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: February 26, 2014

Actual Record Closed Date: March 10, 2014

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 26, 2014

Mother of Student — Parents

Esq. Attorney for Parents — Parents

District and New York City — DOE

Representative — DOE

The matter of ., (hereinafter referred to as “Student”) first 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 February 26, 2014.

The proceeding was commenced by Parent, by correspondence forwarded on their behalf by to the New York City Department of Education’s Impartial Hearing Office, dated October 24, 2013 and received by the Impartial Hearing Office on October 28, 2013 (I.H.O. Exhibit I). The undersigned was appointed by the Impartial Hearing Office of the Department of Education of the City of New York, after the recusal by one or more previously-appointed Impartial Hearing Offices, to preside over this matter by notification dated November 19, 2013. After the close of the testimonial phase of the hearing, both representatives waived closing arguments. The Transcript was received on March 10, 2014, after with the Record was closed.

Parent alleges that District and the New York City Department of Education failed to conduct an Annual Review to prepare Student’s Individualized Educational Program (I.E.P.) for the 2013-2014 school year and failed to offer Student any placement whatsoever for the 2013-2014 school year (I.H.O. Exhibit I). Thus, Parent alleges that District and the New York City Department of Education failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year. Parent unilaterally continued Student’s placement at for such school year. Parent seeks, in this proceeding, an Order directing District and the New York City Department of Education to retrospectively pay directly to the Gateway School the cost of tuition due to it for such enrollment of Student for the 2013-2014 school year.

Student is , having been born on . According to the testimony of Parent, it was when Student was that Student first (T.R. 19), when Parent noted that, although Student Mathematics and Science, Student was (T.R.19), noting that, in fact, reading had always for Student. Parent took Student, in December of to the , which diagnosed Student has (T.R. 19-20). Parent claimed that Student in class, which resulted in Student’s (T.R.21). Parent had initially placed Student at the beginning of the 20112012 school year, as Student was , and had continued such placement during the 20122013 school year. As noted, Parent has again unilaterally placed Student School, where Student is currently in . It is for such placement that Parent now seeks direct payment to for the costs associated with such 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 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 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 Individualized Education Program (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 v. Arlington Cent. Sch. Dist., 489 F.3d at 112

Should I determine that Parent has failed to sustain the burden of establishing the appropriateness of her unilaterally-selected placement, Parent’s request for reimbursement must be denied. However, should it be determined that Parent has 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 has 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.13). 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, 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 Parent. After a review of the documents and testimony before me, I have learned only from a review of a statement contained in Parent's Due Process Complaint (I.H.O. Exhibit I) that Student has been classified as having a . It appears that District never prepared an Individualized Education Program for Student for the 2013-2014 school year (cf: T.R.22), which would have contained a description of Student’s academic, social, physical or management levels of performance. Also, there is nothing before me, such as 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, on which Parent’s request for retrospective payment to that facility necessarily rests, I must determine if is capable of providing Student with:

“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 Parent was unable to provide information regarding Student’s Reading levels when in Fourth Grade (T.R.20-21) and never even attempted to address any of Student’s ability levels at the time Student was unilaterally placed by Parent at for the 2013-2014 school year. Nor is there in evidence any Progress Reports or Year-End Report Cards prepared by staff at at the conclusion of the 2012-2013 school year that might have shed light on Student’s learning deficits or special needs. While there is in evidence (Exhibit

D) reports of Student’s progress during the current school year, for which payment is sought, such reports do not disclose Student’s deficits at the time Parent unilaterally placed Student at . Parent is obviously pleased with Student’s successes while at The since she entered in September of 2012. Parent has stated that Student “bloomed” upon entering that facility and felt – and continues to feel - comfortable in that setting (T.R.23).

Parent’s sole other witness in this proceeding was , the Director of Curriculum at . was, until this school year, the administrator of the at The and, in that position, saw Student in her class, spoke with her teachers regularly about Student’s progress, and reviewed Student’s report Cards every time they were written (T.R.31). was the only source of information regarding Student’s deficits. stated that Student had great difficulty with , as well as which impact all academic and social areas (T.R.32). Witness impacted Student’s reading comprehension and note taking, while Student’s deficit in for Student to follow directions as they became increasingly complex (T.R. 33). Witness the program at , which provides Student with a special education environment that specializes in students with (T.R.33). According to Witness ensures that students understand direction, understand content and are able to build skills for functional mastery of all academic tasks (T.R.34). The School employs a staff of Pathologists who push into the class setting to assist students and advise teachers (T.R.34). Witness oted that Student’s reading comprehension skills were below age and grade expectations, indicating that Student, while in , she was functioning at a level (T.R.36). According to Witness Student has progressed from reading level to an early level during her three years at (T.R.36). Witness gave no indication of on what she had based such opinion – but neither was she asked. Witness spoke grandly of Student’s development as a leader and well-liked member of her class, which the witness contrasted with the fragile, very anxious child who first came to the School (T.R.38). , according to Witness , offers instruction in classes of ten students and two teachers, offering instruction in either the whole group or two small groups of five (T.R.39) and offers instruction in all core subjects and follows the Core Curriculum. It is clear from a review of the various teacher reports completed at the close of the First Trimester (Exhibit D), that Student is progressing and meeting the demands of the program.

While Parent might have provided more complete or more compelling evidence regarding Student’s deficits, it is my finding and determination that Parent has presented sufficient information regarding Student and her special education needs and deficits, and sufficient evidence to establish that the is addressing those needs by providing instruction specifically designed to meet those needs and that Student is benefitting from such instruction. Thus, it is my finding and determination that Parent has successfully borne her obligation of establishing the appropriateness of her unilateral placement of Student at during the 2013-2014 school year.

In determining whether equitable considerations require any denial or reduction in Parent’s entitlement to her request for direct payment of the tuition due to School for Student’s attendance thereat during the 2013-2014 school year, I note that Parent in no way interfered with the District’s Committee on Special Education (C.S.E.)’s obligation to fashion an appropriate program for Student. Indeed, Parent notified the Committee that it had failed to timely meet and prepare an I.E.P. for Student (Exhibit B), but received no response nor any action on the part of the C.S.E. The burden of establishing that equitable considerations did not favor an award to Parent was placed upon District (Education Law §4404(1)(c)). It has failed to do so.

Tuition at for the 2013-2014 school year was in the amount of Fifty-Six Thousand Eight Hundred ($56,800) Dollars (Exhibit D). There is nothing in the Record that questions the reasonableness of that amount. Parent has placed in evidence her Federal Income Tax Return (Form 1040) for the year of 2012 (Exhibit E). That document indicates that Parent had earnings of Eighty Thousand ($80,000.00) Dollars. It appears that Parent has few assets other than her income (T.R. 26-27). Thus, Parent was in no financial position to initially fund student’s placement and thereafter seek reimbursement.

Parent entered into an Enrollment Contract with The on June 23, 2013 (Exhibit D). Thus, Parent had entered such Contract before Parent was aware that District would fail to conduct an Annual Review or an appropriate placement. The Enrollment Contract specifically provided that such could be cancelled prior to September 1, 2013 if Student was placed by Parent in a class recommended by the Department of Education. However, non-refundable deposits would not be returned (Exhibit D). Parent had, in fact, made a non-refundable deposit of Two Thousand ($2,000.00) Dollars on June 23, 2013 – the date Parent had signed the Enrollment Contract (Exhibit D). Thus, even in the event that the Department of Education would have offered an appropriate program and placement that would have met Student’s needs, the Two Thousand Dollar payment made by Parent on June 23, 2013 would not have been recovered.

Therefore, I shall find that Parent is entitled to a determination requiring District and the New York City Department of Education to directly pay to School the sum of Fifty-Six Thousand Eight Hundred ($56,800.00) Dollars, the amount due to such institution for Student’s attendance thereat during the 2013-2014 school year.

ORDER

Based upon the above review, it is HEREBY ORDERED that District #3 and the New York City Department of Education directly pay to School the sum of Fifty-Six Thousand Eight Hundred ($56,800.00) Dollars, the amount due to such institution for Student’s attendance thereat during the 2013-2014 school year. Dated: March 20, 2014

James Walsh mv

JAMES WALSH, ESQ.

Impartial Hearing Officer

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 26, 2014

A. Enrollment Agreement Between Parent Parent dated 10-17-13 (1 page; Parents)

B. Letter from Parent to Chairperson, dated Parent 8-21-13 (1 page; Parents)

C. Copy of Email from to Representative Parent Rus, dated 2-20-14 and return by, dated 2-24-14 (1 page; Parents)

D. Affidavit by Chief Operating and Financial Officer of Parent, sworn to 2-24-14 (1); Enrollment Contract between and Parent, Dated 6-23-13 and 6-26-13 (2); Student’s Attendance Record for the Period 9-9-13 through 2-24-14 (1); Student’s Report Card from the for First Trimester – 2013-2014 school year, dated 11/2013 (11); Description of Program, undated (2); Student’s Daily schedule at – 2013-2014 (2) (19 pages; Parents)

E. Parent’s U.S. Income Tax Return – Form 1040 for 2012 Parent (2 pages; Parents)

F. Payment Schedule Attachment to Enrollment Contract Parent dated 6-23-13 (2 pages; Parents)

I. Parent’s Due Process Complaint Notice, dated 10-24-13 I.H.O. (3 pages; Parents)