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: September 12, 2014

Actual Record Closed Date: September 25, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 12, 2014

Name Relationship On Behalf of

Mother of Student — Parents

Father of Student — Parents

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

Ph.D. Director – - (by phone) — Parents

District and the New York City Department of Education Representative — 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 (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on September 12, 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 on April18, 2014. The Record Close Date was September 25, 2014

This proceeding was initiated by Parents by the filing by Parents’ attorneys, the Law Offices of a Due Process Complaint Notice, dated April 16, 2014 and received by the New York City Department of Education’s Impartial Hearing Office on April 17, 2014 (Exhibit A). Parents alleged in their Due Process Complaint that District and the New York City Department of Education had failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year. As a consequence thereof, Parents unilaterally enrolled Student School. In this proceeding, Parents seek to compel District and the New York City Department of Education to reimburse them for the costs incurred by them for such unilateral placement.

Student is Individualized Education Program (I.E.P.) for the 2013-2014 school year on May 29, 2013 (Exhibit A), Student was concluding ,a established by the Department of Education (T.R.71). According to the Report of a performed on June 17, 2011; June 27, 2011 and September 9, 2011by , Ph.D. (Exhibit C), through the administration , placing Student in ; a of Student Student in (Exhibit 4). The Report noted, however, certain areas in which Student , notably in areas of related to . challenges (Exhibit C). The Report noted that Student, who, at the time of the placed in a small, supportive educational environment with small class size and support (Exhibit C).

Parent testified that Student was placed at for the 2012-2013 school year, but that, while Student did well in that placement, the staff at that School, as well as Student’s that Student needed a more challenging environment (T.R.72). According to the further testimony of Parent, the C.S.E. convened sometime in May to prepare its recommendation for Student’s special education program for the 2013-2014 school year, at which the Committee recommended placement in an (T.R.73-74). Parent, a few days later, wrote to the Committee Chair, noting disagreement with the proposed placement, and requesting another C.S.E. Review to consider documents from Student’s Therapist and psychiatrist (Exhibit D). The letter requesting another Review, as well as follow-up letters sent by Parent to the Committee Chair (Exhibits E and F), went unanswered. Parent further testified that at no time did the District offer a specific placement to Student (T.R.77). By correspondence sent by Parents’ attorneys to the Committee Chair, dated August 23, 2013, the District was advised that Parents intended to for the 2013-2014 school year (Exhibit B). In this proceeding, Parents seek to have District and the New York City Department of Education ordered to reimburse Parents for the costs incurred by them in the unilateral; placement of Student in

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); Application 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’ ‘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’ 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 facility, Parent’ request for relief must be denied. If the unilaterally-selected 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 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 Committee on Special Education (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 37071; 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). However, in this proceeding, District’s Representative appeared at the hearing on September 12, 2014 and reiterated a request that had been previously made by District that the hearing be adjourned because the matter had been referred for settlement. That request, originally made on September 10, 2014 (I.H.O. Exhibit I) had been denied. Parents’ attorney noted for the Record (T.R.7-8) that Parents’ Due Process Complaint had originally been filed on September 10, 2013, but was withdrawn because of settlement discussions with the Department’s . However, after settlement discussions had broken down, Parents refiled their Due Process Complaint on April 23, 2014. Significantly, since the refilling, says Parents’ counsel, no discussions regarding settlement have taken place (T.R.8). On the date of hearing, District’s request on the Record for adjournment was again denied and, as District was unprepared to proceed, (T.R.15). Thus, it is my finding and determination that, per force, District has failed in its obligation to establish that it offered Student an appropriate public education for the 2013-2014 school year.

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 36465). 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)

Having made the determination that District has failed to establish that it had offered Student an appropriate education, it is now necessary that I examine the program unilaterally selected by Parents for . Testimony regarding the program offered by that educational facility was provided the Director of the School. Dr. as a small, progressive, independent with a student-centered approach to education (T.R. 26). high school that offers students a small class setting with individualization of instruction, often with intensive direct instruction, offered at an appropriate pace of learning and with intensive supports (T.R.27). It was noted that a number of student in the Program come with (T.R.28). There are approximately Student’s program, for instance, , had five students (T.R.40), while in Math, there were eight (T.R.45), and in English Education, a total of ten, but only three according a student’s program can be different from that offered to the other students in that class. Opportunities are available to the students in that the student is ready for such – while permitting the same student to receive the balance of her educational program in the smaller setting (T.R.27-28). that he was very familiar with Student and Student’s educational performance in the , having met with Student at least two to three times per week, for ten to thirty minutes, depending on the issue (T.R.30). was expansive in his description of how Student performed in class. However, he noted that Student and for which Student received Counseling (T.R.50-51).Student’s Report Card (Exhibit I), issued at the conclusion of the 2013-2014 school year, was outstanding, with Student single subject. However, according to the testimony of had need for the smaller class setting to work on her (T.R.31-32). When asked why a student with so high an attainment record would be in need of special education, was clear in specifying that her in (T.R.65-66). Also, it was noted that the provided Student with

It is my finding and determination that Parents have more than satisfied their obligation of establishing that the

It is also my finding and determination that there are no equitable factors that would impair Parents’ entitlement to reimbursement. Parents cooperated with the Committee on Special Education on all occasions, provided information regarding their conclusion that the proffered program was insufficient for Student, obtained and provided the Committee with documentation from Student unilaterally unless their concerns were addressed. If anything, equities lie against District, which did nothing in response.

Parents signed an Enrollment Contract placing Student at School for the 20132014 school year on May 15, 2013(Exhibit C). While the date on which Parents signed the Enrollment Contract preceded the date of the Committee meeting that recommended the placement with which Parents took umbrage, I will accept Parent’s testimony that Parents wished to be sure that they had for the coming school year (T.R.81). The Contract sets the cost of Dollars. I find such amount appropriate and reasonable. However, Parent testified that she was aware when Parents signed the Enrollment Contract that “I could move [Student] without any penalty except for the deposit of that would be okay”. (T.R.81). Thus, it is my determination that Parents’ deposit should not be included in any reimbursement to Parents, as such sum would have been lost to Parents in the event that the C.S.E. had proposed a placement for Student with which Parents could agree.

Therefore, it is my finding and determination Department of Education are required to reimburse Parents the sum partial payment of the tuition paid by Parents for their unilateral placement of Student in School for 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 reimburse Parents the in partial payment of the tuition paid by Parents for their unilateral placement of Student in the School for the 2013-2014 school year. Dated: September 29, 2014

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 SEPTEMBER 12, 2014

A. Parents’ Due Process Complaint Notice, dated 4-16-14 (4 pages; Parents)

B. Letter from Parents’ Attorneys – Notice of Intention to Unilaterally Place Student, dated 8-23-13 (3 pages; Parents)

C. Parents Evaluation by.., dated 9-9-11 (24 pages; Parents)

D. Letter from Parents to, dated 6-1-13, with enclosure (4 pages; Parents)

E. Letter from Parents to, dated 6-27-13, with enclosure (3 pages; Parents)

F. Letter from Parents to, dated 7-24-13, with enclosure (4 pages; Parents)

G. Enrollment Contract between Parents and, dated 5-15-13 (2 pages; Parents)

H. Student’s Class Schedule at Parents for the 2013-2014 School Year (1 page; Parents)

I. Student’s Report Card for Fourth Quarter of 2013-2014 School Year (3 pages; Parents)