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: June 4, 2014

Actual Record Closed Date: June 4, 2014

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2014

DR., — Parents

DR., — Parents

Attorney — Student

DR., Representative (Via Telephone) — Student

No Appearances — DOE

This is New York City case #150476. On June 4, 2014, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of S-P at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. represented the Parents.1 The Department of Education (DOE) did not send a representative to this impartial hearing. A list of witnesses who testified and documents received into evidence is attached to this decision.

PRELIMINARY MATTER - DEFAULT

The Parents filed a due process complaint on April 25, 2014, and they requested that I schedule a hearing right away to have a potential late spring date saved as it is difficult to find dates open in late spring. The DOE representative in this matter was:

Contact:

Telephone: (

Email:

The parties agreed to reserve the date of June 4, 2014 for the hearing should the resolution process be unsuccessful. On May 28, 2014, I received a motion to schedule and I scheduled the hearing for June 4 as already planned. There was no motion to adjourn the June 4, 2014 impartial hearing date at any time.

On Monday June 2, I sent an email to the parties to confirm that the hearing was going forward as scheduled, and that it had not been settled or withdrawn. I received an email from:

Email:

This was the first I knew was involved in this case in any way. She claimed that the case was not on her schedule so that the “CSE” was not available although she did not move for an adjournment. (Ex. IHO 1 at 1) I reminded her that the date had been selected weeks earlier, and that failure to appear can result in a default judgment. She responded:

The Parents were represented by Gary Mayerson, Esq. The transcript has an error in his name.

“I am not disagreeing with you, and I am fully aware of what happens when districts do not appear for hearings, in that is indeed your prerogative. All I am saying is that the matter never appeared on the IHS calendar, therefore, it was never formally scheduled for the district.

Have a nice day –

Jeannette” (Ex. IHO 2 at 1)

The impartial hearing was called for 10:00 am. We waited until 10:30 am. No one from the DOE appeared. I declared that it was a knowing default, and the Parents put on their unopposed case. I questioned the witnesses in order to complete the record and to clarify the record, especially as the DOE chose not to participate in this hearing.

Congress has provided a short timeline for impartial hearings pursuant to the IDEA. It would be unfair to parents to permit the DOE to delay justice by simply moving the case from representative to representative to representative.

ISSUES

The issues are whether the DOE FAPE for the 2013 – 2014 school year, is an appropriate placement for him, and whether equity favors the Parents claims.

THE PARENT’S POSITION

The parents believe that the Department of Education failed to offer a “free and appropriate public education” (FAPE) to S-P for the 2013 – 2014 school year. They contend that the is an appropriate placement for him, and that equity favors their request for reimbursement and prospective payment.

THE DEPARTMENT OF EDUCATION’S POSITION

The DOE did not communicate a position. Apparently , a third DOE representative, sent Mr. an answer to the complaint at 6:45 pm the night before this impartial hearing. (Tr. 14-5) As it was not offered into evidence in this impartial hearing, I did not review it.

FINDINGS OF FACT

old student who was adopted him when he was old. (Tr. 23; Ex. B at 1) His Parents are When first came to this country, he was . (Tr. 23-4) Despite and tutoring, . (Tr. 24)

“It's not uncommon for students

particularly overseas to have some

, that show up

differently as they develop in their ability to and to and to , well what we would think would be a typical way.” (Tr. 97)

where he repeated first grade. (Tr. 25) By had an independent evaluation for “learning difficulties” but the Parents believe that he was too young at the time to “make any judgment about although he was very was, you know, difficult to focus and was restless.” (Tr. 27) received pull out special education services while he (Tr. 26-7) At the time, he was not seeing thought that he was still adjusting to the foreign adoption and compensate for early deprivation. (Tr. 28-9) He has still never seen a psychiatrist.

(Tr. 80)

In fifth grade, the Parents , a structured private school for the second half of fifth grade, and kept him there through middle school.2 (Tr. 76-7) For high school, started at .

(Tr. 78) In the fall of 2013, due to his . (Ex. D) He did not “follow directions” and he was “very rude.” (Id.)

The DOE conducted a on November 7, 2013. (Ex. B) His teachers reported to the evaluator

“. . . around him. . . . The main problem is accept – he . He phases out some of – . Another teacher wrote that he is others or . . . . can be very polite . . . but then .” (Ex. B at 1)

On a WISC-IV, he achieved Verbal Comprehension, in Perceptual Reasoning, in Processing Speed, and in Working Memory. (Ex. B at 2) All of his academic scores are in the average to above average range. (Ex. B at 2- 4) This evaluation states had a , and that it “indicated and lack .”^[3] (Ex. B at 1)

The Department of Education Committee on Special Education (CSE) convened for on November 18, 2013. The Parents testified that at that time, at home, especially , and he was . (Tr. 31, 45) He behavior. (Tr. 62) In school, , and he would . (Tr. 32, 79; Ex. E) The November 18, 2013 CSE developed an IEP that reports projective psychological testing that is not in evidence in this impartial hearing; for example, “His three wishes are the following: help his family, be very successful, and help the world.” (Ex. E at 3) This IEP identified ’s management needs as “" needs a lot of emotional support to help him focus, do his work, learn to react appropriately in the classroom." The CSE classified ’s disability as “emotionally disturbed” (ED), and that classification is not an issue in this impartial hearing.

This IEP placed in a general education class with counseling in a group of five one time per week in a ten-month program. (Tr. 35-6, 39; Ex. E) There was no 12month service, and no behavior intervention plan. (Ex. E) The CSE did not consider summer services for although his behavior deteriorates after school breaks. (Tr. 39) was fifteen years old at the time, and this IEP only provides a rudimentary generic transition plan. (Ex. E at 7)

The November 18, 2013 CSE did not consider a day or residential therapeutic school for . (Ex. E at 10)

MR. As of the date of the IEP

meeting, were you concerned that had become

either a

DR. .: Yes. (Tr. 41)

DR. .: What we discussed was that he really had . So he

2 The Father referred to it as “ .”

was not aware the impact of his actions on others, as well as not taking any responsibility with his words or action. So that was really scary. And I mean, that you have really no--that he's unpredictable and his pattern of behavior showed that he could be aggressive and hostile.

MR. Did his teachers or the school district express concern about that danger?

DR. .: Yes.

MR. : Okay. So everybody at the table at the IEP meeting, as far as you could tell, was in agreement that he had the potential for dangerous behaviors.

DR. .: Yes.

MR. Okay. Did anyone from the school district suggest to you that you should consider a therapeutic residential setting for him?

DR. : No, that you know, we

discussed what can be done within the Department of Education and there was a consensus that there really was no program that would suit his needs. (Tr. 42) By December 2013, the Parents believed that posed a situation” but they did not hospitalize him or bring him for an assessment. (Tr. 54-5)

The Parents rejected this IEP, and they unilaterally placed at School ( ) on December 30, 2013. 4 (Tr. 56) They signed a contract with the private school on December 27, 2013. (Ex. F at 6) The Parents sent the DOE notice of their unilateral placement of on January 6, 2014 before they received the November 18, 2013 IEP but after they had . (Ex. G; Tr. 150) It was right after school reopened after the winter break.

is a private residential school , formerly School. (Ex. I; Tr. 126) Last year, the School expanded its programs and changed its name. (Tr. 126) The Parents chose because it was closer to home than other recommended schools so that they could visit . (Tr. 48) The School is for students between the ages of thirteen and twenty from ninth grade through the first year of college. (Tr. 85) They have at least average IQ with varied psychiatric diagnoses, eight to twelve students in a class. (Tr. 85, 125) uses IPAD’s, and it is moving toward more technology and less paper. (Tr. 123)

When entered Ph.D. psychologist there, conducted an initial evaluation of him. (Ex. I) Dr. Vogel reported that:

“ made a somewhat unusual presentation. While he appeared younger than his , his communication had what appeared to be . He spoke with an air of .

as he appeared . Emotions did not seem to be readily available to him . . . His thinking was not and . . . . ’s judgment has been guided by .” (Ex. I at 6)

Dr. suggested that see Dr. a part-time psychiatrist . Dr. is on the campus a few days per month, but he still has not seen yet. (Tr. 125, 132)

“ appears to which may be leaning towards the realm . His about himself and others are significant. An evaluation by Dr. is in order.” (Ex. I at 7)

has now been for six months, and the Parents have not taken any steps to have see Dr. or another psychiatrist. (Tr. 152) They have visited at , and they participated .

Upon admissions was “possibly depressed but certainly very angry and acting out on that anger in a variety of different settings.” (Tr. 92) He can be manipulative and deceptive. (Tr. 98)

provides:

“a gradient of structure and support so that it is and and then as we begin to ease up and adjust that level so that we to move into higher levels of independence and self

.” (Tr. 107)

was placed on the “safety” level which means that he required 24-hour staff supervision. He has now to function in a “regular” therapeutic school environment so that he is on the “discovery platform.” (Tr. 127) But he has not yet reached the “peer” level so that he still has certain restrictions. (Id.) have chores and work assignments to build a work ethic. (Tr. 116-7) developed a Comprehensive Service Plan for that includes his own goal (“to exit this facility”), his Parents goals for him, and an exit plan. (Ex. O)

conducted an ) on on February 17, 2014. (Ex. J) attends a sixteenweek anger management program , and he receives individual and group counseling there. (Tr. 61, 66-7, 100, 104-5; Ex. L at 2) provides a behavior system that includes positive and negative consequences involving the acquisition or loss of privileges based upon the student’s behavior. (Tr. 67, 115)

is making slow progress therapy and academics. (Tr. 121) He continues to struggle socially with peers. (Ex. L at 2) has had incidents with other students there. When another , asked him, “ ?” (Tr. 63) His peers confronted him on his comment. A summer break from school would permit as he needs . (Tr. 118)

closely monitors students’ academic progress with monthly grades in each subject. (Ex. N) Academically, has been consistently and while passing his

The Parent originally reported the date as December 29, 2013 on page 55 of the transcript. other courses. (Ex. N, Ex P at 1) His teacher reports that ’s and he is not , and his is similar. (Ex. P at 1) He has participated in a school play there. (Tr. 167)

CONCLUSIONS OF LAW

The DOE may be required to pay for educational services obtained for a student by his parents, if the services offered by the board 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).

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).

In the matter before me, the Department of Education knowingly defaulted. Even without the default, I find that the November 18, 2013 IEP provides with only one session of group counseling per week and large general education classes without a behavior plan, a summer program, or This is not sufficient supports and services. I find that the DOE did not carry its burden of proof that it provided a FAPE to for the 2013 – 2014 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).

In the instant matter, the parents placed , which is an unapproved private residential . provides small classes with like students who have average to above average cognition and emotional disturbance in a Regents program. provides individual and , , and a structured behavior system. Furthermore, collects data by conducting behavioral assessments. (Ex. J and K) Although is not passing as of April 2014, he is passing his other courses there.

I am concerned that Dr. used a five-axis DSM-IV diagnosis in January 2014 (Ex. I at 7; Tr. 135-7) DSM-V went into effect on January 1, 2014, and it does not use the five axis diagnostic format any longer. Furthermore, this document includes a rule out diagnosis, "rule out psychotic disorder NOS" when DSM-5 does not use rule out diagnoses or “not otherwise specified” (NOS) diagnoses. (Ex. L at 1; Tr. 139) It is concerning that Allynwood is using an outdated diagnostic criteria and format. It is also concerning that the Parents have not pursued the important statement that should be seen by a psychiatrist to consider whether he disorder.

The Second Circuit has established that the appropriateness of a unilateral educational placement in that it need not be perfect, need not meet all of the child’s special education needs, and need not even be in the child’s least restrictive environment. Furthermore, the unilateral placement need not offer the child an IEP or employ certified or licensed special education teachers. See Frank G., v. Hyde Park SD, 459 F.3d at 364 (SDNY, 2006). The unilateral placement need not have an IEP. See C.B. v. New York City Dept. of Educ., 2005 WL 1388964 (E.D.N.Y. 2005). In essence, “the test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Frank G., 459 F.3d at 364.

I find that the parents have carried their burden to establish is an appropriate placement for . for the 2013 – 2014 school year including the summer of 2014.

THIRD CRITERION

The third criterion on a Carter/Burlington analysis is whether equitable considerations support the parents’ claim. In this case, the Parents seek reimbursement of the amount they paid and retrospective direct payment of the outstanding balance pursuant to Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). The U.S. District Court for the Southern District of New York applied the reasoning and criteria of School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) to grant a request for retroactive direct payment when the parents established that they could not afford to pay the tuition. The remedial powers set forth in the IDEA are also applicable to impartial hearing officers in fashioning Burlington/Carter relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494, n.11 (2009)

In the matter before me, the Parents seek reimbursement for a unilateral residential placement. Residential placement is a highly restrictive placement that is appropriate under the IDEA 2004 when, as in this case, it is necessary for a student to benefit from his or her educational program. Mrs. B. v. Milford Bd of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997); Application of a Child with a Disability, Appeal No. 02-092

In this case, all documentary evidence and testimony establish that the Parents cooperated with the DOE. They attended the November 18, 2013 CSE meeting for , sent notice of their unilateral placement of at School at the end of the winter vacation. I find that equity favors the Parents.

The Parents have made partial payments, and they seek reimbursement and prospective payment of the remaining tuition. (Ex. Q) Both Parents are practicing physicians. The Father testified that he and his wife have a gross annual income of approximately $400,000. (Tr. 70) They have who also attend private school, but they that is now undergoing a $300,000. renovation. (Tr. 72-3) I find that the Parents are not eligible for prospective payments.

SUMMARY

The Department of Education did not carry its burden to establish that it offered a “free and appropriate public education” to for the 2013 - 2014 school year and the summer of 2014. The Parents established that is appropriate for under the Act. Equitable considerations favor the parents, although they are not eligible for prospective payment.

ORDER

I hereby order the Department of Education to reimburse the Parents payment for the from December 2013 to the end of the summer session 2014 upon presentation of the appropriate documentation of payment. Dated: June 13, 2014

Barbara J. Ebenstein, Esq. gc

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

PARENTS

A Due Process Demand dated 4/25/14, 11 pages B Report dated 11/7/13, four pages C New York City CSE Meeting Notice dated 11/14/13, one page D Alert dated 12/12/13, one page E New York City IEP dated 11/18/13, 11 pages F Enrollment Contract dated 12/27/13, 6 pages G Letter from Parents to dated 1/6/14, one page H Interpretive Report dated 1/7/14, 8 pages I Evaluation, dated 1/9/14, 8 pages J Assessment Report, dated 2/17/14, 11 pages K Engage Advisor Report, dated 5/21/14, 2 pages L Progress Update, dated 5/22/14, 3 pages M New York City DOE Report Card, dated 2013-2014, one page N Report Card, dated 2014, one page O Service Plan dated 1/22/14, 4 pages P Progress Update dated 5/29/14,^[2] pages Q Tuition Statement dated 5/31/14

DEPARTMENT OF EDUCATION

None

HEARING OFFICER

1 Emailed Correspondence with parties, 3 pages

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Footnotes

[3] This neuro-psychological evaluation and its findings were not offered in evidence in this impartial hearing.

[2] Emailed Correspondent with parties, 2 pages