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: April 18, 2013

Actual Record Closed Date: April 18, 2013

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

Mother

School — Parents

This is New York City case # On April 18, 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. represented the parents and represented the Department of Education (DOE). A list of witnesses who testified and documents received into evidence is attached to this decision.

ISSUE

The sole issue before me is whether the parents are entitled to reimbursement of tuition for School ( ) for the 2012 – 2013 school year.

DOE’S POSITION

The DOE conceded that they did not offer a “free and appropriate public education” (FAPE) on prong one. (Tr. 6) The DOE did not put on a case in this impartial hearing. (Tr. 11) The DOE representative actually explained that she had another hearing scheduled at the same time, and she walked out of the hearing after the opening statements. (Tr. 11) No other DOE representative replaced her, and she did not return to this impartial hearing.

PARENTS POSITION

The parents believe that the School is an appropriate placement for , and that equity favors their claim for reimbursement.

STATEMENT OF FACTS

is a bright . When he is . (Tr. 40) He has been although his parents chose not . (Tr. 44-5) The Committee on Special Education (CSE) found him IDEA eligible as a student with “ ” (SI).

s parents placed him in there. is a general education private school that has two special educations programs. (Tr. 32) The program is for students who need support, and program is for students who have a higher level of special needs. (Tr. 31-2) The middle school has a total of one hundred nine students with seventeen of them in the program and twenty to twenty-five of them in the Program. (Tr. 17, 32) . attends the program.

The program provides students with small special education classes combined with inclusion classes. (Tr. 18; Ex. E) The small classes vary in size from five students to two teachers to fifteen students to one teacher. (Tr. 26-7) Certified special education teachers teach the small classes. (Tr. 34) The School builds “a layer of support” that allows for targeted support in a push-in service model rather than a pull-out model. (Tr. 19-20) There is a small group advisory time at the beginning and the end of each day to plan and organize assignments and materials. (Ex. E at 1) These supports are “seamlessly integrated” into the school program. (Tr. 19) is making educational and social progress in . (Tr. 35-6, 45-6; Ex. M) He has friends, and he has developed a new interest in sports. (Tr. 45)

The parents signed a contract with for the 2012 – 2013 school year on June 5, 2012. (Ex. D) Tuition is $25,400. and the parents use the FACTS payment plan that takes monthly payments from the Mother’s paycheck. (Ex. I, J; Tr. 43) The parents filed an impartial hearing complaint on February 7, 2013. (Ex. A)

CONCLUSIONS OF LAW

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)). 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).

The DOE conceded that it did not offer Emil a FAPE for the 2012 – 2013 school year.

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). 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 While parents are not held to as strict a standard of placement in the “least restrictive environment” (LRE) as school districts, the restrictiveness of the parental placement may be 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 Application of a Child with a Disability, Appeal No. 03-024; M.S. v. Board of Education of the City School District of the City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)

In the instant matter, the parents placed program at The program provides Emil with academic support and small classes with a special education teacher within a general education school where he has made friends. educational needs within the LRE. I find that is an appropriate placement for . 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. See Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 374 (1985) and M.C. v. Voluntown, 226 F.3d 60, 68 (2d Cir. 2000). "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(c)(iii) See Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402,

417-18 (S.D.N.Y. 2005)

The Mother attended the April 17, 2012 CSE meeting by telephone, and there is no evidence that she did not fully cooperate with the DOE. (Ex. B at 16) She filed proper notice of her rejection of the offered public. (Ex. L) The tuition is reasonable. I find that equity supports the parents’ claim for full tuition reimbursement.

SUMMARY AND CONCLUSION

On the first criterion, the Department of Education conceded. On the second criteria, the parents established that is an appropriate placement for the 2012 – 2013 school year, and equity favors their claim on the third criterion. The parents are the prevailing party.

ORDER

I order the DOE to reimburse the parents $25,400. Dated: April 23, 2013

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 Impartial Hearing Request, 2/7/13, 4 pages B IEP, 4/17/12, 16 pages C Final Notice of Recommendation, 6/16/12, 1 page D School Contract, dated 6/5/12, 2 pages E School Program Description, 2 pages F Class Schedule, 1 page G Attendance Report, 4/11/13, 1 page H Report Card, 4 pages I School Affidavit, 4/11/13, 1 page J FACTS Payment Statement, 2 pages K Notice Letter, 8/22/12, 3 pages L School Rejection Letter, 11/18/12, 2 pages M Progress Notes, 4/4/13, 3 pages

DEPARTMENT OF EDUCATION

None