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: August 22, 2014

Actual Record Closed Date: August 22, 2014

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2014

CSE District Representative — DOE

Procedural Background — DOE

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated March 24, 2014, I was appointed to hear this matter. On March 26, 2014, the Department of Education (DOE)’s challenge to the sufficiency of the complaint was upheld, and on April 4, 2014 the parent’s amended complaint was accepted as sufficient. Timely extensions were given. The hearing in chief was held on August 22, 2014.

The Parent represented herself and a District designee argued the District’s case. The parent submitted 4 exhibits, “A-D” and testified in support of her position. (List of Exhibits annexed hereto as “Attachment A”). Department Of Education’s Position

The Department of Education concedes that it did not offer the student a free and appropriate public education for the 2013-2014 school year. Parent’s Position

The parent asserts that the DOE failed to offer the student a free and appropriate public education (FAPE) for the 2013-2014 school year; (2) that is an appropriate placement for student; (3) that the equities in this case favor the parent, and (4) that due to the parents financial status, she is therefore entitled to direct payment for the cost of tuition at for the 2013-2014 school year.

Findings of Fact

The student who is classified . His classification is not in dispute. The parent testified that he graduated in June 2014 and will be attending college in January 2015. She testified that the student has been funded by the Department of Education since the 2010-2011school year and seeks an order directing the DOE to pay the student’s tuition directly to the school. The parent submitted copies of 2 prior settlements, an email from the DOE referencing a settlement for the student’s 2013-2014 school year and the invoice for the student’s tuition.

The parent’s evidence is persuasive to establish that the student has been funded by the DOE since the 2010-2011 school year and further, that in light of the parent’s testimony , the student made meaningful educational progress while attending the . Conclusion

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 20001 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were in adequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the child a FAPE (id.; see 20 U.S.C. § 1412[a] [10] [C] [ii]; 34 C.F.R. § 300.148).

The first step in analyzing a tuition reimbursement claim is to determine whether the district offered to provide a FAPE to the student (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). 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 through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).

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 ensure an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (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).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; 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).

The DOE has conceded that it did not offer the student “FAPE” and accordingly, the first prong of the parent’s request for tuition reimbursement, supports the parent.

The second inquiry to be determined is whether the services selected by the parents are appropriate. The relevant inquiry requires that a private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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]). 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. 7; 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 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 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; see Frank G., 459 F.3d at 364-65).

Under this analysis, I am persuaded that was an appropriate placement for the 2013-2014 school year.

The third inquiry to be addressed is whether equitable considerations support the awarding of tuition. There was no evidence that the parent interfered with the evaluation or placement of the student. Accordingly, I find that equities support the parent’s position.

The parent’s testimony and documentary evidence supports her claim that she does and await reimbursement from the district. With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . .parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769F. Supp. 2d at 428; see also A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11[S.D.N.Y. Sept. 23, 2013]). The relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private nonapproved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and held that, in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs ( ., 769 F. Supp.2d at 430).

The parent’s testimony that she does not have the financial ability to pay the tuition is persuasive to support her request for direct payment to the school. Order: The DOE shall directly pay the student’s tuition for the 2013-2014 school year in the within 30 days of receipt of the invoice and proof of attendance. Dated: August 25, 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

PARENT

A. Settlement dated 2013 7 pages

B. Settlement dated 2011 7 pages

C. Email dated July 7, 2014 1 page

D. Invoice for tuition dated May 27, 2014 1 page