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

Date of Hearing: June 6, 2014

July 14, 2014

Actual Record Closed Date: August 8, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2014

Mother of Student Parents

Esq..Attorney Associated with the Law Office of. Attorneys for Parent Parents

Head Teacher at the Parents

Co-Director of the Parents

District and New York City Department of Education

Representative Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 14, 2014

Mother of Student Parents

Esq..Attorney Associated with the Law Office of. Attorneys for Parent Parents

District and New York City Department of Education

Representative Department of Education

The . (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, on June 6 2014 and July 14, 2014. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter, after the recusal by one or more previously-appointed Impartial Hearing Officers, by notification dated May 26, 2014. After the close of proceedings on July 14, 2014, I awaited the receipt of the Transcript of Proceedings. That Transcript arrived July 29, 2014. Thus, the Actual Record Close Date was July 29, 2014.

The proceeding was initiated by Parents by the filing by , on behalf of Parents, of a Due Process Complaint Notice, dated January 23, 2014, and received by the New York City Department of Education’s Impartial Hearing Office on that date. Parents allege in that Complaint that District and its Committee on Special Education (C.S.E.) failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year, in that it failed both procedurally and substantively to provide Student was a free, appropriate public education (FAPE) for 2013-2014 school years. In light of such alleged failure, Parents unilaterally placed Student at for the 2013-2014 school year. Parents sought, in their Due Process Complaint, an Order requiring the New York City Department of Education and District to reimburse Parents for the costs incurred by them for the unilateral placement of Student at such facility for 2013-2014 school year.

Student is presently thirteen years seven months of age, having been born on December 29, 2000. According to the information contained and Educational Assessment performed on various dates in August of 2011, when Student was ten years of age (Exhibit H), it was reported that Student had initially been as Student was displaying In the evaluation of August 2011, it was skills were deficient, but his expressive language skills were less so. Student was assessed utilizing the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV). Student achieved a Full Scale IQ of with a Verbal Comprehension Index of Perceptual Reasoning Index of a Working memory Index a Processing Speed Index of At some time during the 2012-2013 school year, District’s Committee on Special Education (C.S.E.) convened to conduct an Annual Review and plan Student’s special education program for the 2013-2014 school year. I have gathered from correspondence sent by Parent to the C.S.E (Exhibits B and C), that the Committee had recommended that Student be afforded his educational program in an Integrated Co-Teaching class - a placement Parent deemed unacceptable and inappropriate. It also appears from that correspondence that Student was attending the during the 2012-2013 school year. On January 31, 2013, Parents entered into an Enrollment Contract with the Mary McDowell Friends School for Student’s attendance at that facility for the 2013-2014 school year (Exhibit I), paying the required non-refundable deposit of Eight Thousand ($8,000.00) Dollars on that date and agreeing to pay an additional Forty-Three Thousand Three Hundred Ninety ($43,390) Dollars at a later date. In this proceeding, as noted, Parents seek reimbursement for such sums.

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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). In its decision, 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)

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, Parents’ entitlement 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 educational facility for which Parents seek reimbursement. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the requested facility, Parents’ request for relief must be denied. If the requested educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents. 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 the equitable relief sought by Parent in this proceeding 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 IDEA's 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 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). 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 the appropriateness of the program offered to Student (N.Y.S. Education Law§4404(1)(c)). Normally, I would, at this juncture, examine District’s program to determine whether it had offered Student a free, appropriate public education (FAPE). However, in this proceeding, District conceded that it had failed to offer Student a free, appropriate public education for the 2013-2014 school year, rendering such inquiry unnecessary.

Having made such determination, it is then necessary that I examine the program unilaterally selected by Parents for Student at for the 2013-2014 school year in order to determine if such unilaterally-selected program was appropriate for Student. In conducting that review, I have been somewhat guided by the decision rendered by the State Review Officer in Application of the XXXXXXXXX , Appeal No. 13-198, wherein it was stated that:

“A private school placement must be "proper under the Act" for parents to be entitled to public funding (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), that is, the private school must offer an educational program which meets the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000], abrogated on other grounds by Schaffer v. Weast, 546 U.S. 49, 57-58 [2005]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided the special education services specifically needed by the student]; Frank G., 459 F.3d.

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. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).”

However, in order to determine whether the unilaterally-selected program is capable of reasonably serving Student’s individual needs, it is elemental that the record provides information as to what Student’s individual needs are. Unfortunately, the Record before me is very limited in providing such information. Also, in making that determination, I specifically reject the opinion expressed elsewhere in the decision of the State Review Officer in Application of XXXXXXXXX, Appeal No 13-198, where it was stated that:

“In this case, an examination of the district’s challenge to the appropriateness of the student’s placement typically involve a review of the evaluative information and assessments of the student that were available to the CSE at the time the CSE developed the student’s IEP for the 2012-2013 school year. However, not only did the district concede that it did not offer the student a FAPE for the 2012-2013 school year, the district also chose not to enter into the hearing record any evaluative information on or assessment from the student’s records at all, thus abandoning its foremost opportunity to put forth its o9wn viewpoint of the student’s special education needs and the extent to which the unilateral placement either addressed or failed to address those needs. Accordingly, to the extent the reports and assessments relied in developing the student’s educational program were not sufficiently accurate or complete for the purpose of determining the student’s needs, the responsibility for such deficiency lies with the district and not the parents (with citations)”.

The clear language of Education Law §4404(1)(c) places the burden of establishing the appropriateness of the unilaterally-selected program solely on Parent. Parent has both the burden of persuasion and the burden of production. I find that it is inappropriate to place the burden of production upon District or to find it culpable should it fail to produce such records, evaluations or assessments sufficient to satisfy Parent’s singular burden. Moreover, it is clear from Parent’s testimony that District’s C.S.E. did, in fact, prepare an I.E.P. for Student for the 2013-2014 school year – presumably containing relevant information regarding Student’s Present Levels of Performance, Social/Emotional and Management needs. Nothing precluded Parent from placing that I.E.P. into evidence. Further, Parent testified that the Committee also had looked at a neuropsychological evaluation that Parent had obtained in August of 2011 – one that, Parent stated, concluded that Student needed to be in a smaller classroom (T.R.92). Again, while such could have been placed in evidence by Parent, it was not.

I have, however, the information regarding Student’s special education needs as discussed in and Educational Assessment (Exhibit H), which, although stale, contains sufficient information that had described Student’s deficits at the age of six and were still extant four years later – and presumably continue. I also have relied on the testimony of , who was Student’s homeroom teacher and History Teacher at the 2013-2104 school year (T.R.19) to determine Student’s needs. stated that was a weakness for Student, especially in processing new vocabulary (T.R.20-21). Student also encounters difficulties, according , in keeping up with the pace of instruction (T.R.21). Again, according to , Student’s Reading Skills are labored (T.R/21) and Student decodes at a relatively slow pace (T.R.21). Further, Student’s writing ability, while having improved tremendously during the 2013-2014 school year, remains, according to , a laborious task (T.R. 21) Similarly, Student’s – far below Student’s written expression level, Student was, during the 2013-2014 school year, in at the School. According to , the program affords Student his educational program in a small class containing eleven students, taught by a Head Teacher and an Assistant Teacher (T.R.19). While was Student’s Homeroom and History Teacher, he was familiar with Student’s program in the remaining academic areas, so as to state that Student made progress in all areas. The program employed the breaking down of materials, scaffolding, adjusting the pace of instruction and employing simplified language throughout the school day (T.R. 24).

Parent provided little information in her testimony regarding Student’s needs or deficits, noting that, during the Committee meeting that prepared Student’s special education program, she relied on the input from to describe Student’s deficits.(T.R.89). Parent did note that, while Student’s classes had twelve students, when in Reading or Math, he was in a group of four or five students (T.R.100). My review of Student’s Trimester Report (Exhibit D), confirms that Student is benefiting from the program afforded to him at the marks that are all in the 90’s, with many references to Student’s commitment to hard work and preparation (Exhibit D).

I find that Parents have established that Student had certain needs and deficits which, through unilateral placement at was able to advance due to a program that was reasonable calculated to enable Student to receive educational benefit.

Having reached such determination, it is necessary that I move to a consideration of whether equitable considerations warrant an award of tuition reimbursement to Parent for the unilateral placement of Student at for the 2013-2014 school year. Parent testified that she had attended the Committee meeting conducted to plan for Student’s educational program, had been provided a Final Notice of Recommendation advising Parent of the public school placement that District was offering; advised the Committee by correspondence dated July 22, 2013 (Exhibit B) that the recommended placement was closed for the summer, so that Parent could not visit it (noting that the Committee meeting had been conducted in March, so that an earlier notification would have afforded Parent the opportunity to visit it before the closing of the school year); went to visit that placement when available in September; and conveyed to the Committee, by correspondence dated September 18, 2013 (Exhibit C), that such recommendation was unacceptable.

Parent testified that, had an appropriate program been offered by District to Student for the 2013-2014 school year, Parent would have accepted such and moved Student (T.R.98). Parent also testified that, although she had signed an Enrollment Contract in January of 2013, she had also taken out insurance so that, were a public school found that could meet Student’s needs, she would be protected (Exhibit I) (T.R.97). Parent also noted the refund provisions of the Contract were a public school placement found by September 1, 2013 (Exhibit I) (T.R.99-100).

It is my finding and determination that Equitable Considerations favor an award of tuition reimbursement to Parents for their unilateral placement of Student at the , for the 2013-2014 school year. The tuition at the for Student’s attendance at that facility for the 2013-2014 school year was in the amount of Fifty-One Thousand Three Hundred Ninety ($51,390.00) Dollars. I find such tuition reasonable. I therefore find that Parents are entitled to receive from District and the New York City Department of Education reimbursement in the amount of Fifty-One Thousand Three Hundred Ninety ($51,390.00) Dollars for Student’s attendance at the Mary McDowell Friends School during the 2013-2014 school year.

ORDER

Based upon the above review, it is HEREBY ORDERED that District and the New York City Department of Education pay to Parents as reimbursement for Student’s during the 2013-2014 school year, the sum of Fifty-One Thousand Three Hundred Ninety ($51,390.00) Dollars.

Dated: August 12, 2014

James P. Walsh, Esq. gc

JAMES P. WALSH, 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 RECORD ON JUNE 6, 2014

No : # of pages Description: Offered by:

A 2 Parents’ Due Process Complaint Notice, Parents dated 1-23-14

B 3 Letter from Parent to of C.S.E., Parents dated 7-22-13

C 4 Letter from Parent to D. Benati of C.S.E., Parents dated 9-18-13 (3); Fax Confirmation (1)

D 4 Student’s First Trimester Report Parents

E 1 Student’s Attendance Report from the Parents from 9-2013 through 3-2014

F 1 Student’s Class Schedule Parents

G 4 Parent’s Letter to C.S.E., dated 4-16-12 (1); Parents Copy of letter from C.S.E. to Parent, Undated (1); Fax Confirmation, dated 4-16-12 (1); Fax Confirmation, dated 4-16-12 (1)

H 29 Evaluation Report by Parents , Ph.D. and , Ph.D., dated 10-20-11 (21); Addendum of Tests administered (8)

I 2 Enrollment Contract between Parents and Parents , dated 1-31-13

J 1 Affidavit by , sworn to on 1-15-14 Parents

K 3 Copies of Checks from Parent to the Parents , dated 1-31-13; 6-15-13; and 11-19-13