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 13, 2013

August 15, 2013

November 20, 2013

January 24, 2014

Actual Record Closed Date: March 18, 2014

Hearing Officer: Israel S. Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 13, 2013

For the Parents:

Attorney (Via Telephone)

For the Department of Education:

Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 15, 2013

For the Parents:

Attorney (Via Telephone)

For the Department of Education:

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 20, 2013

For the Parents:

Attorney

parent

parent

For the Department of Education:

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 24, 2014

For the Parents:

Attorney

Parent

School (Via Telephone)

School

For the Department of Education:

Attorney

BACKGROUND AND POSITIONS OF THE PARTIES

On July 8, 2013, following recusal by another Impartial Hearing Officer (IHO), I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 794 in the matter of . I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: August 13, 2013 (prehearing conference), August 15, November 20, 2013 and January 24, 2014. Extensions of the compliance date were granted due to unavailability of witnesses as well as to allow time for receipt of the final transcript of January 24, 2013, time for preparation and receipt of the Closing briefs from the attorneys for both parties and time for this IHO to review the briefs and transcripts, so that I could render a decision referencing the complete records of this hearing.

This is a dispute with regard the unilateral placement of at the School for the 2013-14 school year. The parents also seek reimbursement for transportation costs to and from school as well as reimbursement for the costs of attendance at the School. The position of the parents is also that the equities favor the parents. It should be noted that parents’ position is that the three Burlington/Carter prongs [see below] are “the only ‘live’ issues remaining for adjudication…” IHO Exhibit II. The DOE has conceded Prong 1 of the Burllington/Carter factors, meaning that it has conceded that it has not provided a Free and Appropriate Education (FAPE) for . Nonetheless, the DOE’s position is that funding at should be denied as the DOE argues that this program does not adequately address needs. In addition, the position of the DOE is that even if this IHO determines that the DOE should fund attendance at , the parents have not demonstrated an adequate basis for reimbursing them for transportation costs and also that the DOE should not be held responsible for the costs of which are essentially supplementary programs, going beyond what a public school district is responsible to pay for. IHO Exhibit II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the United States Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only show 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.”

In R.B. and H.Z. on behalf of C.Z. v. New York City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a child.”

Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE. Looking at the facts here, there do not appear to have been any procedural inadequacies that would rise to the level of denial of FAPE.

Here, the DOE has conceded that it has not met its burden with regard to Prong 1. The key issues therefore are with regard to Prongs 2 and 3 of the Burlington/Carter test as accurately summarized by counsel for the parents in their closing document. Besides the issue of the funding of and school there are also the issues of whether the parents should be compensated for the transportation costs as well as for the costs of the two supplementary programs mentioned above.

According to the IEP developed by the DOE, is classified as having the of . The IEP needs as follows:

ORDER

Israel S. Wahrman, Esq. gc

ISRAEL S. WAHRMAN, ESQ.

Impartial Hearing Officer

ISW: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

A Demand for Due Process and fax confirmation, 6/27/13, 10 pages

B Findings of Facts and Decision by IHO Brenda Farrow White, Esq., 8/5/11, 16 pages

C Letter from Parents to School District with fax confirmation, 6/14/13, 2 pages

D NYCDOE Due Process Response, 7/5/13, 2 pages

E Letter from Parents to District Regarding Resolution Meeting with Fax Confirmation, 7/18/13, 2 pages

F Enrollment Contract for 2013-2014 School Year The School, 4/5/13 and 4/15/13, 3 pages

G Enrollment Contract for Summer 2013 The School, 5/24/13, 3 pages

H Notarized Affidavit The School, 8/6/13, 1 page

I Proof of Payment The School, 6/27/13, 1 pages

J Proof of payment for summer Program The School, 4/5/13

K The School Program Description, undated, 1 page

L The School Class Schedule, undated 1 page

M Daily Attendance Record The School, 7/2013 – 8/2013, 1 page

N The School, 1/1/13, 5 pages

O 6/20/13

P 6/2013, 3 pages

R , undated, 3 pages

S , undated, 4 pages

BB IEP dated 8/20/13, 30 pages

CC Final Notice of Recommendation (FNR), 8/20/13, 2 pages

DD NYC DOE Additional , 8/20/13, 3 pages

EE Letter from Parent to , 9/20/13, 3 pages

FF Amended Demand for Due Process and fax confirmation, 9/23/13, 9 pages

GG Second Amended Demand for Due Process and fax confirmation, 9/24/13, 16 pages

HH Letter from Parents to School , 10/10/13, 2 pages

II Letter from School District , 10/29/13, 2 pages

JJ Letter from parents to Parents Letter, 10/11/13, 1 page

KK The School, 7/2013 – 6/2014, 22 pages

LL Integrated Individual Education Plan, The School, 7/2013 – 6/2014, 3 pages

MM The School, -2014, 3 pages

NN 7/2013 – 6/2014, 5 pages

OO 2013-2014 Attendance Record The School, 2013, 1 page

PP Attendance Record, School, 2013-2014

QQ , various dates, 6 pages

IMPARTIAL HEARING OFFICER

I Order on Pendency, 9/5/13, 7 pages

II Closing Brief and Memorandum of Law for the Department of Education, 3/7/14, 10 pages

III Petitioner and Post Hearing Brief, 3/7/14, 8 pages