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 21, 2014

May 16, 2014

Actual Record Closed Date: May 29, 2014

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2014

Attorney — Student

Attorney — Student

Intern — Student

Interpreter — Student

CSE Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2014

Attorney — Student

Attorney — Student

Student

Parents

Interpreter — Student

DR., Pediatric Neuropsychologist, — Student

(Via Telephone) — Student

Director & Principal, — Student

Class Room Teacher, (Via Telephone) — Student

(Via Telephone) — Student

CSE, DOE representative — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated November 6, 2013, I was appointed to hear this matter. Timely extensions were given. A pendency hearing took place on March 21, 2014 and the hearing in chief was held on May 16, 2014.

The Parent was represented by counsel, a District 15 representative argued the District’s case. The Department of Education, “DOE”, entered the student’s Individual Education Plan, (“IEP”), Final Notice of Recommendation and a mapquest of the recommended placement in support of its case. (See Exhibits 1, 2, 3) The parent submitted 20 exhibits, “A-T” and called 4 witnesses in support of her position. The following witnesses testified on behalf of the parent: the Director of the the student’s teacher, who evaluated the student, the parent’s advocate and the parent. (List of Exhibits annexed hereto as “Attachment A”).

DEPARTMENT OF EDUCATION’S POSITION

The Committee on Special Education, (“CSE”) met on April 17, 2013 and recommended that the student attend a special class with a student to staff ratio of 12:1 in a public school in Brooklyn with the related . The DOE asserts that the CSE’s recommendation meets the student’s needs and provides the student with a free and appropriate public education, (“FAPE”).

PARENT’S POSITION

The parent asserts that the DOE failed to offer the student a free and appropriate public education (FAPE) for the 2013-2014 school year; (2) that the is an appropriate placement for student; (3) that the equities in this case favor the parent, and (4) that due to the parents financial status, she is therefore entitled to direct payment for the cost of tuition at for the 2013-2014 school year.

FINDINGS OF FACT

The student old child who is classified with . Her classification is not in dispute. The student’s current teacher testified that the who will and will with her assignments. (TR 98) The witness testified that the student requires constant attention to make sure that she understands the lesson. The Director testified that the student is creative and that she has seen growth in the student’s academic performance and her social interaction. (TR 60, 69, 77)

The pediatric testified that she met with the student 4 times and performed an evaluation. The witness testified that the who, at the time she was tested, was already her academic abilities. The witness testified that the “ someone [who would be] constantly asking the ….” The witness testified that and that the perceptual area is also an . The witness testified that due to the student’s significant deficits she recommended a setting that provides very individualized attention. (TR 32, 33, 34)

The neuropsychologist testified was an appropriate setting for the student due to the low teacher to student ratio, and the level of individualized attention given to each student. The witness also testified that is appropriate as “it provides a safe setting for someone who is as sensitive, insightful and aware as this student.” (TR 39)

The Director of testified regarding the school and the student’s program. She testified that is small and that she knows all the students. She also testified that she spends a lot of time with this student on Friday afternoons. The witness testified that the class contains 8 students and 2 teachers. She testified that the , very quiet and can easily because as though she is working, but that unless she is checked and given instructions, , the witness testified, that once the student . The witness testified that her from seeking assistance. The witness testified that one of the student’s goals is to The witness testified that she is progressing in this area. (TR 89)

The witness testified that all the classes have an English Language Arts block that's an hour and a half long in the morning. During the home room the teacher is usually doing spelling and then the students break out into two groups. Four of the students meet with their remedial instructors and the other students stay in the class room for small group instruction; and then after forty five minutes the students shift. All of the students receive remedial time, gym, science and math, lunch, social studies and writing. (TR 63)

The witness testified that when the student began, her skills were mostly on the and in some areas, such as The school administers the Woodcock reading mastery and the KeyMath each March to assess the student’s performance. The witness testified that the student has made progress and her skills are now . (TR 64, 65, 66, 86) The witness testified that she did not believe the recommended placement was appropriate because the student requires a small group where she is more comfortable to engage, ask questions, and interact. (TR 69) The witness also testified that the student has made progress socially and interacts with students. (TR 78, 79)

The student’s teacher testified the student sits right next to her and that she provides a great deal of one on one instruction. She testified that the student in vocabulary and understanding concepts and that she of the subject. The witness testified that “e[E]ven when she's doing her work, she (TR 97, 98)

The student’s teacher testified that she has seen quite a bit of progress in the student’s spelling, vocabulary, reading and expressive language. Additionally, the witness testified that the student has

The parent testified that she received the final notice of recommendation in August and that her daughter was recommended for in a public school in Brooklyn. The parent testified that she and her daughter went to see the school. She testified that it took an hour and forty-five minutes to get to the school from her home in Manhattan. She testified that the the school was appropriate for her child. The parent testified that the student would not and that the school was too far. The parent also testified that she has very limited financial resources, but, that she is indebted to the school for the student’s tuition and seeks direct payment to the school. A copy of her tax return was entered into evidence to support the parent’s request for direct payment to the Sterling School. (TR 135, 138)

CONCLUSION

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were in adequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the child a FAPE (id.; see 20 U.S.C. § 1412[a] [10] [C] [ii]; 34 C.F.R. § 300.148).

The first step in analyzing a tuition reimbursement claim is to determine whether the district offered to provide a FAPE to the student (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensure an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The evidence is persuasive to establish that the self-contained program with a class ratio a community school does not provide the level of support the student requires to make meaningful educational progress. The student’s difficulties combined with her individualized setting to ensure that she is making educational progress. The testimony of the witnesses clearly demonstrated that this student does not and requires to be to make certain she understands the assignment in order for the student to obtain meaningful educational benefit. Accordingly, the student’s 2013-2014 IEP fails to program.

The second inquiry to be determined is whether the services selected by the parents are appropriate. The relevant inquiry requires that a private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). 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. 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).

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 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).

Under this analysis, I am persuaded that was an appropriate unilateral placement for the 2013-2014 school year. The evidence established that the program addressed the student's unique special education needs and that the student made educational and social progress.

The third inquiry to be addressed is whether equitable considerations support the awarding of tuition. The parent timely notified the district of her concerns about the appropriateness of the student's April 2013 IEP, she made repeated efforts to visit the assigned public school site, and she timely notified the district of her intention to enroll the for the 2013-14 school year. In this case, the evidence established that the parent cooperated in the CSE process. Accordingly, equitable considerations support the parent's request for an award of tuition reimbursement. Finally, the parent asserts that she is entitled to an award of retroactive direct payment of the student's tuition in this case because she lacks the financial means to pay the student's tuition costs at the private school.

The parent’s testimony and documentary evidence supports her claim that she does not have the financial means to pay the tuition in advance and await reimbursement from the district. With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . .parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769F. Supp. 2d at 428; see also A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11[S.D.N.Y. Sept. 23, 2013]). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The . held that, in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. ., 769 F. Supp.2d at 430).

The parent submits her tax return to show she does not have the financial ability to pay the tuition and to support her request for direct payment to the school. The parent’s submission is persuasive to establish that she does not have the resources to front the costs of the school and that it is appropriate to order direct payment to the school. (Exhibits P, Q)

ORDER:

The DOE shall directly pay the student’s tuition for the 2013-2014 school year in the within 30 days of receipt of the invoice and proof of attendance. The DOE shall provide the student with suitable transportation to the .

Dated: June 10, 2014 Roslyn Roth mv

ROSLYN ROTH, ESQ. RR;mv 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 THE RECORD

Parent

A. Decision dated 5/29/13 8 pages

B. Impartial Hearing Request dated 11/6/13 6 pages

C. FNR dated 8/8/13 1 page

D. Letter in response to FNR dated 8/15/13 3 pages

E. 10 Day Notice dated 8/23/13 3 pages

F. FNR dated 10/25/13 1 page

G. Letter to Dr. dated 10/27/13 2 pages

H. IEP dated 4/ 17/13 12 pages

I. Evaluation dated 2012 19 pages

J. Subpoena to CSE dated 3/7/14 3 pages

K. Subpoena dated 3/7/14 3 pages

L. Subpoena to CSE dated 3/7/14 3 pages

M. School Report dated 3/2014 6 pages

N. Report Card dated 11/2013 26 pages

O. Letter dated 12/23/1999 1 page

P. 2013 Tax Return 2/2/14 2 pages

Q. Sterling School Enrollment Contract dated 9/9/13 2 pages

R. DOE Due Process Response dated 12/16/13 4 pages

S. Classroom Observation dated 2/2013 1 page

T. 2010 Bilingual Social History 3 pages

THE DEPARTMENT OF EDUCATION

1. IEP dated 4/17/13 12 pages

2. FNR dated 8/8/13 1 page

3. Mapquest dated 3/12/14 2 pages