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: March 25, 2014

April 4, 2014

Actual Record Closed Date: April 7, 2014

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 25, 2014

Name Relationship On Behalf of

Esq. Attorney for Parents — Parents

Director – School (by phone) — Parents

Ph.D. District and Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2014

Name Relationship On Behalf of

Mother of Student — Parents

Attorney for Parents — Parents

Ph.D. District and 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 March 25, 2014 and April 4, 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 August 13, 2013. After the close of the testimonial phase of the hearing on April 4, 2014, and in light of the minimal testimony provided on that date by Parent I determined that it was unnecessary to await the receipt of the final transcript before proceeding to the issuance of a Decision. Therefore, I shall note references, where appropriate, only to the Transcript of the hearing of March 25, 2014. The Record Close Date is April 7, 2014

This proceeding was initiated by Parents by the filing by Parents’ attorneys, , P.C., of a Due Process Complaint Notice, dated April 25, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on August 9, 2013(Exhibit A). Parents allege in their Due Process Compliant that District and its Committee on Special Education (C.S.E.) failed to offer Student a free, appropriate public education (FAPE) for the 2012-2013 school year, by failing to recommend a substantially appropriate placement; failing to consider current, sufficient and appropriate evaluative and documentary material; and failing to afford Parent a meaningful opportunity to participate in the decision-making process. As a consequence of such perceived failings. Parents elected to unilaterally continue Student’s placement the 2012-2013 school year. In this proceeding, Parents seek reimbursement for the cost of such placement.

Student is presently contents of Parents’ Due Process Complaint (Exhibit A), as well as a review of a Psychological Evaluation performed in April and June of 2011 (Exhibit M), I have been able to confirm that, by the age of two, Student was noticed by Parent to not be . Student was and, thereafter, first , thereafter, at the the 20082009 school year, Student was placed at located in Waldwick, New Jersey. Student has remained in such placement ever since.

In April and June of 2011, a of Student had been conducted by , Psy.D. The Report of that evaluation (Exhibit H), after referencing a number of prior evaluations, noted that, on being assessed through the use of the Wechsler Abbreviated Scale of Intelligence (WASI), Student displayed a Verbal Student in Performance placing Student in an was also assessed through the use of the Woodcock-Johnson Tests of Achievement – Third Edition. In that assessment, Student scored a Grade Equivalency of 2.3 in Letter and Word identification; a Grade Comprehension; and a Grade Equivalency in Mathematics. It was also noted that, through additional assessment of Student’s daily living skills in the areas of General Adaptive Functioning, Conceptual, Social and Practical, Student scored in indicating skills necessary to become independent. Socially, it was reported that Student, while eager to engage with others, had difficulties with language pragmatics that interfered with her ability to successfully engage in appropriate reciprocal conversations (Exhibit H). Student was found to become anxious, and in certain circumstances, become fixated on her thoughts, with a resultant interference with Student’s ability to attend.

An Individualized Education Program (I.E.P.) was prepared for Student by District’s Committee on Special Education (C.S.E.) for the 2012-2013 school year on March e20, 2013 (Exhibit P). Such classified Student as having an Intellectual Disability. That I.E.P. reflected the findings of Dr. s Evaluation (Exhibit H), as well as noting that, while Student had , ( ?), such did not hinder Student in her participation of activities. It also noted that Student had been diagnosed ) and (Exhibit P). The Committee recommended that Student receive her special education program in a Special Class in a Community School having a staffing ratio of , together with the Related Services Occupational Therapy and Counseling (Exhibit P).

It appears from correspondence sent by Parent, dated June 22, 2012, (Exhibit C), that Parent had received a Final Notice of Recommendation (FNR) from the District offering Student a placement at the Manhattan Occupational Training center at Public School . However, such Final Notice is not in evidence in this proceeding. In such correspondence, Parent noted her disagreement with such placement. Many other correspondences (Exhibits D, E, F and G) echoed such conviction. While Parent continued to express her willingness to view other proffered placements if offered, Parent advised the District of her intent to continue Student in her placement at The Forum School until an appropriate placement might be offered. Student was, in fact, continued at her unilaterally-selected placement at The Forum School for the 2012-2013 by Parents. Parents have paid the tuition for such. This proceeding seeks to have District and the New York City Department of Education reimburse Parents for such tuition payment.

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 Parents’ 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). Further, 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 Education Department of the State of New York is not 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]).

The Supreme Court of the United States, in deciding the matters of School Committee of the Town of Burlington v. Department of Education of Massachusetts, 41 U.S. 379; 105 S. Ct. 1996; 85 L. Ed. 2d. 385 and Florence County School District Four, et al. v. Carter by Carter, 114 S. Ct. 361 (1993) addressed the issue of reimbursement for parents who unilaterally place their disabled child in a private school setting, whether State-approved (Burlington) or non-State approved (Carter) and established that, to properly determine the issue of reimbursement, what had to be considered was:

“Whether the placement proposed by the school district was appropriate;

Whether the placement unilaterally selected by the parent was appropriate; and

Whether equitable considerations supported an award.”

BURDENS 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 in most proceedings, that I first determine whether or not the School District offered to Student a free, appropriate public education. The burden of establishing that it did so rests with the District, pursuant to the provisions of New York State Education Law §4404(1)(c)). However, in the instant proceeding, a review of the appropriateness of District’s has been rendered unnecessary by the concession by District’s Representative that it indeed failed to offer Student a free, appropriate public education for the 2013-2014 school year. Such concession permitted the review to proceed directly to the required review of the appropriateness of the Parents’ unilaterally-selected educational placement of Student at the Stephen Gaynor School. In conducting such review, I am guided by the rulings recently made by the State Review Officer in determining the Application of XXXXX, Appeal No. 13-078, dated September 27, 2013, wherein it was stated that:

“A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; 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 614). 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). 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]). "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; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). 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 [citing 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]; 34 CFR 300.39[a][1]; Educ. Law § 4401[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 special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v.

New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18,

2010]).

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; see Frank G., 459 F.3d at 364-65).”

Should I determine that Parents have failed to sustain the burden of establishing the appropriateness of their unilaterally-selected placement, Parents’ request for reimbursement must be denied. However, should it be determined that Parents have successfully established the appropriateness of that unilaterally-selected placement, I must then consider whether equitable considerations favor an award of tuition reimbursement. I place the burden of establishing that equitable considerations do not favor such award upon District (Education Law §4414(1)(c)).

DISCUSSION

As noted above, while the first prong of the Burlington Prerequisites, as well as the provisions of Education Law §4404(1)(c), require inquiry into the adequacy and appropriateness of the program recommended by District, it is unnecessary in this instance that such inquiry be conducted, as District’s Representative, on the first day of hearing, advised that the District Representative would not be presenting any case, as the Representative was not in a position to adequately investigate or research the case in order to determine if the Department had a Prong One defense or not (T.R.8). Further, District made no Opening Statement, called no witnesses, nor offered any exhibits into evidence.

It is, therefore, my finding and determination that District has failed in its burden to establish the appropriateness of the I.E.P. prepared for Student for the 2012-2013 school year or to establish, as it had the obligation to do, that it offered Student a free, appropriate public education in that school year.

Pursuant to the provisions of Education Law §4404(1)(c), the burden of proof of establishing the appropriateness of the unilaterally-selected placement of Student – that is, both the burden of production and the burden of persuasion – rests upon Parents. It is necessary, therefore that I determine whether

The Forum School is capable of providing:

“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 In an attempt to determine whether The Forum School was capable of meeting Student’s unique needs as a student with a disability, I have relied on the testimony provided by both Witness Segal, a Social Worker at , Student’s classroom teacher at The Forum School during the 2012-2013 school year.

Witness Segal testified is a New Jersey State-approved not-for-profit special education facility specifically created to meet the needs of children with based impairments (T.R.15). It presently serves one-hundred two students between the ages of three and twenty-one (T.R.14).The classes are staffed with a minimum of one adult to every two children, although some classes have even more severe staffing (T.R.15). All teachers are certified in Special Education by the State of New Jersey (T.R. 16). Teachers are supported by Assistant Teachers who are not necessarily certified. While classes are ungraded, students are placed with age-appropriate peers (T.R.16). The School follows the New Jersey Common Core curriculum and offers the Related Service of Speech/Language Therapy (T.R.18). Other Related Services are provided where necessary by the State of New Jersey through contracted therapists (T.R.18). Witness Segal opined that Student’s special education needs were similar to the other students served by the School (T.R.23). Student is receiving her Related Services of Therapy and (T.R.22-23).

Witness Student’s classroom teacher during the 2012-2013 school year provided testimony regarding Student’s program and functioning. Witness estified that he holds a Master’s degree in Special Education (T.R.27) and that he was assisted in the classroom by three teaching assistants. Witness described his classroom procedure in creating small groups for instruction in English and Mathematics – including, where appropriate, one-on-one instruction - , and utilizing large group instruction for Science and Social Studies (T.R.31). Witness testified that Student was functioning in Reading at a mid-Third Grade level in terms of decoding and actual reading (later corrected by Witness to a mid-Second Grade level (T.R. 360)), so that Student received her instruction in a group of two (T.R.35). In Math, Witness testified that Student was at a beginning-First Grade level (T.R.33), so that Student received Math instruction individually (T.R.36). The program afforded to Student at also afforded Student instruction in developing appropriate social skills, utilizing a program referred to as . (Learning Independence for Tomorrow) (Exhibit J), which basically dealt with the development of social interaction skills with others and necessary for interaction in the community (T.R.34). Further, a review of the Report of Student’s progress at The Forum School during the 2012-2013 school year discloses that Student has made progress on almost all of her Goals and Objectives and regressed in none (Exhibit K).

It is my finding and determination that Parents have more than borne their burden of establishing that was appropriate to meet Student’s specific educational deficits and that the program offered by was meeting Student’s unique special education needs.

Moreover, there is nothing in the Record before me that would in any manner indicate that Equitable Considerations might impede a determination that Parents are entitled to reimbursement of the monies they have paid to for Student’s attendance at that facility for the 2012-2013 school year. One Parent participated in the meeting held by District’s C.S.E. to plan Student’s program for the 2012-2013 school year. Parent visited the proposed placement. Parent communicated on a number of occasions with District personnel conveying her disagreements and concerns with the recommended program (Exhibits C,D E, F and G). Parent signed an Enrollment Contract for Student’s attendance at for the 2012-2013 school year on July 3, 2012 (Exhibit M) – after Parent had received a Final Notice of Recommendation, had visited the proposed placement, and had advised the District of her determination that such placement was inappropriate. District’s Representative asked no questions of Parent after the conclusion of Parent’s direct testimony. As noted, the burden of proving that Equitable Considerations do not favor reimbursement has been placed upon District. It has failed to sustain that burden.

The Enrollment Contract (Exhibit M) obligated Parents to pay for a Ten-Month program in the amount of Forty-Six Thousand Seven Hundred Twenty-Four and 40/100 ($46,724.20) Dollars. Parents have submitted both an Affidavit by the School’s Accounts Receivable/Accounts Payable Manager Wimer, attesting to the monthly payments made by Parents (Exhibit L) and copies of each check paid by Parents to The Forum School. Both total the sum of Forty-Six Thousand Seven Hundred Twenty-Four and 40/100 ($46,724.20) Dollars.

Accordingly, it is my further finding and determination that Parents are entitled to reimbursement of the monies paid by them for Student’s attendance for the 2023-2014 school year, in the amount of Forty-Six Thousand Seven Hundred Twenty-Four and 40/100 ($46,724.20) Dollars.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District #3 and the New York City Department of Education pay to Parents. as and for reimbursement to Parents of the sums paid by Parents for their unilateral placement of Student in The Forum School for the 2012-2013 school year, the sum of Forty-Six Thousand Seven Hundred Twenty-Four and 40/100 ($46,724.20) Dollars. Dated: April 11, 2014

James Walsh mv

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JW;mv

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 FEBRUARY 25, 2014

A. Parents’ Due Process Complaint Notice, dated 4-25-13 (7 pages; Parents)

B. New York City Department of Education’s Response to Complaint (3 pages; Parents)

C. Letter from Parent to dated 6-22-12 (5 pages; Parents)

D. Letter from Parent to, dated 7-17-12 (1); Transmission Report (1) (2 pages; Parents)

E. Letter from Parent to, dated 8-7-12 (2); Transmission Report (1) (3 pages; Parents)

F. Letter from Parent to C. Darrow, dated 9-13-12 (2); FedEx Proof of Delivery, dated 9-18-12 (1) (3 pages; Parents)

G. Letter from Parent to, dated 11-29-12 (2 pages; Parents)

H. Psychological Evaluation of Student by, Psy.D., dated 6-30-11 (7); Appendix (2) (9 pages; Parents)

I. Program Description of (1 page; Parents)

J. Description of the. Program (1 page; Parents)

K. Student’s Final Progress Reports from The Forum School for the 2012-2013 school year (24 pages; Parents)

L. Affidavit of of The Forum School, sworn to on 7-1-13 (1 page; Parents)

M. Tuition Agreement by Parents for the 2012-2013 school year, dated 7-3-12 (1 page; Parents)

N. Student’s Daily Schedule at The Forum School for the 2012-2013 school year (1 page; Parents)

O. Copies of checks paid by Parent to The during 2012-2013 school year, with various dates (10 pages; Parents)

P. Student’s I.E.P. as prepared by District’s C.S.E. on 3-20-12 (18 pages; Parents)