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: May 20, 2014

Actual Record Closed Date: June 17, 2014

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 20, 2014

Mother of Student — Parents

Parent Advocate — Parents

Curriculum Director at Representative for New York City — Parents

Department of Education and District # — DOE

The Matter referred to as “Student”), came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq. on May 20. 2014, for a hearing on the merits of Parents’ Due Process Complaint.. The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter, after the recusal by one or more previouslyappointed Impartial Hearing Officers, by notice dated December 17, 2013. The Transcript of Proceedings was received on June 17, 2014. The Record was Closed on June 17, 2014

The proceeding was initiated by correspondence filed on behalf of Parents by Parent Advocate Shapiro, dated October 24, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The Due Process Complaint (Exhibit A) alleged that District’s Committee on Special Education (C.S.E.) failed to provide Student with a free, appropriate public education for the 2013-2014 school year. Specifically, Parents challenged the appropriateness of the Committee’s recommendation that Student receive her special education in a Special Class having a staffing ratio of and taught in Yiddish, as well as challenging the appropriateness of the placement offered to Student. Parents allege that, having determined that the proffered program was inappropriate for Student, Parents unilaterally enrolled Student in a special education program for the 2013-2014 school year. Parents have brought this proceeding seeking reimbursement of monies paid by Parents for Student’s attendance at such educational facility for the 2013-2014 school year and direct retrospective payment of tuition not paid or reimbursed,.

Student is presently nine years three months of age, having been born on March 14, 2005. However, at the time District’s C.S.E. met on April 26, 2013 to prepare Student’s special education program for the 2013-2014 school year, Student was eight years one month of age. According to the testimony of Parent, Student displayed Intervention services. When Student became eligible to apply , Student was found to be a Pre-School Student with a Disability and provided with the Related Services of as well as the services of a Special Education Itinerant Teacher (SEIT) (T.R.71). Student attended a School-aged program in a Satmar regular-education facility, where Yiddish was spoken (T.R.71). At the commencement of the 2012-2013 school year, because of Student’s special needs, Student began attending (T.R.71).

A Bilingual Yiddish Psycho-educational Evaluation was conducted on January 14, 2013. The results of that evaluation, also reported in the I.E.P. of April 26, 2013 (Exhibit 2), noted that Student had been administered the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), where Student achieved functioning. Also, the administration of the Wechsler Individual; Achievement Test – Third Edition (WIAT-III) disclosed that Student areas (Exhibit 3), that Student was performing in Early Reading Skills at a , in Math at It was opined that Student would in in a wide variety of situations that required age-appropriate thinking and reasoning abilities.

District’s C.S.E. convened on April 26, 2013 to develop Student’s program for the 2013-2014 school year. The Committee classified Student as Impairment and recommended that Student receive her special education program in a Special Class in a Community School having a staffing ratio with the language of services Yiddish, together with the Related Services of Counseling, two times weekly, thirty minutes per session, individually two times weekly, thirty minutes per session, individually, to be delivered in English; and Therapy two times weekly, thirty minutes per session, individually, to be delivered in Yiddish; (Exhibit 2). The projected date of implementation of Student’s I.E.P. was September 4, 2013. According to Parent, both Parent and Student’s then-current teacher shared their feeling that Student required a smaller class setting. Thereafter, District issued to Parent a Final Notice of Recommendation on June 24, 2013 (Exhibit 1), proffering Student placement at Public School #16 Brooklyn for the 2013-2014 school year.

Parents wrote to District on August 22, 2013, advising that the Final Notice of Recommendation arrived too late in the school year to visit the proffered program, but that Parents would do so in September to determine the appropriateness of the placement for Student. Parent stated in that letter that if Parent found the public school placement to be appropriate, Parent would sign the Final Notice of Recommendation and enroll Student, but that, until such visit, Student would begin the school year at where Student had attended during the preceding school year and request an impartial hearing (Exhibit I). Parent testified that Parent went to the recommended placement during the first week of September 2013 and was advised that the school offered no classes in Yiddish (T.R.76). Parents continued Student’s enrollment for the entire 2013-2104 school year. Although it appears that Parents never thereafter advised District of their visit to the proffered placement nor the rejection by Parents of that placement.

Parents have commenced this proceeding to seek an Order requiring District and the New York City Department of Education to provide tuition reimbursement for the costs associated with Student’s for the 2013-2014 school year which Parent shave paid and for an Order requiring the direct retrospective payment of any unpaid tuition arising from such unilateral placement..

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. sand 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

Generally, 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 or, as here, other relief, 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).

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, at the commencement of proceedings, District’s Representative Montolio conceded Prong One of the Burlington-Carter prerequisites; that is, that the services offered by the Board of Education were inadequate or inappropriate. Based on District’s concession, it is my determination that District failed to offer Student a free appropriate public education for the 2013-2014 school year.

Having made such determination, it is then necessary that I examine the program unilaterally selected by Parents for the 2013-2014 school year in order to determine if such unilaterally-selected program was appropriate for Student. In conducting that review, I have been somewhat guided by the decision rendered by the State Review Officer in Application of the XXXXXXXXX , Appeal No. 13-198, wherein it was stated that:

“A private school placement must be "proper under the Act" for parents to be entitled to public funding (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), that is, the private school must offer an educational program which meets the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v.

Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14; 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).

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 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; 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).” Witness , the Special Education Director , described the program offered has approximately four hundred thirty general education students. The six special education classes grades One through Nine (T.R. 19). Student is in a class composed of ten children, five of whom are in the Third Grade and five in the Fourth Grade, and all of whom are girls (T.R.31). as Director, the School has three academic coaches; one for Reading Comprehension; one for Mathematics; and one for Phonics (T.R.20), all of whom possess Masters Degrees in Special Education (T.R.20). Classes are taught as a group, but then broken into smaller units for instruction (T.R.. Each class has one teacher and three assistants (T.R.21). One teacher teaches from 9:00 a.m until 1:00 p.m., concentrating on skill development, while another teacher teaches from 12:00 to 4:00 p.m., focusing on the core subjects of reading, writing and mathematics (T.R. 21). Neither teacher possesses any college degree or Masters Degree, but both possess seminary diplomas (T.R.48). Although both teachers speak both English and Yiddish, neither has training in how to instruct bilingual students (T.R. 58). According to the testimony of Witness is her most (T.R.39), although Witness Goldfinger also opined that pressing issues affecting her academics (T.R.45). I note that nowehere in the documents before me – specifically in the Report of the Bilingual Yiddish Psycho-educational Evaluation (Exhibit 3) - is there any reference to Student having ). Student was reported by to have far better skills in Yiddish than in English, noting that Student vocabulary and very little schema in English (T.R.61-62) opined that Student made progress in all areas, in some more than others, and in some, minimal (T.R.55-58). The School operates only four full days per week, as Fridays conclude at 12:00 for Sabbath. Also, I note that the Morning Program on Fridays has but minimal academic activities (Exhibit G) (T.R.64). The Daily Program at provides for thirty minutes per day for Prayer (Exhibit

G) (T.R.65).

I find that the program offers little in the way of a true educational program for Student. However, I am guided by the pronouncements of Federal Courts reviewing the extent of benefit that must be established in weighing the sufficiency of evidence required to uphold a parental unilateral placement. While neither of Student’s teachers have any certification in special education or experience in bilingual instruction, it has been determined that private placements need not employ certified teachers (Carter, supra). Also, while Student has made some – but hardly significant - progress, such was forewarned in Student’s Bilingual (Exhibit 3). Thus, guided by the broad gauge that "[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], it is my finding and determination that Parents have borne their burden of establishing the appropriateness of their unilateral placement of for the 2013-2014 school year.

Having made such determination, it is necessary to now determine whether equitable considerations warrant an award of tuition reimbursement or direct retrospective payment of tuition for Student’s unilateral placement for the 2013-2014 school year. As noted by the State Review Officer in deciding Application of a Student Suspected of Having a Disability, Appeal No 14-003:

“The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v.

Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic

Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032)”.

Parents entered into an Enrollment Contract for Student’s attendance at the facility on August 28, 2013 (Exhibit B), although I note the absence of any participation- no signature - in that Contract by or on . The Contract specifically requires the payment of a non-refundable deposit of Four Thousand ($4,000.00) Dollars at the time of enrollment or no later than September 2, 2013 (Exhibit B). However, there is no evidence that Parents made such non-refundable deposit. Remarkably, Parent testified that she didn’t remember if she paid any money at the time she signed the Contract (T.R.85). There is evidence, however, that Parents the sum of Three Thousand Four Hundred ($3,400.00) Dollars on September 1, 2013 (Exhibits D and E). The Contract also provides that if the New York City Department of Education should offer the student a placement that the parent deems appropriate and withdraws the student during the month of September, it is not responsible for quarterly payments (However, there is no provision of the return of the non-refundable deposit).

Parents entered into the Contract and, on September 1, 2013, paid it the sum of Three Thousand Four Hundred ($3,400.00) Dollars Such actions were taken prio to any visit by Parents to the school program offered by District - and even though Parent had advised District that Parent would visit the proffered placement and sign the Final Notice of Recommendation and enroll Student in such program if she had found it appropriate Exhibit I). I note that Parents have never enrolled Student in any public school program (T.R.86), placing Student first at Satmar and then at . Parents also speak only Yiddish in the home (T.R.72). Parents are charged with cooperating with the District and the New York City Department of Education in finding an appropriate program within the public school system if possible. It is my finding and determination that Parents never intended to place Student in any public school program they might be offered for Student, but to continue Student’s placement in their preferred sectarian facility. I note that, when specifically asked by Parent’s Advocate if Parent was interested in a public school placement, Parent responded: “If it’s appropriate, then I would definitely look at it” (emphasis mine) – hardly a commitment to accept it if Parent deemed it appropriate – which is what Parent had stated to District in her letter of August 23, 2013 (Exhibit I).

It is my finding and determination that Equitable Considerations do not favor an award of tuition reimbursement or direct retrospective tuition payment arising from Parents’ unilateral placement of for the 2013-2014 school year.

In Parents’ Due Process Complaint, it was alleged that Parents questioned the appropriateness of the action of District’s C.S.E. in classifying Student as having a . While limited testimony was permitted on this issue, the Due Process Complaint contained no request for relief that such be changed. I therefore find that such is not an issue presently before me in this proceeding.

ORDER

Based upon the above, it is

HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is, DISMISSED. Dated: July 7, 2014

James Walsh mv

JAMES P. WALSH

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 MAY 20, 2014

A. Parents’ Due Process Complaint Notice, dated 10-24-13 (3 pages; Parents)

B. Enrollment Contract between Parent and, dated 8-28-13 (3 pages; Parents)

C. Student’s Therapy Schedule for the 2013-2014-school year (1 page; Parents)

D. Affidavit by, sworn to on 5-15-14 regarding Tuition Payments by Parents to School (1 page; Parents)

E. Copies of Credit Card Statements – various dates – with payment School circled (7 pages; Parents)

F. Copies of Licensure of Related Service Providers at School during the 2013-2014 school year (6 pages; Parents)

G. Student’s Schedule and Curriculum at School for the 2013-2014 school year (6 pages; Parents)

H. Final Notice of Deferred Placement, dated 6-16-13 (1 page; Parents)

I. Letter from Parents to C.S.E., dated 8-22-14 (1 page; Parents)

1. Final Notice of Recommendation, dated 6-24-14 (1 page; DOE)

2. Student’s I.E.P. as prepared by C.S.E. on 4-26-13 (10 pages; DOE)

3. Bilingual Yiddish Psychological Evaluation of DOE Student, dated 1-14-13 (5 pages; DOE)