sense of things and—(Tr. 105-6)

The parents filed an impartial hearing complaint on November 30, 2012 before the CPSE met for its initial review. (Ex. A, Ex. 1) By the time the parents filed the impartial hearing complaint, they had made a sixth payment of an additional $60,000. for a total of $125,000. paid toward the 2012 – 2013 school year tuition of $137,500. (Ex. G)

The DOE issued a Consent for Initial Evaluation form on December 13, 2012, and the parents signed it and faxed it to the DOE on December 18, 2012. (Ex. 3) The parents selected the Paul Institute to conduct an evaluation. The Paul Institute evaluation was not offered into evidence in this impartial hearing. The parties stipulated to the fact that the DOE CPSE held an initial meeting for . on February 4, 2013. (Tr. 25-6)

MOTION TO DISMISS

I find that the parents have alleged sufficient facts, which if taken as true, establish a ripe prima facie case for reimbursement. The motion to dismiss is denied.

CONCLUSION OF LAW

States receive funds to make “FAPE available to all children with disabilities, ages three through five, residing in the State.” 20 U.S.C. §1419(b), 28 C.F.R. §300.804 The Department of Education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the school selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department is not dispositive of the parents' claim for tuition reimbursement. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Likewise, “a private placement need not provide . . an IEP for the disabled student,” Frank G., 459 F.3d at 364, The appropriateness of a unilateral placement is determined by whether it “provide[d] education instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 115 (citation omitted).

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). An appropriate special education program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives, when applicable, related to those needs, and provides for the use of appropriate special education services. The Second Circuit has held that an “IEP must be reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997 “[T]his standard contemplates more than ‘mere trivial advancement.’” Id. at 1121. 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); 28 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 this unique set of facts and circumstances, the DOE CPSE did not meet . before the parents filed their impartial hearing complaint so there are no DOE evaluations or IEP’s in evidence. In their closing statement, the parents contend that the DOE had a duty to develop a new IEP for Ava and to provide interim services for her based on Ava’s Hoboken IEP until a new IEP was developed. (Ex. KK at 4) They cite 8 NYCRR §200.4(e)(8)(ii) that states that:

[i]n the case of a student with a disability who transfers school districts within the same school year, who enrolls in a new school district and who has an IEP that was in effect in another State, the public school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district conducts an evaluation pursuant to this section, if determined to be necessary by such school district, and develops a new IEP, if appropriate, that is consistent with Federal and State law and regulation. (emphasis added) First, the parents admitted that they did not share IEP with the New York City DOE, so they could not have expected the DOE to implement it. They did not even inform the DOE had been identified as a preschool child with a disability . Second, moved to New York City over the summer rather than “within the same school year” and there is no evidence that she had extended school year on IEP that was from the previous school year. Third, the IEP was not “in effect” because the parents unilaterally placed so the Hoboken School District was not implementing it. For all of these reasons, I find that the DOE had no obligation to implement IEP.

The parents also contend that the DOE failed to comply with the “Child Find” obligations of the IDEA. The IDEA places an affirmative duty on states and school districts to identify, locate, and evaluate children with disabilities who reside in the state.

(3) Child find

(A) In general

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

20 U.S.C. §1412(a)(3)(A)

See also 34 C.F.R. § 300.111(a)(1); New York State Commissioner of Education Regulation Section 200.2(a)(7) It is long-established that the “Child Find” provisions impose an affirmative duty on school districts to identify, locate and evaluate all children suspected of having a disability, including those in private schools. Letter to Lane, 16 EHLR 959 (OSERS, 1990). The obligation applies to children who reside in the state rather than children who attend school in the state. New York Education Law §3202; See also Longwood Cent. Sch. Dist. v. Springs Union Free Sch. Dist., 1 N.Y.3d 385, 774 (2004), and Bd. of Educ. v. Greek Archdiocese Inst. of St. Basil, 75 A.D.3d 569, 905 N.Y.S.2d 271, 274 (2010).

The question in this impartial hearing is whether the parents’ August 15, 2012 letter to the DOE triggered the “Child Find” obligations even though the parents did not reside in New York City for another five days. The DOE claims that on August 15, 2012, it had no obligation . because her parents were residents . The “Child Find” provisions of the IDEA relate only to children who reside in the family resided in New Jersey on August 15, 2012.

The DOE partially relies on the DOE Chancellors Regulations:

“Pursuant to the Chancellors Regulations, the DOE only has an obligation to open a referral and assess a student who is a legal resident of the school district. Section

200.4(2)(ii) specifically states that the initial referral must be made to the district where the student legally resides. In this case, the parents faxed a letter to the NYC Dept. of Education Region 9 on August 15, 2013. Parent’s Ex. C. The letter stated that the family was moving to New York City on August 20, 2012. Id. Because the August 15, 2012 letter specifically stated that the student was not a legal resident of New York City, that letter does not constitute an initial referral pursuant to the Chancellors Regulations.“2

(Ex. 6, DOE Closing Statement)

The Chancellor’s Regulations are internal school district policies and procedures rather than law. They are not instructive or persuasive in legal matters.

The wording of the August 15, 2012 letter clearly indicates that the parents were not residents of New York City on that date despite their plan to move to New York City.

Plans can change. I find that the August 15, 2012 letter did not trigger the DOE’s “Child Find” obligations because the family did not reside in New York City on August 15, 2012. Although best practice suggests that a school district should respond to such a letter with a later phone call or letter to find out whether the family did, or did not, actually move within the school district, there is no law to establish that the DOE was obligated to do so.

The parents further claim that “At the very latest, the DOE’s timeline to respond

August 15, 2012 letter began on August 20, 2012.” (Ex. KK at 3) This makes no sense as the DOE could not have known that the family actually moved to New York City on August 20, 2012 unless the parents informed the DOE of that fact. The parents admit that they took no further steps to contact the DOE until October 31, 2012 and that was more than two months after they actually moved to New York City.

Citation corrected to Section 200.4(a)(8) in a subsequent email.

I find that the parents did not refer to special education in the DOE until their second letter dated October 31, 2012. This letter served as an initial referral to the DOE CPSE in accordance with New York State Commissioner of Education Regulation Section 200.4(a)(1)(i). The parents faxed the letter to the DOE on October 31, 2012 and that is the date of receipt under Section 200.4(a)(3). (Ex. B at 2,3) The DOE had thirty days to obtain consent to evaluate or document its attempts to obtain consent according to Section 200.4(a)(8). The DOE issued the Consent for Initial Evaluation form on December 13, 2012, and the parents signed it on December 18, 2012. (Ex. 3) Whether there were procedural violations after November 30, 2012 that led to a substantive denial of FAPE is a question outside my jurisdiction in this impartial hearing.

SECOND CRITERION

Having found that the New York City Department of Education was not yet obligated to offer a “free and appropriate public education” (FAPE) to Ava K. when the parents filed the impartial hearing complaint, I do not have to consider the second or third criterion. See Application of a Child with a Disability, Appeal No. 02-092; and Application of a Child with a Disability, Appeal No. 05-038 citing Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 at

134. I will consider the second and third criteria to complete the record in this matter.

With respect to the second criterion of a Burlington/Carter analysis, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85. "The standards for determining whether a private school placement is 'appropriate' under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement." A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits . . . but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . . “

Gagliardo, 489 F.3d at 112

The IDEA’s “least restrictive environment” (LRE) mandate requires that school districts educate children with disabilities with their non-disabled peers to the maximum extent appropriate. 20 U.S.C. 1412(a)(5), New York Commissioner of Education Regulation Section 200.1(cc), P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 120 (2d Cir. 2008) (citing Oberti v. Board of Educ., 995 F.2d 1204, 1217-1218 (3d Cir. 1993))

“. . . because mainstreaming may be a factor in deciding the appropriateness of a private placement, and because the test is designed to help courts decide whether a placement is the least restrictive environment, the above factors may be useful in determining the overall appropriateness of the parental placement.”

Weaver, ex. rel. J.W. v. Millbrook Central School District, 57 IDELR 126

(S.D.N.Y., 2011)

While parents are not held to as strict a standard of placement in the LRE as school districts, the restrictiveness of the parental placement may be a factor considered in determining entitlement to an award of tuition reimbursement. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998] See also M.S. v. Board of Education of the City School District of the City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000), cert. denied 532 U.S. 942 (2001); C.L. v. Scarsdale Union Free Sch. Dist., 2012 WL 983371 (S.D.N.Y. Mar. 22, 2012).

In the instant matter, the parents placed . provides an extended school day of one-to-one support in a comprehensive special education environment designed for students with . is an appropriate school the 2012 – 2013 school year. By September 2012, preschool class at had her with only two other students in a class with a ratio of more than one adult to each child. This is a very highly restrictive placement, and there is no evidence that she needed such a restrictive placement.

The report on . made a number of recommendations for her, but it did not suggest a class size for her. (Ex. F at 8-9) The fact made progress in a previous class of five students establishes that she is able to be in a larger class even though it also had more than a one-to-one teacher to student ratio. (Tr. 262-3) Furthermore, although she needs frequent redirection, that does not mean that it must be from a teacher rather than a trained paraprofessional. The parents did not establish needs such a restrictive placement.

LRE is only one factor to consider in the appropriateness of a unilateral placement. Based upon the record before me, I find that the parents carried their burden to establish that was an appropriate placement for the 2012 – 2013 school year.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. Again, I will consider the equity issues in this matter to complete the record in this case. There are three important issues of equity in this impartial hearing.

First, the parents sent the August 15, 2012 one-paragraph letter to the DOE with minimal information, and then they “waited it out”. They did nothing when they actually moved to New York City. They did not contact the DOE again until they believed that they were past the timeline for an evaluation, and then the contact was to obtain reimbursement for I find that this was a form of unethical parental gamesmanship.

Second, tuition reimbursement may be reduced or denied if parents fail to provide the school district with timely notice of their intent to place their child in a private school at public expense. 20 U.S.C. §1412(a)(10)(C)(iii); 34 C.F.R. §300.403(d). In this matter, there was no notice. The parents started paying tuition for for the 2012 – 2013 school year in April 2012 and placed her there again in early July before they even considered moving to New York City. The August 15, 2012 letter cannot be considered notice of their intention to place and seek reimbursement from the DOE because the letter does not even mention or any other school or reimbursement. I find that the parents did not give notice to the New York City DOE.

Third, an impartial hearing officer has authority to award “reasonable” reimbursement. The preschool tuition the 2012 – 2013 school was initially $125,000. in an initial contract. then sent a second contract for the same dates for $137,500. Not only is the second tuition rate unreasonable, but the change in rate establishes that ’s tuition rates are arbitrary. Desperate loving parents may be willing to pay these fees for a special education preschool, but both amounts are arbitrary and unreasonable.

For these three reasons, I find that equity does not support the parents’ claim for reimbursement for for 2012 – 2013 school year.

SUMMARY AND CONCLUSION

On the first criterion, the Department of Education had no obligation to offer a FAPE . for the 2012 - 2013 school year until after the parents initiated this impartial hearing. The parents triggered the “Child Find” obligation on October 31, 2012. On the second criterion, the parents carried their burden to establish that the is an appropriate placement for the 2012 – 2013 school year. On the third criterion, equity does not favor the parents’ claim for reimbursement.

ORDER

There is no order. Dated: May 1, 2013

________________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer BE;mv

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

PARENTS

A Demand for due process, 11/30/12, 8 pages B Letter to School District, 10/31/12, 3 pages C Letter to District, 8/15/12, 3 pages D Contract with 8/10/12 E Behavior reduction plan, 7/16/12, 3 pages F diagnosis, dated 12/12/11 and 1/9/12, 9 pages G Affidavit from , dated 1/23/13, 1 page H progress report, June 2012 I Weill-Cornell evaluation, dated 11/30/11, 1 page J Apartment lease, dated 7/28/12, 28 pages K Letter regarding apartment possession, dated 1/23/13, 1 page L Omit M Con-Edison bill, dated 9/19/12, 1 page N Consent for evaluation, 12/18/12, 1 page O Con-Edison billing history, various Dates, 1 page P Check from parents, 9/7/12 through dated 12/31/12, 5 pages Q Proof of payment, April 2011 to November 2012, 3 pages R Proof of payment, S W-2 with earnings, 1 page T Envelope from New York State Dept. of Labor, 1/30/13, 1 page U Attendance record, dated 2012/2013, 1 page V Educational progress Report, 6/8/12, 7 pages W IEP goals, June 312012, 5 pages X IEP, 7/16/12, 30 pages Y and language Test results, May 2012, 1 page Z OT evaluation report, June 2012, 6 pages BB IEP goals, June 2012, 5 pages CC 2012/2013 daily schedule, undated, 1 page DD Omitted EE Evaluation Planning Meeting Summary, , 5 pages FF Confidential Behavior Observation From , 11/7/11, 4 pages GG Evaluation, 11/2011, 5 pages HH Progress Progress Report, , 12/12, 3 pages II Educational Progress Report, , 12/16/12, 7 pages JJ Occupational Therapy Report, January 2013, 5 pages KK Parents Closing Statement

DEPARTMENT OF EDUCATION

1 Due process complaint, dated 11/30/12, 7 pages 2 Paul Institute letter to CSE, dated 12/21/12, 1 page 3 Parent consent for evaluation, dated 12/18/12, 1 page 4 CSE meeting notice, dated 1/29/13, 1 page 5 Attendance record, dated 2012/2013, 1 page 6 DOE Closing Statement, dated April 16, 2013, 19 pages 7 Emails related to the subpoena, dated February 2013, 4 pages 8 subpoena, February 2013, 1 page 9 response, 2 pages, dated February 8, 2013 10 Interim decision: Subpoena, 6 pages, dated February 10, 2013

Footnotes

[1] “The Manual for Administrative Law Judges and Hearing Officers” is publically available online at: www.cs.ny.gov/pio/publications/manual_for_hearing_officers.pdf (page 197-200)