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: September 30, 2013

November 1, 2013

January 8, 2014

March 4, 2014

Actual Record Closed Date: August 11, 2015

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30,

2013

Esq. Attorney for Parents — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 1, 2013

Esq. Attorney for Parents — Parents

Parent of Student — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 8, 2014

Esq. Attorney for Parents — Parents

Parent of Student — Parents

Teacher at (by phone) — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 4, 2014

Esq. Attorney for Parents — Parents

Parent of Student — Parents

Headmaster of (by phone) — Parents

at School (by phone) — Parents

District and New York City Department of Education Representative — DOE

The Matter of .., (hereinafter referred to as “Student”) came before

Impartial Hearing Officer Timothy 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, first on September 30, 2013 for a determination of the pendency program to which the Student would be entitled during the course of this administrative proceeding, and thereafter, on November 30, 2013; January 8, 2014 and March 4, 2014 for the hearing on the merits of the case. The hearing concluded on March 4, 2014, subject to the submission by Parents of an Affidavit by one and the opportunity by District to cross-examine said if desired, and the submission of Closing Statements. By notification to the New York City Department of Education’s Impartial Hearing Office, Hearing Officer recused, effective July 15, 2015, whereupon I was appointed as the Impartial Hearing Officer having jurisdiction of this proceeding as of July 15, 2015. I was provided by the Impartial Hearing Office with copies of Transcripts of Proceedings and relevant exhibits on August 11, 2015, which I consider the Actual Record Close Date.

This proceeding was commenced by Student’s Parents, by the filing of a Due Process Complaint Notice sent on Parents’ behalf by , Educational Advocates, to the New York City Department of Education’s Impartial Hearing Office, dated September 19, 2013 and received by said Office on September 23,

2013.

Parents allege in their Due Process Complaint (Exhibit B) 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, on both procedural and substantive grounds, as a result of which Parents unilaterally placed Student in the at for the 2013-2014 school year. Parents seek in this proceeding reimbursement for Parents’ unilateral placement of Student in the at for the 2013-2014 school year.

. It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents 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 Parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.

Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the Parents 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 Parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that Parents who unilaterally decide to place their child do so at their own financial risk.

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 Parents’ ‘request would cease at that point, for if a district has offered an appropriate program, a Parents’ 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 Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404).

Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ 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 Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the4 agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). It is stated that a FAPE is offered to a student when a 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 v.

Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, such statement is no longer exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent.

Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent’s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

It has been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see 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).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370-

71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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 ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (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). It is this last requirement – that the IEP must be "reasonably calculated to provide some 'meaningful' benefit" - that will guide my review in this matter.

With all of that said, the decision in this matter has been rendered relatively simple by the passage of time and, more significantly, by the failure of District to contest, in any significant manner, Parents’ entitlement to the relief sought. First, District commenced the proceeding by stipulating that Parents were entitled to an Interim Order on Pendency that provided that Student’s tuition at would be paid by District (T.R.5) (I.H.O. Exhibit I ). Thereafter, District stipulated that District’s Committee on Special Education (C.S.E.) had failed to prepare an Individualized Education Program (I.E.P.) for Student for the 2013-2014 school year (T.R.16). District also conceded Prong One of the Burlington Requisites (T.R.13), admitting that it failed to provide Student with a free, appropriate public education for the 2013-2014 school year.

Having made such concession, it became necessary that I review the appropriateness of the unilaterally-selected placement of Student in the at . As previously noted, Parents have the burden of establishing the appropriateness of such placement. Parents presented the testimony of , and . Witness testified that he was a teacher in the at and also taught an . While Witness was a teacher in the in which Student was enrolled, he was not Student’s teacher in that program. Rather, Witness taught Student in his . Witness provided much description of that class, noting that it went only as fast as its slowest learner, worked extensively on reading deficits and the development of writing skills (T.R.28). Witness was familiar with Student’s deficits and described in detail the manner in which Student was instructed and the progress Student was able to achieve during the 2013-2014 school year. Witness was Student’s during the 2013-2014 school year. Testimony was provided by Witness regarding the particular manner in which the Program was presented and how it directly focused on the deficits exhibited by Student. While the only provides its participants with extra sessions both before the commencement of the regular school day and after the regular school day is over, Witness had the responsibility to be aware of Student’s progress in all of this subject classes (T.R.77-

81). Witness , Headmaster of , has been such since he and his wife founded the School in 1969. The School offers a general education curriculum to students in , and has a total population of , with approximately , predominantly diagnosed with and who are enrolled in the (T.R.54). Witness testified that the was developed by when it sought to become a facility that could offer an appropriate program in a general educational environment to students with learning issues who could, with appropriate supports, function in a general program environment (T.R.53-55).

Witness testified that all of the teachers in the were required to have certification in Special Education (T.R.58). Parents also submitted an Affidavit by , a teacher in the academic program at

(I.H.O. Exhibit III ). According to the contents of that Affidavit, Student’s in the area of , as well as displayed by Student, were appropriately and successfully addressed by the program offered by Mr. . District sought no cross-examination of the

It is my finding and determination, after a review of the testimony of the witnesses appearing in this proceeding, that Parents have successfully borne the burden of establishing the appropriateness of their unilateral placement of Student in the at for the 2013-2014 school year.

I also find the equitable considerations in this matter favor an award of reimbursement to Parents of the costs incurred by their unilateral placement of Student in the at at School for the 2013-2014 school year.

Parent had alerted District, by correspondence dated April 18, 2013, of his willingness to consider any appropriate program offered to Student in a timely manner, but that, failing such, Parent intended to place Student at and seek reimbursement (Exhibit E). The failure of District to meet its obligations to Student in offering an appropriate special education program for the 2013-2014 school year was the sole basis for the need for Parent to proceed with his determination of a unilateral placement. It is my finding and determination that Parents have appropriately established that equitable considerations favor Parents in their application for reimbursement of the tuition paid by them for Student’s attendance in the at for the 2013-2014 school year.

Parent signed a Contract with for Student’s attendance at that facility on January 30, 2013, which was accepted by the School on March 11, 2013 (Exhibit G). That Contract required Parents to pay

Dollars tuition, plus ) Dollars for the

, a Combined Fee of ) Dollars, and a

Dollars, for a total of

) Dollars. Parent has submitted proof of payments made to for the 2013-2014 school year totaling and ) Dollars

(Exhibit H). However, complicating the computation of determining the amount of reimbursement, if any, to which Parent may be entitled, is the fact that Student was provided with a Pendency placement for the 2013-2014 school year, beginning on September 19, 2013, at District expense. The Interim Order on Pendency (I.H.O. Exhibit

I)), issued by I.H.O. on November 19, 2013, covered the annual tuition payment of ; a combined fee not to exceed ; a fee not to exceed ; and a bookstore fee not to exceed , all totaling

) Dollars. Thus, I calculate that there was a difference in tuition and related costs between those awarded by Pendency and the actual costs incurred by Parents of Dollars.

Further, an examination of the New York City Department of Education calendar for the 2013-2014 school year discloses that, at most, days of the 2013-2014 school year were not covered by the Interim Order on Pendency. As the 2013-2014 school year has long since been concluded, the issue on which I am able to rule is limited to those days of the 2013-2014 school year which were not covered by the provisions of the Pendency Order, for any other or further relief has been rendered moot by the passage of time and the provisions of the Interim Order on Pendency. Clearly, I am unable, because of the Pendency in place as ordered by I.H.O. , to award any reimbursement to Parents for tuition and other costs associated with Student’s attendance at during the 2013-2014 school year that were paid by District. Parents are entitled, therefore, only to be reimbursed for those costs related to Student’s attendance at that have not been paid through the provisions of the Interim Order on Pendency. However, it is clear that had been paid by Parent, prior to the commencement of the 2013-2014 school year, far more than it might have been deprived of by the uncovered days of that school year. It is, then, up to to return to Parents all that portion that Parent paid to that exceeded the amounts due for Student’s attendance during the 2013-2014 school year.

As Parent has prevailed on all issues presented in this proceeding, it is my finding and determination that Parent is entitled to reimbursement of such sums as were not paid by the Department of Education to , for Student’s attendance thereat for the 2013-2014 school year. I will direct District and the Department of Education to compute such sum and pay the same to Parent. I will leave it to Parent to seek reimbursement from for monies paid by Parent in April, May and June (Exhibit H) that exceeded Parents’ responsibility.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District and the New York City Department of Education compute such sums as were not paid by the Department of Education to for Student’s attendance thereat for the 2013-2014 school year pursuant to the Interim Order on Pendency - and pay the same to Parent.

Dated: August 18, 2015

JAMES P. 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 SEPTEMBER 30, 2013

A. Impartial Hearing Request, dated 9-19-13 (6 pages; Parents)

B. Finding of Fact and Decision, dated 6-17-13 (13 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 1, 2013

C. May 3, 2012 I.E.P. (12 pages; Parents)

D. Fall 2013 Class Schedule (1 page; Parents)

E. April 18, 2013 – Parent Letter to C.S.E., with Proof of Delivery (2 pages; Parents)

F. October 18, 2013 – Corrected Impartial Hearing Request (5 pages; Parents)

G. 2013-2014 Contract (4 pages; Parents)

H. Proof of Payment – various dates (4 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON JANUARY 8, 2014

None

DOCUMENTATION ENTERED INTO RECORD ON MARCH 4, 2014

I. Interim Order on Pendency, issued by, IHO dated October 19, 2013; Corrected November 19, 2013 II 4 Affidavit of, sworn to on March 11, 2014 IHO III 12 Parent’s Closing Brief, dated March 24, 2014 (6 pages; Parents)