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: Parents

Dates of Hearing: May 22, 2013

Actual Record Closed Date: August 18, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 22, 2013

Diana Gersten, Esq. Attorney — Parents

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2013

Diana Gersten, Esq. Attorney — Parents

Mother — Parents

Parents

DOE

On May 22, 2013 and July 31, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the of XXX (“the student”). His parents asserted that the DOE failed to provide a free appropriate public education for the 2012-2013 school year, unilaterally placed the student at a non public school and are seeking reimbursement from the DOE for that placement. (Ex. B)

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parents by correspondence dated January 25, 2013. (Ex. A) I was appointed Impartial Hearing Officer on January 28, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with representatives of the parties conducted on February 25, 2013, after the conclusion of the resolution period, the initial hearing was scheduled for April 4, 2013, the first mutually available date for the parties and the hearing officer. The April 4, 2013 hearing was thereafter adjourned at the request of the DOE, with no objection from the parents, due to the unavailability of DOE witnesses and the hearing was rescheduled for May 22, 2013 and June 12, 2013. The June 12, 2013 hearing was adjourned by me due to a medical emergency and that hearing thereafter rescheduled to July 31, 2013. (T. 4-5, 1819)

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and to enable Impartial Hearing Officer review of the transcript. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions and for consideration of those positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions with regard to the compliance date were provided to the parties. (T. 4-6, 18-20, 90, Ex. II)

The current compliance date is August 30, 2013. The record closed on August 18, 2013 upon my receipt of the final transcript.

CASES PRESENTED

A list of documents in evidence is appended.

The DOE presented no witnesses.

The parents presented the testimony of:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Findings of Fact

I find the testimony of the witnesses credible. Based upon that testimony, supported by the documents submitted, I find that the evidence establishes the following:

At the commencement of the 2012-2013 school year (10 month program) the student was old. (Ex. 1) He first received services at the age of

By letter dated August 22, 2013, the parents informed the CSE that the recommendation did not conform to the IEP and, further, that several attempts to contact the school to arrange a visit had been unsuccessful. The CSE was also told, among other things, that absent an appropriate program and placement recommendation, the student would attend (Ex. A) No response was received.

The parent thereafter made additional unsuccessful telephone calls to the school. After the commencement of the school year, she went to the location specified in the in the expectation of seeing its programs but the school was not there. Upon further investigation, she learned the school had moved several years previously to another location. (T. 97)

An enrollment contract with for the 2012-2013 school year had been executed by the parents on April 2, 2012, and specified that tuition was . (Ex. I) No recommendation or placement offer had yet been made by the CSE and the execution of the contract and payment of a deposit was required to hold a place for the student. (T. 105, 107-108, Ex.

I) The parents commenced making payments pursuant to the school’s mandated Schedule of Payments prior to receiving the FNR. (T. 106, Exs. C, D) The full tuition amount has since been paid. (T. 103, Ex. L) The parents would have considered a DOE placement had one been proposed before or after the contract was executed. (T. 102, 109)

B. Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prongs 1 and 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

Prong 1

The DOE has conceded that it did not provide a FAPE for the 2012-2013 school year. (T. 20)

Prong 2

When a public school system has failed to provide a FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with . Carter, 510 U.S. at 10. The student need . Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

The credible testimony and documentary evidence discussed above establishes that the school provided a program aligned with the student’s present levels of performance and identified management needs, serves students similar to this one and provides appropriate for this student and meets the Although progress is not determinative, it may be considered in determining whether a school is appropriate. Gagliardo. The evidence shows that the student has made progress in the program provided.

The district asserts several points in support of its claim that the program is not appropriate. (T. 114) With regard to the district’s claim that the assessments are subjective and that progress cannot be reliably measured, I find credible testimony concerning the rigor with which the assessments are made and find further support in the fact that almost all Regents’ exams were passed and in the remaining subject the student passed the RCT. Further, I credit the testimony as to how the courses are modified and that they are generally within a grade level of the specified grade, if such there is. (T. 3839 68-69, 71-72) The DOE also argues that the parents have failed to establish that the student’s OT and PT needs have been met. However, those needs do not appear to be substantial. I note the limited goals with regard to those areas in the IEP. (T. 84-85, 87, Ex. 1) Further, it is well established that the not every service necessary to maximize a student’s potential need be shown in determining the appropriateness of the parents’ placement. Appeal No. 11-017.

I find that the parents have met their burden to establish that the program they provided was specially designed to meet this needs, was appropriately supported by additional services and was reasonably calculated to provide meaningful educational benefits.

Prong 3

In the instant matter, the DOE does not assert that the parents failed to cooperate with the CSE in the development of the IEP and, further, I find that there is no evidence to support such a claim. The DOE’s assertion that the parent failed to cooperate with regard to a placement because they did not contact the person designated on the FNR lacks merit in the circumstances here in which the CSE was notified by mail of problems with the FNR and never responded. (T. 114) Ex. A) Indeed, no evidence has been presented that the school recommended provided any . Rather the evidence shows that the FNR did not in fact offer a placement and accordingly did not implement the IEP and, further, ignored the parents’ notification to it of that situation. (Ex. 3)

Similarly, I give no weight to the DOE assertion that the parents had no genuine desire to consider any public school program offered because they desired .

(T. 114-115) First I note that a parent’s preference for a private school and even the signing of a contract prior to an IEP review is not dispositive of a claim for DOE payment. Appeal No. 05-087. The parent testified that she would have considered a DOE placement notwithstanding the payments made and the contract. I find that testimony credible and note with regard to that testimony that the parent did not her testimony with regard to that issue although it could have been to her advantage to do so. In the circumstances here and weighing the equitable issues in this matter, I find no basis for a denial or limitation of DOE reimbursement.

ORDER

The DOE shall immediately reimburse the parents for tuition payments of for the student’s enrollment at for the 2012-2013 school year upon satisfactory evidence of payment and attendance.

Dated: August 30, 2013

_____________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

A. Day Notice, 8/22/12, 3 pgs. B Impartial Hearing Request, 1/25/13, 6 pgs. Parents C School Affidavit, 9/12-6/13, 1 pg. Parents D School Schedule of Payment, 2012-2013, 1 pg. Parents E FACTS Tuition, 2012-2013, 2 pgs. Parents F School Description of Program, 2012-2013, 1 pg. Parents G School Attendance, 2012-2013, 1 pg. Parents H Class Schedule, 2012-2013, 1 pg. Parents I School Enrollment Contract, 2012-2013, 1 g. Parents J 3rd Quarter Report Card, 2012-2013, 1 pg. Parents K Student Progress Report, 3/5/13, 4 pgs. Parents L Updated School Affidavit, 6/11/13 Parents M Updated Facts Tuition, 2012-2013, 2 pgs. Parents N Updated Attendance, 2012-2013, 1 pg. Parents O Final Report Card, 6/21/13, 1 pg. Parents P State Exam Summary, 6/20/13, 1 pg. Parents I Prehearing Conf. Memo Impartial Hearing Officer II Compliance Date Extension Decisions Impartial Hearing Officer III Subpoena Impartial Hearing Officer (10 pages; Parents)