New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 29, 2014

August 27, 2014

Actual Record Closed Date: September 14, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 29, 2014

Mother of Student		Parent
Attorney for Parent		Parent
Parent Advocate Associated with Attorney		Parent
Intern Associated with Attorney		Parent
, Ph.D.	District and Department of Education Representative; School Psychologist Assigned to C.S.E. (by phone)	DOE

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 27, 2014

Mother of Student		Parent
Attorney for Parent		Parent
Parent Advocate Associated with Attorney		Parent
Clinical Social Worker at (by phone)		Parent
, Ph.D.	District and Department of Education Representative; Intake Coordinator – (by phone)	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, 20 U.S.C. §1412 et seq. on July 29, 2014 and August 27, 2014 for hearings on the merits of Parents’ Due Process Complaint. The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter, after the recusal by one or more previously-appointed Impartial Hearing Officers, by notice dated February 10, 2014. The Record Close Date was September 14, 2014.

The proceeding was initiated by correspondence filed on behalf of Parent by Attorney , dated January 9, 2014 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The Due Process Complaint (I.H.O. Exhibit I), in its broadest reading, appears to allege that District’s Committee on Special Education failed to provide Student with appropriate recommendations for placements that could address Student’s needs. The Complaint seeks reimbursement to Parent of costs incurred by Parent in a privately-obtained evaluation, the unilateral placement by Parent of Student in a number of educational settings, transportation and other expenses.

Student was born on and is presently years of age. Student has, for most of her educational history, been placed by Parent in (T.R.251). During the 2012-2013 school year, Student attended the , where she completed . Student had been, at some point, determined by District’s Committee on Special Education, to be in need of special education services. During the 2012-2013 school year, while attending , Student was classified as having a and, pursuant to an Individualized Education Service Plan (IESP), had been afforded ( ) times per week (T.R.28). On June 17, 2013, District’s C.S.E. notified Parent that the Committee had met and prepared an IESP, continuing the at the for the 2012-2013 school year (Exhibit O at P.2). Parent wrote to the Committee on June 17, 2013, requesting that Student be re-evaluated – noting that Student was not progressing in her current program (Exhibit O at P.3). In that letter, Parent also advised that she had Student evaluated by a . That Evaluation (Exhibit 10) concluded with the recommendation that Student” be provided with a placement with a classroom (no more than students in a class) for children with and , where she can receive ( , , , ) in , , developing her skills and remediating her in and ”. Although Parent had the results of the evaluation, Parent, in her letter of June 17, 2013, clearly expressed her desire for further evaluations. District’s C.S.E. undertook to obtain an Educational Evaluation (Exhibit 6); an Updated Social History (Exhibit 7); and Vocational Assessments (Exhibits 8 and 9)., after which it scheduled another Committee meeting to consider Student’s program. Parent was advised that a meeting would be conducted on July 29, 2013 to discuss the results of the evaluations (Exhibit 2).

At on July 26, 2013, Student was admitted to following an (Exhibit L). Parent testified that she attended the scheduled C.S.E. meeting on June 29, 2013 and advised the Committee members of Student’s and that Student would thereafter be going to a (T.R. 225). Student was to the on June 30, 2014 (Exhibit L). Student was thereafter on August 8, 2013 (Exhibit H). Parent then placed Student at on August 8, 2013. According to the Summary prepared by , Student was referred to that by staff at (Exhibit I). The program at was briefly described as an program that utilizes the (Exhibit I at p.9). Student was the program on September 9, 2013 after which did not permit her continued involvement with that program. The Summary (Exhibit I) indicates that Parent had been referred to an Consultant in who made the recommendation that Student be placed at the , located in for continued treatment (Exhibit I). On the date of from , Parent entered into a Contract with (Exhibit M). Indeed, Student was the on September 9, 2013, the very day of her from . Student continues her placement at to date.

As previously noted, Parent, in this proceeding, seeks a determination requiring the District and the New York City Department of Education to reimburse Parent for the expenses Parent incurred in obtaining a Evaluation, as well as the expenses incurred for Student’s participation at (i.e., ); transportation (presumably from to and from to ); and for Student’s attendance t . Application is also made for reimbursement for attorney’s fees, the fee to the Consultant and others (I.H.O. Exhibit I).

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 Parent 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); A pplication 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 agency 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]). In both decisions, the Court noted that:

“Parents who unilaterally place a student in a private educational facility … do so at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements made thereafter 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) and even to retrospective tuition payment (Mr. and Mrs. A. v. New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Burden of Proof

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 , Parent’s request for relief must be denied. If the unilaterally-selected 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 rests upon District.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). It is stated that a FAPE is offered to a student when (a) a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the those procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, such statement is no longer exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors will render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

It has been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, 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, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). 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). It is this last requirement – that the IEP must be "reasonably calculated to provide some 'meaningful' benefit" - that will guide my review in this matter.

As noted, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). District presented the testimony of School Psychologist , who was assigned to the District’s C.S.E. and who had been involved in a number of Committee meetings where Student’s program needs were considered. Witness testified that she had not worked during the summer, but that the C.S.E. had been scheduled to convene on July 29, 2013 to review various evaluations that Parent had requested be done following Parent’s receipt of the results of a Evaluation that proposed placement. Witness further testified that, in a discussion with the Committee’s Social Worker, Parent had been advised that, in order to secure placement, the Committee would need a Evaluation of Student that either the Department of Education or Parent could secure (T.R.37). Witness indicated that Parent noted she had a in mind and would obtain the necessary report. However, thereafter, Parent had called to cancel the July 29, 2013 meeting because of Student’s (T.R.37-38). According to the testimony of Witness , the C.S.E. rescheduled the meeting for August 13, 2013, at which meeting Parent advised the Committee that Student would be in such program for to weeks (T.R.39). Witness explained that the Committee still could not move forward on Parent’s request for a program for Student without a Evaluation to substantiate the recommendation of and , in light of Student’s absence from , the Department was unable to perform such evaluation. Thus, according to Witness , the Committee simply reissued the IESP that had provided Student with that Student had received in her prior school year placement (Exhibit 1), but with the awareness that Student was in need of an appropriate program to address those concerns that had been expressed in the Evaluation (T.R.41).

A Evaluation was performed by Dr. at on September 16, 2013, which confirmed a , a , an ; ; ; and (Exhibit N at p.3). That evaluation was provided to the Committee, which then convened on September 30, 2014. On that date, after reviewing all evaluations, as well as reports from , the Committee made its recommendation that Student be classified as having an and recommended that Student receive her special education program in a having a staffing ratio of and deferred placement to the Central Based Support Team (CBST) to locate an appropriate capable of meeting Student’s needs (T.R.42).

The Record contains numerous documents attesting to the proffer of placements within , including ; ; ; ; and (Exhibit H). noted that it insisted upon an interview with Student present (Exhibit H at p.2). reported that Parent rejected its program as it was and that Student required an placement because of (Exhibit Hat p.3). reported that Parent attended the school tour but rejected the proffered placement for the same reason; i.e., that Parent preferred an program due to (Exhibit H at p.4).

Parent testified that she had also received letters from School and (presumably School) (T.R.229). Parent also testified that contacted her by letter in October of 2013, but that Parent had difficulty contacting its representative (T.R. 230). However, contact was eventually established and Parent visited the on December 6, 2013 (T.R.230). reported, by letter dated December 9, 2013 to the CBST, that it agreed to accept Student into its program. Thereafter, a meeting of the C.S.E. was conducted on January 27, 2014, at which were present Special Education Teacher ; Teacher ; District Representative and School Psychologist ; School Social Worker ; Parent Advocate and, by telephone from , , Chief Operating Officer; Intake Coordinator ; and , Guidance Counselor; and, by telephone from , , Academic Advisor; , Clinical Director; and , (Exhibit 5 at p.18) The Committee prepared in I.E.P. which continued Student’s classification as having an and recommended that Student receive her special education program in a School having a staffing ratio of , together with the Related Service of . According to the testimony of Witness , the School recommended was , located in .

District also presented the testimony of Witness , the Intake Coordinator at , who described the program offered by that and, stating that she was familiar with the deficits described in Student’s evaluations, stated that Student’s deficits were similar to those exhibited by other students in the program (T,.R.144-145).

The offers levels of program – . Witness stated that Student was programmed to be in the program. (T.R.146). The program offers students a minimum of per week, as well as family , , a daily . Students , with students residing in each . The program is , with a staffing ratio of staff to students (T.R.146), The offers an academic program each school day, with a staffing ratio (T.R.155), which begins at . and continues until ., with (T.R.149). The remainder of the day is spent with and the like (T.R.150). During cross-examination, Witness stated that percent of the enrollment is , with the remaining percent placed through school Committees on Special Education (T.R.161). Once accepted into the program, students are not (T.R.161). Students are not and buildings are equipped with and (T.R.162). Also, the high level of staff supervision minimizes any student (T.R.161). Witness stated that Parent had expressed her discomfort with the program at , as it was (T.R.169). The was, however, an school.

Parent presented the testimony of Parent, as well as the testimony, by phone, of of . However, the testimony of Ms. is relevant only if it becomes necessary to review the appropriateness of the unilaterallyselected placement by Parent of the . Parent’s testimony provided historical background, as well as information regarding Parent’s cooperation with the District’s C.S.E. and Parent’s visits to – and reasons for the rejection of – the placements proposed by the Department’s CBST (T.R.241-243). I have specifically reviewed Parent’s testimony regarding her visit to and the reasons why she found it an unacceptable placement for Student. While I appreciate her concerns, it is my finding and determination that such are insufficient to impact the sufficiency of the program such is able to afford Student. It is clear that Parent supports the program that provides to Student and the progress the reports Student to be making. Indeed, it is entirely possible that the program at is superior to that which can afford Student and that Student will prosper to a greater degree were Student permitted to remain at .

However, such is not the burden to which District and the Department of Education must be held. District has determined that Student requires a program to meet her deficits. Both parties concur. However, it is my finding and determination that placement of Student at is reasonably calculated to provide Student with meaningful educational benefit. Such can afford Student a program in an school – something Parent was keen on securing for her, with appropriate resources. I find Parent’s concerns with an are, at best, speculative.

It is, therefore, my finding and conclusion that District has successfully borne its burden of establishing that it offered Student a free, appropriate public education. Having made such determination, it is unnecessary that I review the appropriateness of Parent’s unilaterally-selected placement of the or of any of the placements, or of the equitable considerations that relate to reimbursement.

There remains, however, one issue raised by Parent in her Due Process Complaint (I.H.O Exhibit I) that should be addressed. Parent requested reimbursement for the cost of the Evaluation performed by Dr. (Exhibit 10). Dr. ’s Statement for such Evaluation was in the amount of ) Dollars (Exhibit U). According to the testimony of Witness , the last evaluation performed by the Department of Education was in 2008 (T.R.26). When asked specifically if Parent had ever made a request for a new , Witness stated that she did not know if such request had been made (T.R.26-27). However, there appears in the Record a Notice to Parent, dated April, 2012, that specifically states: “The Department of Education has received a referral from you requesting a re-evaluation of [Student]” (Exhibit O at p.1). District’s failure, for a period of over eight months, to perform such evaluation permitted the Parent, I find, to secure her own evaluation. This Parent did by contacting Dr. in February of 2013, who thereafter conducted the requested evaluation between April and May of 2013 (Exhibit 10). It is my finding and determination that Parent is entitled to be reimbursed the full cost to Parent of such evaluation.

Based upon the above review, it is HEREBY ORDERED that District and the New York City Department of Education reimburse Parent the full cost to Parent of such evaluation in the sum of ) Dollars; and it is FURTHER ORDERED that Parent’s Due Process Complaint in all other respects be, and the same hereby is, DISMISSED.

Dated: September 30, 2014

, ESQ.

Impartial Hearing Officer

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

No.: # of Pages Description: Offered by:

A. Letter to Parent from, dated 11-4-13 1 page

B. Report by, dated 7-26-13 1 page Parent

1. Student’s I.E.P. as prepared by District’s C.S.E. and dated 8-13-13 9 pages DOE

2. Notice of Re-evaluation Meeting to Parent, dated 9-3-13 1 page DOE

3. Student’s I.E.P. as prepared by District’s C.S.E. and dated 5-29-13 8 pages DOE

4. Student’s I.E.P. as prepared by District’s C.S.E. and dated 9-30-13 17 pages DOE

5. Student’s I.E.P. as prepared by District’s C.S.E. and dated 1-27-14 18 pages DOE

6. Educational Evaluation Report by School Psychologist, dated 7-10-13 2 pages DOE

7. Social History Update, dated 7-3-13 2 pages DOE

8. Vocational Interview – Student, dated 7-3-13 1 page DOE

9. Vocational Assessment – Guardian, dated 7-3-13 3 pages DOE

10. and Academic Evaluation, dated 6-1-13, by Dr., Ph.D. 17 pages DOE

11. Letter to Parent from, undated 2 pages DOE

12. Letter to C.S.E. from Parent, dated 9-7-13 1 page DOE

13. Parentally-placed Final Notice of Recommendation, dated 8-13-13 1 page DOE

14. Letters from Various Placements, dated various dates, regarding proposed placements 8 pages DOE

15. Letter from Parent to, dated 6-17-13 1 page DOE

DOCUMENTATION ENTERED INTO RECORD AUGUST 27, 2014

No.: # of Pages Description: Offered by:

C. Student’s I.E.P. as prepared by District’s C.S.E., dated 6-23-13 14 pages Parent

D. Teacher Report for Annual/Tri/Re-eval, by School 6 pages Parent

E. Student Transcript, dated 9-26-13 5 pages Parent

F. Transcript and Progress Reports 25 pages Parent

G. Health Report by, dated 11-14-12 2 pages Parent

H. Records, dated 7-30-13 37 pages Parent

I. Medical Records, dated 8-8-13 12 pages Parent

J. Admission Documents 22 pages Parent

K. Letter To Whom It May Concern, dated 8-9-13, by, 1 page Parent

L. Records, dated 7-30-13 108 pages Parent

M. Enrollment Documents, dated 9-9-13 29 pages Parent

N. letter To Whom It May Concern, undated, by (2); Evaluation of Student by, M.D., dated 9-16-13 (6); Report by, dated 6-23-14 (2); Blank (1); Report by, dated 6-23-13 (3); Copy of Exhibit B (1) 15 pages Parent

O. Series of Correspondences between Parent and District, of various dates 61 pages Parent

P. Correspondences to Parent and Program descriptions from Recommended Placements 20 pages Parent

Q. Invoices 10 pages Parent

R. Invoices 23 pages Parent

S. Invoices 4 pages Parent

T. Center Invoice, dated 8-25-13 1 page Parent

U. Dr. Invoices 8 pages Parent

16. Description of Program 4 pages DOE

I. Parent’s Due Process Compliant Notice, dated 1-9-14 (2); Fax Confirmation (1); Request for Due Process Proceedings Form, dated 1-9-14 4 pages IHO