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: January 13, 2014

February 11, 2014

Actual Record Closed Date: March 10, 2014

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2014

Name Relationship On Behalf of

Mother of Student — Parents

Esq. Attorney Associated with the Law Firm of Regina Skyer & Associates, PLLC, Attorneys for Parents — Parents

Director – Steven Gaynor Early Childhood Center (by phone) — Parents

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

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 11, 2014

Mother of Student — Parents

Esq. Attorney Associated with the Law Firm of Associates, Attorneys for Parents — Parents

Special Education Teacher at the – Was Student’s Classroom Teacher during the 2013-2014 School Year (by phone) — 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 January 13, 2014 and February 11, 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 September 25, 2013. After the close of the testimonial phase of the hearing, Parents’ attorney made an oral Closing Statement. District’s Representative waived such. The Transcript of the final date of hearing was received on March 10, 2014, whereupon the Record was Closed.

The proceeding was initiated by Parents by the filing by Parent’s attorneys, & Associates, L.L.C., of a Due Process Complaint Notice, dated September 25, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on the same date (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 2013-2014 school year, by failing to properly prepare, on both procedural and substantive bases, an appropriate Individualized Education Program (I.E.P.) for Student for the 2013-2014 school year. Parents elected to unilaterally place Student at for the 2013-2014 school year. In this proceeding, Parents seek reimbursement for the cost of such placement.

Student is presently five years six months of age, having been born on July 26,

2008. According to the testimony of his mother, Student was diagnosed at an early age with and provided, at the age consisting of and, at a later date, Therapy and as well. Student transitioned to District’s Pre-School program, which placed Student in a program that provided, in addition to his schooling, the Related Services of Physical Therapy, , as well as ten hours per week of Special Education Itinerant Teacher (SEIT) services. In September of 2012, Parents determined that Student’s program during the 2011-2012 school year had not provided Student with sufficient support. Therefore, Parents placed Student in the program, believing that such program could meet Student’s needs.

According to Parent, District’s Committee on Special Education convened a Turning Five meeting on June 12, 2013 to determine Student’s program for the 20132014 school year. Present at that meeting, according to Parent, were both of Student’s Parents, Special Education School Psychologist, Student’s then-current teacher, and another person Parent could not recall. Again according to Parent, the Committee recommended that Student attend a program with a staffing ratio (T.R.127-128). The actual I.E.P. created by District’s C.S.E. at that meeting was not offered in evidence by either party (T.R. 3; T.R.10). However, Parent thereafter received from District a Final Notice of Recommendation, detailing the proffered program and a specific school site (T.R.132). Parent further testified that she had gone to visit the recommended site and was accompanied in her viewing by the school’s Parent Coordinator, who had advised her that the school had no program (T.R.130). By correspondence dated August 23, 2013 (Exhibit B), Parents’ attorneys wrote to the C.S.E. Chairperson, advising of the Parents’ rejection of the recommended program and providing in detail the flaws that Parents perceived in such. The correspondence further advised that, until the flaws perceived by Parents were addressed and rectified, Parents would place Student at the Stephen Gaynor School and seek public funding for such placement. According to Parent, no response to that letter was received. Student was, in fact, unilaterally placed by Parents at School for the 2013-2014 school year. Parents have paid the tuition for such placement to the for the 2013-2014 school year. This proceeding seeks to have District and the New York City Department of Education directed to 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, conceded Prong One of the Burlington Prerequisites, i.e., conceded that District failed to provide Student with a free, appropriate public education, for the 2013-2014 school year (T.R.6). 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 either the 2013-2014 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. After a review of the documents and testimony before me, I have yet to be able to determine the classification that qualified Student as a student in need of special education and Related Services. As noted, neither party has placed in evidence either the I.E.P. created by District’s C.S.E. on June 12, 2013, which would have contained a description of Student’s academic, social, physical or management levels of performance or a psychological evaluation which would have provided insight into precisely what deficits Student exhibits that warranted the finding that Student was in need of Special Education and Related Services. Yet, in assessing the appropriateness of the Parents’ unilateral placement, I must necessarily determine if such facility 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 Student’s unique needs as a student with a disability, I have relied on the testimony provided by Witness Education at the Witness , Student’s current classroom teacher. Witness testified that she was very familiar with Student, as she had been part of the team that determined to accept Student into the School’s program for the 2012-2013 school year. Witness recalled that when she had met Student at that time, Student presented with impairment (T.R.20). Witness had described Childhood as one designed for children who are bright, with academic potential, but who might have some form of that made it difficult for such students to participate in a mainstream classroom setting (T.R.17).Witness had a total enrollment of thirty-one students, separated into three classes, each having ten or eleven students, staffed with one Teacher and one Co-Teacher. The School also had an of providing individual services, but who also participated daily in each classroom, so that one of such was always in the classroom with the Teacher and Co-Teacher (T.R. 17-18). While, according to Witness , Student had made significant progress during the 2012-2013 school year, Student still displayed, at the commencement of the 20130-2014 school year, speech/language difficulties and sensory motor difficulties, as well as difficulty sustaining focus and attention. Witness also noted that Student had slow procession speed and difficulty with working memory (T.R.23).

Witness testified that she possess certification as a special education teacher. In addition, she possesses a Master’s Degree in Art Therapy. Witness testified that she had had the opportunity, before the commencement of the 2013-2014 school year, to discuss Student and his needs with the classroom teacher who instructed Student during the 20122013 school year. Witness described Student as being very smart but needed frequent teacher scaffolding and prompts, and that which required that Student be afforded additional support (T.R.54). Witness that Student tired easily and that he required frequent breaks throughout the school day (T.R.56). In September of 2013, Student, as well as the others in the class, was assessed by the teacher, utilizing DIBELS (Dynamic Indicators of Basic Early Literacy Skills), as well as a Mathematics assessment, in order to determine his then-academic levels (T.R. 57). However, the witness was unable to recall specific information obtained through those assessments. Student’s class at the had an enrollment of ten students, which was staffed by Ms. Teacher, as well as a CoTeacher and, on varying schedules, always one of the Related Service providers. However, during the school day, the class was split into small group settings for instruction depending on the subject matter being taught. Student was placed in a group of three, including Student, for mathematics, which was taught by the Class Teacher Saad. For Reading, Student was placed in a group of seven students and for Science in a group of five (T.R.53). Witness also described the roles the Related Service providers played throughout the school day. According to Witness Therapist participates in the whole class instruction by providing instruction in formulating or sequencing sentences or pushing in services to students to whom she has provided individual speech therapy. Such Therapist also works during play time developing student social and conversational skills (T.R.59).

According to Witness , Student has benefited greatly from the program and has made significant progress in all areas. Small group instruction (three students) has kept Student from being distracted and the Mathematics program afforded to Student assisted Student in visualizing the subject matter. Student has also made progress in Reading, where Student has been place in an appropriate group with students having similar levels of ability. It was the opinion of Witness the program offered to was most appropriate and that Student displayed progress in every area.

It is my finding and determination that Parents have more than borne their burden of establishing that the was appropriate to meet Student’s specific educational deficits and was more than able to meet 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 the Stephen Gaynor School for Student’s attendance at that facility for the 2013-20124 school year. Both parents participated in the meeting held by District’s C.S.E. to plan Student’s program for the 2013-2014 school year. Parent visited the proposed placement. Parents had their representatives communicate with District personnel to convey Parents’ disagreements and concerns with the recommended program – a communication to which the District and the New York City Department of Education did not respond. While Parents signed an Enrollment Contract for Student’s attendance in the the 2013-2014 school year on March 6, 2013 and March 5, 2013, such Enrollment Contract (Exhibit D) specifically provided that Parents would not be bound by the Contract if they withdrew Student by September 15, 2013 to place Student in a New York City Public School or a New York State approved non-public school. District’s Representative asked no questions of Parent after the conclusion of her 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 between Parents and the Stephen Gaynor School (Exhibit D) established tuition at Fifty-Two Thousand One Hundred ($52,100) Dollars. I find that such amount is reasonable. Parents have paid that full amount (Exhibit F).

Accordingly, it is my further finding and determination that Parents are entitled to reimbursement of the monies paid by them for Student’s attendance at the Early Childhood Program of the for the 2023-2014 school year.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District #3 and the New York City Department of Education pay to Parents the sum of Fifty-Two Thousand One Hundred ($52,100) Dollars as and for reimbursement to Parents of the sums paid by Parents for their unilateral placement of Student in the Early Childhood Program of the the 2013-2014 school year. Dated: March 12, 2014

___________________________

JAMES P. WALSH

Impartial Hearing Officer

JPW: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 RECORD ON JANUARY 13, 2014

A. Parents’ Due Process Complaint Notice, dated 9-25-13 (4 pages; Parents)

B. Letter from Parents’ Attorneys to C.S.E. C.S.E. Chair, dated 8-23-13 (4 pages; Parents)

C. Copy of Email from Parent to Principal, dated 7-8-13 (1 page; Parents)

D. Enrolment Agreement, dated 3-6-13; 3-5-13 by Parents and 3-15-13 by School (4 pages; Parents)

E. Daily Schedule for Student at – 2-13-2014 School Year (1 page; Parents)

DOCUMENTATION ENTERED INTO RECORD ON FEBRUARY 11, 2014

F. Statement of Payments by Parent to, dated 1-10-14 (1 page; Parents)

G. Speech and Language Remediation Report Parents Mid-Year 2012-2013 by CCC-SLP of the (3 pages; Parents)

H. Occupational Therapy Remediation Report Parents Mid-Year 2012-2013 by Therapist Eisenberg, of the (4 pages; Parents)

I. Student’s End-of-Year Report Card from for the 2012-2013 School Year (3 pages; Parents)

J. Student’s Mid-Year Report Card from for the 2013- 2014 School Year (13 pages; Parents)